D. P. MOHAPATRA, J. ( 1 ) THIS appeal is against the order passed by the learned Sessions Judge, Ganjam, Berhampur convicting the appellants for offences under sections 148 and 302 read with section 149 of the Indian Penal Code (for short I. P. C.) and sentencing each of them to undergo imprisonment for life for the offence of murder and for imprisonment for two years for the offence of forming unlawful assembly. ( 2 ) THE prosecution case in brief is that the appellants belong to the Gola community of village Jhadabai. Deceased Raghunath Das, after retiring from military service came and settled in the said village about 25 years prior to the occurrence and was giving medicines to the people of the village, 88 well as the neighbouring villages. A section of people of the village including the appellants suspected that the deceased was practicing witchcraft and was responsible for the death of some persons including children. It was also suspected that by such practice, he had enticed away the young wife of appellant No. 2 and committed sexual intercourse with her. In the early morning of 6. 7. 1980 the deceased was brushing his teeth near a tube-well within the school compound of the village. At that time the appellants came there in a procession. Appellants 1 and 2 were armed with swords and the rest were armed with lathis. They surrounded the deceased and assaulted him by means of the swords and lathis. His head was severed from the body. Appellant No. 2 held the severed head in one hand and the blood stained sword in another. Appellant No. 1 also held the blood stained sword in his hand. Thereafter the appellants in a body came out of the school compound in a procession and went towards the village shouting Kali Maa Ki Jayt. In a procession they came to Purusottampur Police Station, where appellant No. 2 produced the severed head and the blood stained sword. Appellant No. 1 similarly produced the blood stained sword and made a station diary entry (Ext. 2 ). In the mean while P. W. 1, son of the deceased lodged F. I. R. , (Ext 15 ). In a procession they came to Purusottampur Police Station, where appellant No. 2 produced the severed head and the blood stained sword. Appellant No. 1 similarly produced the blood stained sword and made a station diary entry (Ext. 2 ). In the mean while P. W. 1, son of the deceased lodged F. I. R. , (Ext 15 ). Thereafter investigation commenced and after close thereof charge-sheet was submitted against the appellants for having committed offences under sections 147, 148 and 302 read with section 149 I. P. C. ( 3 ) THE appellantts defence was denial of their participation in the murder of the deceased. ( 4 ) THE learned Sessions Judge on consideration of the evidence placed by the prosecution, came to hold that the appellants by forming an unlawful assembly and in prosecution of the common object of the said unlawful assembly made a brutal attack on the deceased killing him on the spot by severing his head from the body. Therefore, he recorded the order of conviction and sentence as already referred to above. ( 5 ) P. W. 14 was the Medical Officer who performed the autopsy of the dead body of the deceased and submitted his report (Ext. 12 ). According to his report, the head of the deceased was completely severed from the trunk, there were ten incised wounds on the dead body and nine contusions and abrasions of different sizes. In his opinion, the head and trunk belonged to the same individual. The injuries were ante-mortem. The incised wounds were caused by sharp cutting weapon and the contusions and abrasions were caused by hard and blunt object. The injuries on the neck were fatal in ordinary course of nature. Death was due to shock and haemorrhage as a result of decapitation. The evidence of the medical officer was not challenged. It is, therefore, apparent that the death of the deceased was due to homicide. ( 6 ) MR. Jitamitra Mohanty learned counsel appearing for the appellants vehemently urged that appellants 9 to 12 and 15 were not at all involved in the occurrence and there is no evidence to implicate them with the murder of the deceased. Therefore, they are entitled to be acquitted. ( 6 ) MR. Jitamitra Mohanty learned counsel appearing for the appellants vehemently urged that appellants 9 to 12 and 15 were not at all involved in the occurrence and there is no evidence to implicate them with the murder of the deceased. Therefore, they are entitled to be acquitted. With regard to other appellants, his argument was that every body in the village was convinced that the deceased was practising witchcraft and was responsible for the death of some persons including children and the enticement of the young wife of appellant No. 2. They wanted to get rid of him and so in good faith and firmly believing him to be a sorcerer killed him. Therefore, they are entitled to the protection under Section 79 of the I. P. C. Learned Additional Government Advocate urged that it was a pure and simple case or broad day light murder and so they are not entitled to the protection of the aforesaid section. ( 7 ) P. WS. 3 and 12 were eye-witnesses to the murder. P. Ws. 1, 4 to 8 and 13 were post occurrence witnesses. P. W. 2 was a Medical Officer who examined the wife of appellant No 2. It is necessary to consider first the evidence of the eye-witnesses P. W. 3 is a resident of the village. In the morning of today of occurrence he came to the rice mill of the village with paddy in a basket for boiling and milling the same. As soon as he reached Shere, he heard sounds coming from the village side, when he looked in that direction he found that a man was brushing his teeth near the tube-well within the school compound. A large number of persons forming a mob came from the village and went inside the school compound towards the tube-well. In the mob were appellants 1 and 2 turned with swords the appellants 3 to 8, 13, 14 and 16 were and armed with lathis. These appellants shouted and assaulted the person who was brushing his teeth near the tube-well. Seeing this he came near the school compound. From that place he saw that appellant No. 2 was holding a severed human head in one hand and a sword in the other. Appellant No. 2 was holding a blood stained sword. These appellants shouted and assaulted the person who was brushing his teeth near the tube-well. Seeing this he came near the school compound. From that place he saw that appellant No. 2 was holding a severed human head in one hand and a sword in the other. Appellant No. 2 was holding a blood stained sword. Both of them proceeded towards the village followed by others shouting Kali Maa Ki Jayt. He recognised that the severed head was that of deceased Raghunath Das popularly known as doctor in that locality. Soon thereafter, the sons and daughter of the deceased arrived. In cross-examination he stated that he did not know if the deceased was making Jhada Phunka. As be was at some distance, he could not observe with which weapon exactly the deceased was assaulted to death. He practically became dumb at the sight and did not shout. He did not also attempt to call any body else. He did not send anyone to the house of the deceased. A close scrutiny of the evidence of this witness will show that he had no axe to grind against the appellants. Being a villager it was not unusual that he got up early in the morning to transact his own business and happened to be present at a little distance from the place of occurrence and saw the same from the beginning to the end. He saw that a man was brushing his teeth near the tube- well within the school compound and was assaulted by the appellants named by him who were variously armed with deadly weapons. After the assault, he found that appellant No. 2 came out with the severed head of the deceased. Therefore, he had no reason to doubt that the deceased was assaulted to death and his head was severed in a very cruel manner from the body and thereafter those appellants, responsible for his death, went towards the village in a procession obviously out of joy shouting Kali Maa Ki Jay. It is true that he did not raise any voice of protest of did not shout or call any other person. It was but natural, because he was struck dumb by the ghastly scene. Therefore, for non-interference, no fault can be found with his evidence. On consideration of his evidence as a whole, we find no reason to disbelieve him. It is true that he did not raise any voice of protest of did not shout or call any other person. It was but natural, because he was struck dumb by the ghastly scene. Therefore, for non-interference, no fault can be found with his evidence. On consideration of his evidence as a whole, we find no reason to disbelieve him. ( 8 ) P. W. 12 is the son of the deceased. He stated that early in the morning of the day of occurrence he came out of the house to pass urine. He found that 15 to 20 persons of Gola community including the appellants of the village armed with swords and lathis were coming from village side. They entered inside the school compound and came near the tubewell where his father was brushing teeth. They went near his father, surrounded and assaulted him. His father cried aloud hearing which his Sister (P. W. 13) came out of the house. Both of them started towards the school compound just when the appellants came out of it. He saw that appellant No. 2 was holding the severed head of his father in one hand and a blood stained sword on the other. Appellant No. 1 was also holding a blood stained sword in his hand. They were followed by appellants 2 to 14 and 16 whom he named. Out of fear the witness and P. W. 13 came back to the verandah of their house. The appellants passed by their house shouting Kali Maa Ki Jay. He saw the body of his father lying inside the school compound with several marks of injury. He did not call for help because all the people of the locality were Colas by caste. In cross-examination he stated that when he came out of his house he saw P. W. 3 standing near the rice mill. This statement lends corroboration to the presence of the other witness of the occurrence not far from the place of murder. On consideration of his evidence as a whole we do not find any material to disbelieve his version although he was closely related to the deceased. This statement lends corroboration to the presence of the other witness of the occurrence not far from the place of murder. On consideration of his evidence as a whole we do not find any material to disbelieve his version although he was closely related to the deceased. ( 9 ) WE would now deal with the evidence of a few post-occurrence witnesses P. W. 4, a young girl, stated that early in the morning of the day of occurrence she came near the tubewell inside the school compound to take water. She found the deceased brushing teeth near the tube-well. While she was returning from the tube-well with water to her house, she heard bulla coming from the side of the village. When she looked back she saw that appellants 1 and 2 holding swords and appellants 3 to 8, 14 and 16 and some others armed with lathis entering inside the school compound. Out of fear she went inside the house. Sometime after she came out and found that the sons and widow of deceased Raghunath Das were weeping. In cross-examination she stated that although some people of the village suspected that the deceased was practising witchcraft he was not actually doing so. There is nothing to disbelieve her evidence. ( 10 ) P. W. 13 is the daughter of the deceased. She stated that early in the morning of the day of occurrence her father came to the tube-well within the school compound to take his bath. When she was inside her room, P. W. 12 informed that their father had been assaulted by the Gola people. She came out of the house and along with P. W. 12 proceeded towards the school compound. She saw that the Gola people were coming out and appellant No. 2 was holding the severed head of her father in his left hand and a blood stained sword in his right hand. Appellant No. 1 was holding a blood stained sword in his hand. They were followed by appellants 3, 4, 6 to 14 and 16. They were shouting Kali Maa Ki Jay. Out of fear she went inside the house. Although she is closely related to the deceased, her evidence as a whole is convincing. ( 11 ) P. W. 1, another son of the deceased, stated that he used to sleep in the co-operative society house. They were shouting Kali Maa Ki Jay. Out of fear she went inside the house. Although she is closely related to the deceased, her evidence as a whole is convincing. ( 11 ) P. W. 1, another son of the deceased, stated that he used to sleep in the co-operative society house. On the day of occurrence at about 5. 30 A. M. he came out of the house to brush his teeth and heard hulla coming out of the village school. Out of curiosity he went near the school and found that appellant No. 2 was holding the severed head of his father in his left hand and the blood stained sword in the right hand. Appellant No. 1 was holding a blood stained sword in his hand. Both of them were followed by appellants 3 to 8 and 11 to 13 and many others were holding lathis in hands. They were shouting Kali Maa Ki Jayt. After the mob proceeded towards the village he came to the place of occurrence along with P. Ws. 12 and 13 and found the dead body of his father lying near the tubewell. He proceeded to the police station and lodged F. I. R. (Ext. 15 ). This witness, though is the son of the deceased, corroborates the evidence of the others and there is no flaw in his cross-examination so as to discard his evidence. ( 12 ) P. WS. 5, 6, 7, 8 and 15, all post-occurrence witnesses, stated that early in the morning of the day of occurrence they saw appellant No. 2 holding the severed head of the deceased in one hand and a blood stained sword in the other. They also saw appellant No. 1 with a blood stained sword in his hand. They were followed in a procession by some of the accused persons named by them shouting Kali Maa Ki Jay. ( 13 ) IT will appear from the evidence of P. Ws. 9, 15, junior Sub-Inspector of Police of Purusottampur Police Station, and P. W. 17, the Investigating Officer that appellant No. 2 along with appellant No. 1 and some other appellants arrived at the police station with the severed head of the deceased. ( 13 ) IT will appear from the evidence of P. Ws. 9, 15, junior Sub-Inspector of Police of Purusottampur Police Station, and P. W. 17, the Investigating Officer that appellant No. 2 along with appellant No. 1 and some other appellants arrived at the police station with the severed head of the deceased. ( 14 ) AN analysis of the aforesaid evidence will show that all the appellants except appellants 9 to 12 and 15 formed an unlawful assembly and in prosecution of the common object of the assembly committed brutal murder of the deceased. With regard to the participation of appellants 9 to 12 and 15 there is vital discrepancy between the evidence of the eye-witnesses (P. Ws. 3 and 12 ). Therefore, it is doubtful if they had actually participated in the murder of the deceased, al rough after the offence had been committed they might have been present either at the place of occurrence or had followed the procession. ( 15 ) MR. Mohanty took shelter under the exception provided in section 79 I. P. C. and supplemented his argument by a few decisions which we shall discuss presently. The bone of his contention was that the appellants believed in good faith that the deceased was practicing witchcraft in the village and was responsible for the death of some persons including children and had further enticed away the young wife of appellant No. 2 for the purpose of sexual intercourse. Therefore, they thought that they were within their legal rights to eliminate the deceased. We find tile contention entirely unacceptable and the appellants are not entitled to the exception provided in section 79 I. P. C. for the simple reason that even if they had entertained the belief wrongly though, that the deceased was practising witchcraft and was a notorious person, they had no right under common law to take the law into their own hands and. kill a human being. The decisions cited by Mr. Mohanty have no relevance to the facts of the case. kill a human being. The decisions cited by Mr. Mohanty have no relevance to the facts of the case. In Waryam Singh v. Emperor1 the accused assaulted a man believing him to be a ghost and the assault proved fatal, In Banda Kui v. Emperor2, the accused believed in good faith at the time of making the assault that the person assaulted was not a living human being but a ghost and some object other than a living human being and thus caused fatal injuries to him. In Chirangi v. State3, the accused in a moment of delusion, considered that his own son, to whom he was attached, was a tiger and he accordingly assaulted him with an axe, thinking by reason of a mistake of fact that he was justified in destroying the deceased whom he did not regard to be a human being but a dangerous animal. In State v. Ram Bahadur Thapa4, the accused thought that the persons whom he had injured were ghosts although they were females collecting mahua flowers under a mahua-tree in all these cases it was held that the accused persons acted in good faith and committed mistake of fact and law without intending to commit murders or other offences. Therefore, they were given benefit of section 79 I. P. C. But in the present case, the appellants knew that the deceased was very much a living person with a family and yet they killed him in cold blood in a body. So, there was neither any good faith nor any mistake of fact or law by which the appellants could be protected by section 79 I. P. C. If to a case of this nature the exception extended by section 79 is made applicable, there shall be murders unlimited. ( 16 ) IN the ultimate analysis, we agree with the findings recorded by the learned Sessions Judge with regard to the appellants except appellants No. 9-B. Kasinath Patra, No. 10-B. Biswanath Patra, No. 11-B. Tameya Patra, No. 12. G. Trinath Patra and No. 15. G; Shyam Patra who are to be given benefit of doubt on account of discrepancy with regard to their names in the evidence of eyewitnesses to the occurrence. Therefore, the order of conviction and sentence in respect of all the appellants except the aforesaid appellants cannot be interfered with. G. Trinath Patra and No. 15. G; Shyam Patra who are to be given benefit of doubt on account of discrepancy with regard to their names in the evidence of eyewitnesses to the occurrence. Therefore, the order of conviction and sentence in respect of all the appellants except the aforesaid appellants cannot be interfered with. ( 17 ) IN the result, the appeal is allowed in part. Appellants B. Kasinath Patra, B. Biswanath Patra. B. Tamaya Patra, G. Trinath Patra and G. Shyam Patra are acquitted of the charges and should be set at liberty forthwith. In respect of the rest of the appellants, the order of conviction and sentence is affirmed. ( 18 ) D. P. Mohapatra, J.- I agree. .