JUDGMENT RAGHUNATH RAY, J. 1. INTRODUCTION Deep rooted prejudices and superstitious beliefs of the Middle Ages have not yet died down amongst the die-hard members of the tribal community even on the threshold of the millennium. That is why towards the last decade of the nineteenth century in a remote hamlet of Purulia district a sexagenarian tribal widow was done away with by some of the co-villagers in a ruthless manner in the presence of her siblings, other family members and co-villagers since it was suspected that because of her witchcraft a fellow villager's wife suffered protracted ailments. Background Facts 2. ABOUT more than two decades and a half ago in the early hours of the autumn morning one Keshari Mahatani was targeted for her magic power having evil effects upon family members of the villagers. Having been intercepted on her way back from a nearby pond accompanied by Bijoli Mahato, her daughter in law, PW 4 she was gheroed on all sides by the afore-named five accused armed with Tabla, Tangi and lathi. In response to their hue and cry, her two sons, other relatives and co-villagers reached the P.O. and witnessed a dastardly attack perpetrated on the wretched widow causing her instantaneous death. Accused, however, made good their escape. Such a ghastly murder was a fall out of yesternight's altercation between the victim and accused who had been to her house for extending threat over the issue of exercise of magical powers causing evil effects upon the villagers. Registration of Police Case and Submission of charge-sheet :- Pursuant to an FIR, portraying gruesome details of the tragic incident lodged by Laxmi Mahato, PW 1, the eldest son of the unfortunate victim, Jhalda P.S. Case No. 110/93 dated 27.03.93 under section 302/34 IPC was registered for investigation and the case was endorsed to S.I. of Police B.B. Samaddar for investigation. In course of investigation the I. O. since deceased examined the available witnesses and recorded their statements under section 161 Cr. P.C. He also seized the incriminating weapon 'Tangi' under a proper seizure list in the presence of local witnesses. A sketch map of the P.O. was also prepared by him. He also collected P.M. Examination Report during investigation. On completion of investigation he submitted charge-sheet under section 302/34 IPC against all the FIR named five accused. Commitment and framing of charge :- 3. A sketch map of the P.O. was also prepared by him. He also collected P.M. Examination Report during investigation. On completion of investigation he submitted charge-sheet under section 302/34 IPC against all the FIR named five accused. Commitment and framing of charge :- 3. SINCE the case was Sessions Triable one, the ld. Judicial Magistrate, First Class, 4th Court Purulia committed the same to the Court of Sessions vide his order dated 12.05.97 in G.R. Case No. 1255 of 1993. After such commitment of the case, ld. Sessions Judge, Purulia considered the question of framing of charge under section 302/34 IPC with reference to materials on record and submission advanced by both sides Head of the charge 4. THUS, all the Appellants being arrayed in Sessions Trial No. 5 of 1998 arising out of sessions case No. 37 of 1997 before the ld. Sessions Judge, Purulia were asked to answer the following charge :- "That you, on or about 27th day of September, 1993 at village Khairi within the police station Jhalda, District Purulia, did commit murder of one Keshari Mahatani wife of late Lalu Mahato of the aforesaid village in furtherance of common intention of all of you and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance." All of them pleaded not guilty to the charge so read over and explained to them. Accordingly, the appellants were put on trial. The defence case, as is gathered from the trend of cross-examination of prosecution witnesses and appellants' examination u/s. 313 Cr. P.C. is the plea of innocence, denial and false implication. According to the defence, the incident as alleged did not take place in the manner and place as indicated by the prosecution. The Trial :- 5. ON consideration of entire evidence both ocular and documentary, ld. Sessions Judge Purulia, opined that the prosecution has fairly succeeded in bringing home the charge against all the five appellants. All of them were found guilty of offences u/s 302/34 IPC and were convicted thereunder accordingly. They were sentenced to suffer Rigorous Imprisonment for life each and to pay a fine of Rs. 1000/- each, in default, to suffer further Rigorous Imprisonment for one month each for the offence u/s. 302 IPC. read with section 34 IPC. by the ld. trial Judge vide judgement and order dated 16.05.2000. In the Appeal :- 6. They were sentenced to suffer Rigorous Imprisonment for life each and to pay a fine of Rs. 1000/- each, in default, to suffer further Rigorous Imprisonment for one month each for the offence u/s. 302 IPC. read with section 34 IPC. by the ld. trial Judge vide judgement and order dated 16.05.2000. In the Appeal :- 6. FEELING aggrieved, the appellants have preferred this appeal challenging the legality and / or validity of the judgment and order impugned. Appearing on behalf of the appellants in support of the appeal Mr. Chatterjee assailed the impugned Judgement and order mainly on the following grounds :- (1) Since most of the witnesses rushed to the P.O. in response to a hue and cry, they have had no opportunity to witness the incident with their own eyes. Moreso, whenever distance between the P.O. and the respective houses of the witnesses is not available from the materials on record. (2) In view of enmity between the relations of the deceased and the accused, relatives of the victim should be regarded as interested witnesses and no reliance should be placed upon them. (3) FIR (Ext. 1) does not disclose that Bijoli Mahato was present when incident occurred and as such the subsequent embellishment claiming her presence at the P.O. as an eye-witness must be discarded. (4) FIR states that many persons witnessed the incident but save and except Raghu and Binode, no other independent witnesses came to the witness box to corroborate the version of the FIR. (5) Almost all the witnesses have stated in one voice that the alleged incident took place near the house of Buka but strangely enough Buka who could have been a natural witness has not been examined in support the prosecution case. 7. IN the second phase of his argument Mr. Chatterjee, however, submits that even if eye- witnesses' account is taken on their face value, at best, three appellants namely (1) Bhaktu Gorain, (2) Surendra Gorain, and (3) Ranjit Gorain could be held liable for the death of the victim. Since none of the witnesses has indicated any overt act by the rest two accused (i)Bhandu Gorain and (ii) Rajen Gorain who were mere silent spectators to the incident of alleged assault, and had no arms with them at the material point of time. Any intention of causing death to the victim can be attributed to none of them. Since none of the witnesses has indicated any overt act by the rest two accused (i)Bhandu Gorain and (ii) Rajen Gorain who were mere silent spectators to the incident of alleged assault, and had no arms with them at the material point of time. Any intention of causing death to the victim can be attributed to none of them. Therefore, both these appellants cannot be held liable for commission of culpable homicide. 8. IN this context, he has referred to a decision of the Hon'ble Apex Court reported in (2003) SCC (Cri) SC 544 [Lallu Manjhi and Anr., Appellants vs. State of Jharkhand, Respondent], wherein it is held that in a case where investigation is defective because of the INvestigating Officer's failure to prepare any site plan of place of occurrence and also to send samples of blood for chemical examination and also to recover and seize any weapon of offence, conviction cannot be upheld. That apart, no witness of the locality who could have been present near the place of occurrence at the time of incident has been interrogated. IN such a situation the version of the incident given by the prosecution witnesses, who are also interested witnesses on account of their relationship with the deceased and being inimically disposed against the accused would be highly exaggerated and could not be fully corroborated by the medical evidence and such evidence should not be relied upon for the purpose of recording conviction of the accused. By referring to another ruling of the Hon'ble Apex Court reported in 1977 Supreme court cases (Cri) 474 [Ram Lakhan Singh and Others, Appellants vs. State of Uttar Pradesh, Respondent], it is argued by him that it is the duty of prosecution to examine independent witnesses present at the scene of occurrence and the failure to examine witnesses named in the FIR should be held fatal. In such circumstances, adverse presumption under section 114(g) of the Evidence Act can be drawn against the case of the prosecution. 9. RELYING upon another ruling of the Hon'ble Apex Court reported in AIR 1977 Supreme Court 1614 [Hanuman, Appellant vs. State of Haryana, Respondent], it is argued by the ld. counsel for the appellant that non-examination of Buka Mahato as a witness is fatal for the prosecution since the entire incident occurred in front of his house. 9. RELYING upon another ruling of the Hon'ble Apex Court reported in AIR 1977 Supreme Court 1614 [Hanuman, Appellant vs. State of Haryana, Respondent], it is argued by the ld. counsel for the appellant that non-examination of Buka Mahato as a witness is fatal for the prosecution since the entire incident occurred in front of his house. Similarly non-examination of the I.O. has also dealt a serious blow to the prosecution case. In such circumstances, it should be reasonably presumed that the prosecution version is an exaggerated one and the benefit whereof must go to the appellants. 10. PER contra it is argued by Mr. Ghosal, ld. Counsel fort the State that there is overwhelmingly sufficient evidence to establish that all the appellants armed with deadly weapons like Tangi, Tabla and Lathi encircled the aged victim and three of them assaulted her with deadly weapons which include sharp cutting instruments. It is further submitted by him that all of them had common intention to kill the victim and as such absence of any overt act on their part is of no consequence in the fact situation of the present case. In this context he refers to paragraphs 9 of a ruling reported in (2006) 1 SCC (Criminal) 790 (Vaijayanti, Appellant. Vs. State of Maharastra, Respondents) and argues that section 34 IPC envisages joint criminal liability of several persons if the act complained of is done by them in furtherance of common intention of all, even though there may not be a positive overt act by some of them. According to him, minor omission / discrepancies as highlighted on behalf of the appellants do not affect the basic stratum of the prosecution case and, therefore, much importance need not be attached to these trifling issues. Profile :- For a proper grasp of the entire prosecution case it would be apt to trace the outline of ten witnesses examined by the prosecution. Of them Laxmi Mahato (PW1), the informant, Sudhir Mahato (PW2), and Ramapada Mahato (PW3), are the sons of the victim and eye-witnesses to the incident. Bijali Mahato (PW4) another eye-witness is the daughter- in law of the deceased. Pratham Mahato (PW5) is the nephew of the victim. Raghu Mahato, PW 6 is a post-occurrence witness. Of them Laxmi Mahato (PW1), the informant, Sudhir Mahato (PW2), and Ramapada Mahato (PW3), are the sons of the victim and eye-witnesses to the incident. Bijali Mahato (PW4) another eye-witness is the daughter- in law of the deceased. Pratham Mahato (PW5) is the nephew of the victim. Raghu Mahato, PW 6 is a post-occurrence witness. Binode Mahato, PW 7, the father in law of Krishna Chandra Mahato, the brother of the informant, had been to the house of the deceased on the occasion of Karam Puja and had an occasion to witness the heinous attack on the mother-in-law of her daughter leading to her instantaneous death. The presence of PWs 6 and 7 at the P.O. has been confirmed by PW 2 in his evidence. Subash Mahato (pw8) is the scribe. Dr. A. K. Hazari, who conducted the Post Mortem Examination of the victim has been examined as PW 9, S. I. Santosh Kr. Das, the then duty officer of Jhalda PS who received the complaint from the informant has been examined as PW 10 since the I.O. of the case left this world of living during pendency of the trial. Discussion :- In order to have a better appreciation of the rival submission made at the Bar in its proper 16. perspective, we would now proceed to scrutinize both ocular and documentary evidence coupled with medical evidence for the purpose of arriving at a conclusion as to whether charge framed by the ld. trial court has been substantiated to the hilt. 17. Laxmi Mahato (PW 1) deposes that she rushed to the P.O. along with his brothers in response to cries of their mother and on their arrival they witnessed that their mother had been surrounded and stopped by the accused persons, and thereafter, Surendra Gorain and Bhaktu Gorain assaulted her mother with a Tangi and a farsa on her head respectively. Ranjit Gorain assaulted her mother by a lathi on her right hand. His mother fell down on the ground and died instantaneously. The contents of FIR (Ext. 1) thus stand corroborated by her testimony. It is established that all the accused persons (1) Bhaktu Gorain, (2) Surendra Gorain, (3) Ranjit Gorain, (4) Bhandu Gorain and (5) Rajen Gorain surrounded his mother. His mother fell down on the ground and died instantaneously. The contents of FIR (Ext. 1) thus stand corroborated by her testimony. It is established that all the accused persons (1) Bhaktu Gorain, (2) Surendra Gorain, (3) Ranjit Gorain, (4) Bhandu Gorain and (5) Rajen Gorain surrounded his mother. Significantly enough, he also divulges the gravamen of the terribly tragic incident by testifying that on the previous night all the five accused persons called her mother a witch and a trouble was going over on that matter at night and, thereafter, on the following day the occurrence took place due to such quarrel. He has proved the FIR (Ext. 1). He further corroborates the contents of FIR and asserts that her mother was killed by accused persons near the house of Buka Mahato. He identified all the accused persons standing on the dock in the court room. He has been cross-examined at length but his testimony remains unshaken. In course of his cross-examination the topography of the place of occurrence has correctly been brought to the fore and a sketch map (Ext. 4) drawn by the I.O. perfectly tallies with this piece of evidence which pinpoints the exact location of the P.O. with accuracy. In his cross-examination he elaborates by deposing that when he woke up on hearing the cries he came to understand that it was the voice of his wife and mother. He came out of the house and saw the accused persons, his mother and wife while other brothers also followed him. The deponent has thus successfully stood the test of cross-examination and nothing has been elicited to show that he has deposed falsely before the Court. In our view this deponent is a wholly reliable witness, we, therefore, feel inclined to repose complete trust on his testimony which further stands corroborated by other witnesses. 18. Sudhir Mahato, the brother of the informant (PW 1), another eye-witness as (PW 2) also corroborates his brother (PW1) on all material particulars regarding assault upon their mother by the accused armed with Tangi, Tabla and Lathi. He further corroborates PW1 and testifies that on the previous night accused persons quarreled with them and abused them on the plea that Surendra's wife was suffering from fever due to witch craft played by their mother on her. He further corroborates PW1 and testifies that on the previous night accused persons quarreled with them and abused them on the plea that Surendra's wife was suffering from fever due to witch craft played by their mother on her. During cross-examination he also forcefully asserts that when he reached the spot, accused gheraoed her mother and the wife of his elder brother. It is also available from his cross-examination that the place where her mother was gheraoed was at the distance of 40-50 cubits from their house. The credibility of this witness has thus not been impeached in his cross-examination. 19. Rampada Mahato, another brother of PWs 1 and 2, an eye-witness to the occurrence had been to the P.O. in response to a hue and cry raised by his mother since deceased and his elder brother's wife PW 4. His evidence tends to show that he saw Surrendra to assault his mother by a Tangi, Baktu by a Tabla, and Ranjit by a lathi on her hand and, thereafter, his mother fell down on the ground. Nothing has been extracted from him in course of his cross-examination to discredit his testimony. 20. Bijoli Mahato (PW 4) is an important eye-witness since she accompanied her mother-in-law in the morning and remained with her firmly till the fateful moment when her precious life was put to an end by the appellants. Her specific evidence is that after washing their face and mouth while they were returning to their house, both of them were intercepted by all the appellants. She further corroborates her husband (PW1) and brother-in- laws (PWs 2 and 3) on the point of assault upon her mother-in-law by three appellants with deadly weapons in front of the house of Buka. Her mother- in-law died instantaneously on the spot in her presence. 21. The most obnoxious part of the prosecution case has also been spelt out in her evidence and she is in tune with other eye-witnesses in this regard. She gives out that on the previous night, the appellants had a quarrel with her mother-in-law who was called by them a witch (Daini). She has also very stoically withstood the rigours of cross-examination and we do not find any reason rather convincing to discard her testimony. She gives out that on the previous night, the appellants had a quarrel with her mother-in-law who was called by them a witch (Daini). She has also very stoically withstood the rigours of cross-examination and we do not find any reason rather convincing to discard her testimony. More so, since she alone was present at the P.O. when the victim was accosted by the accused prior to the arrival of other eye-witnesses. In fact, her impeachable testimony leads us to conclude that she is a wholly reliable witness and as such she can safely be relied upon. 22. PW 6 Pratham Mahato, the cousin of PW 1,2 and 3 is a post-occurrence witness. After hearing a shouting, when he arrived at the P.O. he found that his Jethima (Auntie) was lying dead and the accused namely Bhaktu and Surendra were fleeing away from the spot having a Tabla, and a Tangi in their hand respectively. It is also available from his testimony that the accused had been to their house and abused his Jethima as a witch on the previous night. He has thus narrated the genesis of the ghastly incident of murder of a so-called witch. During his cross-examination he reiterates that he found the accused persons fleeing away through Kuli Rasta (Road) from their house. His testimony also remains unshaken during cross- examination. 23. Raghu Mahato, PW 6, appears to be a chance witness who was grazing cattle at the material point of time. After hearing the shouting "Marlo Marlo" he proceeded towards the Upper Para and found the accused namely (1) Bhaktu Gorain, (2) Surendra Gorain, (3) Ranjit Gorain, (4) Bhandu Gorain and (5) Rajen Gorain to proceed towards their house to the south with arms in their hands. Thereafter, he saw Kesori Mahato lying dead in front of the house of Buka Mahato in the Kuli Road. He also saw injuries on her body. He was also a witness to the Inquest of the dead body. He put his signature (Ext. 2/2) along with others on the Inquest Report (Ext. 2). Thereafter, he saw Kesori Mahato lying dead in front of the house of Buka Mahato in the Kuli Road. He also saw injuries on her body. He was also a witness to the Inquest of the dead body. He put his signature (Ext. 2/2) along with others on the Inquest Report (Ext. 2). Despite rigorous cross-examination the defence has failed to demolish his cogent consistent and convincing testimony, we, therefore, feel inclined to place much reliance on the testimony of this chance witness who had the occasion to see the accused fleeing away with arms immediately after the occurrence and also to find the dead body of the victim with the bleeding injuries on her person. 24. Binode Mahato (PW 7) is the father-in-law of Laxmi's brother. He had been to his son-in- law's house to hand over new cloths to his daughter on the auspicious occasion of Karam Puja. He deposes that on the night of Karam Puja accused abused the mother of Laxmi Mahato as Daini. They were abusing by saying that they would kill her in the morning. It is available from his testimony that while the deponent was going to wash his face in the well of the son-in-law, he heard the shouting "Marlo Marlo" of Keshari Mahatani since deceased and Bijoli the wife of Laxmi. In response to such cry he had been to the P.O. and found that accused namely (1) Bhaktu Gorain, (2) Surendra Gorain, (3) Ranjit Gorain, (4) Bhandu Gorain and (5) Rajen Gorain had already encircled the victim. He further found Surendra Gorain, to assault her by a Tangi on her head and Bhakta to assault her with a Tabla on her head. He also found Ranjit to assault the victim on her hand by a Lathi. It transpires from his cross-examination that he is a resident of a neighbouring village Jilinglahar which is at an audible distance from Khairi village where the incident took place. Despite a bit lengthy cross-examination, nothing has been elicited therefrom to indicate that he has deposed with an ulterior motive before the Court. Such being the position, his testimony inspires confidence in us. 25. Subhash Mahato (PW 8) is a school teacher who scribed the FIR as per instruction of Laxmi Mahato, the de-facto complainant. Despite a bit lengthy cross-examination, nothing has been elicited therefrom to indicate that he has deposed with an ulterior motive before the Court. Such being the position, his testimony inspires confidence in us. 25. Subhash Mahato (PW 8) is a school teacher who scribed the FIR as per instruction of Laxmi Mahato, the de-facto complainant. It is available from the cross-examination of this formal witness that the contents of FIR were read over and explained to the informant, who stated that the same were correctly written. 26. Dr. A. K. Hazari (PW 9), who conducted the Post Mortem Examination of the dead body of the deceased Laxmi Mahato deposes that as per identification by C730 Ramsai Hansda, he held the Post Mortem over the dead body of Reshmi Mahato in connection with Jhalda PS. Case No. 110/93 dt. 27.09.93 and he found the following injuries :- 1) "Incised wound over left side face, orbit and frontal region, vertically placed, measuring 6" x 1" x bone cut. On dissection, muscles left eye-ball cut, left xygomatice bone and frontal bone (left side) cut. Intracrtranial haemorrhage was present. 2) Incised would over occipital region, transfersely placed, measuring 6" x 2" x bone cut. On dissection, blood-clots were present. Occipital bone cut and intractranial hemorrhage was present. 3) Swelling over right fore-arm. On dissection, fracture both bones of mid-shaft of right forearm present. Cause of death was due to shock and haemorrhage as a result of above-mentioned injuries which were antemortem and homicidal in nature. The injury Nos. 1 and 2 might be caused by a sharp cutting weapon like Tangi, Tabla etc. The injury No. 3 might be caused by a hard and blunt substance like lathi." 27. The doctor has opined that the cause of death was due to shock and hemorrhage as a result of afore-mentioned injuries which were ante-mortem and homicidal in nature. When the doctor was shown tangi (Material exhibit 1) in open court, he opined that the injury No. 1 and 2 might be caused by this type of weapon. He is also very specific in his opinion that these injuries may cause death of any person. He has proved the Post Mortem Report (Ext. 7). In course of his cross-examination by way of elucidation, he clarified that the Injury No. 1 may be caused by attack from frontal side or if the victim lying on the ground. He is also very specific in his opinion that these injuries may cause death of any person. He has proved the Post Mortem Report (Ext. 7). In course of his cross-examination by way of elucidation, he clarified that the Injury No. 1 may be caused by attack from frontal side or if the victim lying on the ground. The Injury No. 2 may be caused from the back side. Both the Injuries i.e, injuries 1 and 2 may be caused by heavy force. If these injuries i.e, nos. 1 and 2 are received by the victim he or she certainly fall on the ground. The Injury No. 3 may be caused by indirect violence. 28. Pausing for a moment it may be pointed out that all the eye-witnesses have stated in one voice that the victim was surrounded on all sides by the accused and consequent upon assault by accused persons the victim fell down on the ground. Even the post occurrence witnesses have also corroborated eye-witnesses and deposed that they found the victim lying on the ground in an injured condition. In fact, the victim died instantaneously. The nature of injuries as mentioned by the doctor both in the PM Report (Ext. 7) as well as in his oral evidence unerringly confirm the manner of assault and type of weapon used by the assailants. Therefore, the medical evidence finds solid support from the ocular evidence of eye-witnesses and post occurrence witnesses. Santosh Kr. Das (PW10) S. I. of police deposes that he received the 29. complaint from Laxmi Mahato and filled up the formal FIR under his signature. He has proved the formal FIR (Ext. 3. According to him, he entrusted the case to S. I. B.B. Sammadar. But his presence could not be secured since he expired during the pendency of trial. However, PW 10 had the CD with him when he was examined and cross-examined. Since he was well-conversant with the hand writing of the I.O. he proved the sketch map (Ext. 4) and also, the seizure list (Ext. 5) which was prepared by the I.O. in connection with seizure of the incriminating weapon 'Tangi'. The I.O. also examined the witnesses and recorded their statements under section 161 Cr.P.C. PW 10 has deposed that as per relevant entries in the CD, S. I. Sri B.B. Sammadar raided the house of accused persons for apprehending them. 5) which was prepared by the I.O. in connection with seizure of the incriminating weapon 'Tangi'. The I.O. also examined the witnesses and recorded their statements under section 161 Cr.P.C. PW 10 has deposed that as per relevant entries in the CD, S. I. Sri B.B. Sammadar raided the house of accused persons for apprehending them. He also collected the Post Mortem Report and the charge-sheet which was written and signed by him. The charge-sheet is proved by PW 10 and the same is marked as Ext. 6. In course of cross- examination several questions were put to this police officer but no contradictions were taken in respect of statements of witnesses recorded at the dictate of B.B. Sammadar, I.O. since deceased. Finding :- After analyzing the gamut of evidence on record critically the following facts 30. emerge:- a) The medical evidence is in absolute conformity with ocular evidence and there is no room for doubting the manner of assault and the weapons used for causing instantaneous death of the unfortunate widow in the presence of her kith and kin as projected by the prosecution through eye-witnesses and post occurrence witnesses. b) The presence of eye-witnesses who happen to be close relations of the victim is quite natural since the distance between the P.O. and the residence of these eye witness is only 40/50 cubits as envisaged in the testimony of PW 2. Since these eye witness reside at audible distance, it is highly probable for them to reach the P.O. in response to cries of the victim raised especially in the very early hours of morning. Therefore, the presence of eye witnesses at the P.O. at the material point of time cannot be doubted. c) Actual incident of assault and annihilation of so-called witch was preceded by another significant and proximate episode wherein the victim was charged by appellants in her home at previous night for applying witchcraft upon the wife of Surrendra one of the appellants since she had been suffering from fever. c) Actual incident of assault and annihilation of so-called witch was preceded by another significant and proximate episode wherein the victim was charged by appellants in her home at previous night for applying witchcraft upon the wife of Surrendra one of the appellants since she had been suffering from fever. d) Even though the presence of Bijoli (PW 4), who was already at the scene of occurrence alongwith her mother in law, the victim, was not indicated in the FIR together with names of relations who rushed to the P.O. in response to a hue and cry, her presence at the P.O. has, however, been proved and clearly proved from the corroborative evidence and circumstances on reocrd. In such a fact situation, her presence was not even challenged by offering a specific suggestion to that effect to her (PW4) during cross-examination. e) The incriminating weapon of offence i.e. Tangi (Material Ext. 1) as produced by appellant Surendra was recovered and seized under a proper seizure list (Ext. 5). f) Indubitably, the incident of assault upon the victim and her instantaneous death was caused in front of the house of Buka Mahato, but there is no iota of evidence to suggest that he was present at the P.O. at the material point of time. g) Appellants Bhandu and Rajen had no arms with them and they did not physically assault the victim. All the appellants, however, surrounded the victim and these two appellants namely Bhandu and Rajen threatened her and her daughter in law with dire consequences and thus encouraged the main assailants to assault the victim with renewed force and vigour in furtherance of their common intention which was formed through the process of calling the victim a witch and accusing her for ailment of Surendra's wife. There is clinching evidence on record to establish that such accusations were levelled by all the appellants against the victim in the previous night at her house. h) Admittedly, B.B. Samaddar, I.O. of this case expired during the pendency of trial. There is clinching evidence on record to establish that such accusations were levelled by all the appellants against the victim in the previous night at her house. h) Admittedly, B.B. Samaddar, I.O. of this case expired during the pendency of trial. However, Santosh Das, S.I. of Police who endorsed the case to B.B. Samaddar, S. I. for investigation at the relevant point of time came alongwith the CD to the witness box to enable the defence to confront the police officer with the contradiction, if any from the statements of witnesses during cross- examination but the defence did not avail of such opportunities in course of cross-examination. 31. Against such factual backdrop, we do not find much substance in the argument of the ld. counsel for the appellants that witnesses who rushed to the P.O. in response to a hue and cry had no opportunity to witness the incident with their own eyes for the simple reason that the incident occurred within the reasonably audible distance of 40/50 cubits from the respective residence of the PWs. Regarding the second facet of Mr. Chatterjee's argument focussing the 32. factum of relationship between the eye-witnesses and the deceased, it can authoritatively be said that relationship of the witnesses with the deceased is no ground to affect their credibility. Rather, relatives would not generally shield the actual culprits and rope in innocent persons. It is quite absurd to suggest that a relation would spare the actual culprits by making serious allegation of murder against the innocent persons. It is, however, settled proposition of law that merely witness happens to be a relative of the victim of crime, he or she can be categorized as an interested witness. So far, the question of creditworthiness of the evidence of relatives of the victim is concerned, it is uniformly held by different judicial pronouncements of the Apex Court that even though the court is to scrutinize such evidence with great care and circumspection, such evidence cannot be discarded on the sole ground of their relationship with the deceased. In this connection reliance can be placed upon the rulings of the Hon'ble Apex Court reported in AIR 2008 SC 2436 [Ashok Kumar Chowdhury vs. State of Bihar], and AIR 2009 SC 152 (State represented by Inspector of Police vs. Saravanam and Anr.]. From the ratio of a plethora of such judicial decisions it can safely be 33. In this connection reliance can be placed upon the rulings of the Hon'ble Apex Court reported in AIR 2008 SC 2436 [Ashok Kumar Chowdhury vs. State of Bihar], and AIR 2009 SC 152 (State represented by Inspector of Police vs. Saravanam and Anr.]. From the ratio of a plethora of such judicial decisions it can safely be 33. concluded that a close relative cannot be considered as an interested witness. On the contrary, he is a natural witness, even though his evidence is to be subjected to a rigorous test of a close scrutiny and if on such meticulous scrutiny his evidence is found to be intrinsically reliable, inherently, probable and wholly trustworthy conviction can be based on corroborative testimony of such witnesses. In fact, the close relationship of a witness with the deceased or victim is no ground to reject his evidence mechanically. As already indicated earlier, close relatives of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. Judging from the above yardstick, the testimony of close relations of the 34. deceased i.e. PWs 1,2,3,4 and 7 can, therefore, be prudently relied upon in the present case. More so, whenever there is nothing on record even in the form of defence suggestion to those close relations to indicate that they or at least any of them bore a long standing animus against any of the appellants. Rather, appellants became inimical to the victim since they suspected that she had a magic power of causing evil effects upon the wife of one of the appellants since she suffered from fever. Therefore, we are unable to accept Mr. Chatterjee's argument as that appellants have falsely been implicated in this case out of witnesses' animosity against the appellants or because of their relationship with the deceased. 35. We have also paid anxious consideration to Mr. Chatterjee's further argument that non-examination of Buka Mahato, is fatal for the prosecution and the ld. trial court ought to have drawn an adverse presumption under section 114(g) of the Evidence Act since examination of such a material witness namely Buka Mahato, has been withheld by the prosecution. We do not find much substance in such argument. Chatterjee's further argument that non-examination of Buka Mahato, is fatal for the prosecution and the ld. trial court ought to have drawn an adverse presumption under section 114(g) of the Evidence Act since examination of such a material witness namely Buka Mahato, has been withheld by the prosecution. We do not find much substance in such argument. In our considered view, whether an adverse inference ought or ought not to be drawn will depend upon the facts and circumstances of each case, since there is no compulsive element in the provision to draw an adverse inference against a party whenever or wherever it fails to produce available documents / evidence. 36. In the present case as already pointed out in preceding paragraphs, there is no iota of evidence on record to indicate that Buka Mahato was present at the time of assault on the victim. The very fact that the incident occurred in front of his house does not necessarily mean that Buka Mahato was an eye witness to the occurrence. It is also not known to us as to whether he was even present in his house. That apart, since the incident of witch killing is horrendous in nature, the possibility of Buka Mahato remaining in his house out of fear may not be ruled out. 37. In such view of the matter, we are of the definite opinion that the presumption under section 114(g) of Evidence Act is not obligatory for the simple reason that there may be such circumstances as indicated hereinbefore or such other circumstances of similar nature wherefrom it would be available that such evidence as asked for was, in fact, not in existence. It is, therefore, reiterated that a presumption u/s 114 (g) of Evidence Act is a question of fact and not a question of law. The section provides for the presumption by the court regarding existence of facts. Illustration (g) is merely an illustration of the principle embodied in the section. In our considered view, it is open to court to draw an adverse inference against the recalcitrant party who wrongfully withholds evidence in his possession. In other words, an adverse presumption can be drawn only in case of refusal to let the best evidence from being brought before the court. In our considered view, it is open to court to draw an adverse inference against the recalcitrant party who wrongfully withholds evidence in his possession. In other words, an adverse presumption can be drawn only in case of refusal to let the best evidence from being brought before the court. But in the case in hand the evidence and circumstances on record clearly suggest that Buka Mahato is not an eye witnesses even through the incident of assault and murder took place in front of his house. Therefore, by no stretch of imagination it can be said that the prosecution has withheld the best evidence from judicial scrutiny. Mr. Chatterjee's argument appears to be fallacious on that score. 38. True, the name of Bijoli Mahato, PW 4 does not figure in the FIR as an eye witness even though some of the eye-witnesses are named therein. A close look to the formal FIR (Ext. 3) reveals that the FIR was lodged with utmost promptitude i.e. within 2 hrs. and 45 minutes by PW 1 in whose presence his mother was mercilessly butchered. Therefore, since he was mentally perturbed there may be a bona fide omission on his part in not mentioning the name of Bijoli who was at the P.O. prior to their arrival there. In such circumstances, it cannot be said that because of non-mentioning of her name as an eye witness in the FIR her testimony should be viewed with serious suspension. In fact, such minor omission in the FIR does not affect the probabilities of the case and are not relevant u/s 11 of the Evidence Act in judging veracity of the prosecution case. However, omission of important facts in the FIR comes within the purview of the said section of the Indian Evidence Act. That apart, there is no hard and fast rule that names of all the eye witnesses are to be incorporated in the FIR. Furthermore, FIR, is not substantive evidence against the accused and it can be used to corroborate or contradict FIR maker. Therefore, Mr. Chatterjee's submission in this regard does not appear to be a meritorious one. 39. Now, the most importantly important question is whether the crime of appellants would come under the purview of section 302 IPC. In a case of murder the offender has a positive intention and knowledge. Therefore, Mr. Chatterjee's submission in this regard does not appear to be a meritorious one. 39. Now, the most importantly important question is whether the crime of appellants would come under the purview of section 302 IPC. In a case of murder the offender has a positive intention and knowledge. In the case in hand at least three appellants assaulted the victim with the intention of causing death or with a definite knowledge that bodily injuries inflicted by them would cause death. Motive prompts a man to form an intention. Knowledge and intention in many cases merged into each other and intention can be presumed from knowledge. Therefore, intention to cause injuries which would be sufficient in the ordinary course of nature to cause death is enough to bring the appellants within the ambit of section 302 IPC. Here such intention to cause death is clear from the nature of injuries inflicted upon the victim with deadly weapons like Tangi, Tabla and Lathi as well as other legal evidence and surrounding circumstances on record. As already discussed earlier, such a dastardly assault upon the deceased in the early hours of the morning was a follow up action in a resolute manner by the appellants who called her a witch at her residence at mid night and held her responsible for ailment of appellant Surendra's wife. Therefore, there was a clear meeting of minds of all the appellants and their motive to kill the so-called witch, who produced evil effects upon the villagers by exercise of her magic power, is quite obvious from the materials and circumstances on record. We, therefore, feel convinced to hold that the heinous crime perpetrated by the appellants undoubtedly comes within the ambit of section 302 IPC. 40. Evidence on record clearly indicates that the appellants (i) Bhandu Gorain and (ii) Rajen Gorain did not play any active role in assaulting the victim. But the fact remains that they were not mere on-lookers in an unarmed manner. There is cogent and consistent evidence on record to establish that all the five appellants surrounded the victim on all sides and all of them had common intention to cause death of the victim. But the fact remains that they were not mere on-lookers in an unarmed manner. There is cogent and consistent evidence on record to establish that all the five appellants surrounded the victim on all sides and all of them had common intention to cause death of the victim. In this context, it has to be borne in mind that if a common intention is proved but no overt act is attributed to the individual appellant, section 34 will be attracted as it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, section 34 cannot be invoked. However, in every case it is not possible to have direct evidence of a common intention and it has to be inferred from the facts and circumstances of the each case. Therefore, ultimate decision depends upon inferences deducible on circumstances of each case. In the instant case the prosecution has successfully shown that the annihilation of the so-called witch was done in furtherance of common intention of all the appellants including Surrendra Gorain upon whose wife the victim allegedly played her witchcraft. The existence of common intention can easily be inferred from attending circumstances of the case and conduct of the parties so available from the incident of previous night when accused persons had been to the house of the victim and called her a witch and expressed their resentment in unequivocal term for illness of the wife of one of the appellants namely Surrendra. The early morning incident of gruesome assault leading to the death of the victim is, undoubtedly, a premeditated action by the appellants and is sequel to the event of previous night as already indicated earlier. It is an admitted position that common intention is a state of mind of the perpetrator of a crime which may be inferred objectively from its conduct displayed in course of commission of the crime as also prior and subsequent attendant circumstances. In the case in hand it is needless to mention that intention of all the appellants in perpetrating a diabolical murder of the deceased was formed beforehand and pursuant to such common intention all the appellants appeared in the scene of crime with a determined bid to annihilate the so-called witch. 41. In the case in hand it is needless to mention that intention of all the appellants in perpetrating a diabolical murder of the deceased was formed beforehand and pursuant to such common intention all the appellants appeared in the scene of crime with a determined bid to annihilate the so-called witch. 41. In the ultimate analysis of entire materials and circumstances on record and weighing them in the scale of probabilities we cannot but hold that the section 34 IPC is well attracted in the present case and the prosecution has fairly succeeded in establishing that the aid of section 34 IPC should be invoked in this case under section 302 IPC. 42. On the question of non-examination of the I.O. it is argued by Mr. Chatterjee that since statements of witnesses were not recorded by the I.O. himself, the investigation of the case is faulty. Furthermore, non-examination of the I.O. has seriously affected the prosecution case for the simple reason that the appellants could not take contradictions in respect of statements of witnesses recorded by the I.O. earlier during investigation. 43. We have very carefully taken into consideration this facet of Mr. Chatterjee's argument with reference to factual and legal position as envisaged in this case. There is no doubt that as a part of fair trial the I.O. should be examined during trial especially in a Sessions trial. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under section 161 Cr. P.C. or if there is an omission of certain material particulars the previous statements of these witnesses can be proved only by examining the I.O. who must have recorded the statements of these witnesses under section 161 Cr. P.C. But in our considered view non- examination of the I.O. in all cases does not render the prosecution case vulnerable. In the present case the defence was afforded a reasonable opportunity to obtain contradictions, if any in respect of earlier statements of witnesses from the PW10 who being equipped with the relevant CD faced the cross- examination in place of the I.O. since deceased. But the defence did not avail of such opportunities for the reasons best known to it. It is not the case, that the prosecution deliberately withheld the examination of the I.O. Rather the I.O. could not be examined since he left the world of living. But the defence did not avail of such opportunities for the reasons best known to it. It is not the case, that the prosecution deliberately withheld the examination of the I.O. Rather the I.O. could not be examined since he left the world of living. It is a settled position of law that it is only when prejudice is shown, non examination of I.O. assumes importance. A criminal trial would not fail merely because the I.O. could not be examined. A case of prejudice is to be established by the accused. If no contradiction is pointed out in the statement of witnesses in the light of statement given to the I.O. then non examination of I.O. is of no consequence . In this context it has to be borne in mind that it is not obligatory on the part of the I.O. to record the statements of witnesses. Statement made by the witness to the police officer during investigation may be reduced to writing if such necessity is felt by him even though such discretion of the I.O. is not unfettered. Such being the legal position, the recording of statements of witnesses at the dictate of I.O. cannot be faulted with and for this reason alone the police investigation cannot be held to be defective. More so, whenever statement made under section 161 Cr. P.C. may also be recorded by audio-video electronic means [ as per proviso inserted to section 161 Cr. P.C. by Cr. P.C. (Amendment) Act, 2008 (5 of 2009), section 12]. At any rate, if no contradiction is pointed out in the statement of witnesses in the light of the statement given to the I.O., non examination of the I.O. is of no effect. 44. In this context reliance can be placed upon two rulings of the Apex Court reported in i) 2000 Cri. LJ. 2466 (S.C.) Bahadur Naik, Appellant vs. State of Bihar, Respondent and ii) Zahira Habibulla's Case reported in 2004 Cri. LJ. 2050 (S.C.). In the case reported in 2000 Cri. LJ. 2466 (S.C.) [Bahadur Naik, Appellant vs. State of Bihar](supra) it is held that when the appellant has failed to shake the credibility of eye-witnesses or to point out any material contradiction in prosecution, the non-examination of the I.O. as a witness is of no consequence. LJ. 2050 (S.C.). In the case reported in 2000 Cri. LJ. 2466 (S.C.) [Bahadur Naik, Appellant vs. State of Bihar](supra) it is held that when the appellant has failed to shake the credibility of eye-witnesses or to point out any material contradiction in prosecution, the non-examination of the I.O. as a witness is of no consequence. As already held earlier in foregoing paragraphs since the appellants have not been able to shake the creditworthiness of eye-witnesses examined by the prosecution and also to highlight any material contradiction in the prosecution case, non examination of I.O. since deceased has not assumed any significance. Furthermore, it has also not been specifically shown what prejudice has been caused to the appellant by such non examination of the I.O. It is, however, made clear in Zahira's case that it is not obligatory on the part of the I.O. to reduce statements of witnesses in writing. However, if such necessity is felt by the I.O. he can do so. It is also not a requirement in law that the statement u/s. 161 Cr. P.C. has to be recorded in the language known to the person giving the statement. Therefore, there is nothing wrong if the statements of witnesses are recorded at the dictate of the I.O. who also signed the same after such recording. The main crux of section 161 Cr. P.C. is, therefore, the truthful disclosure by the person who is examined. 45.Fortified with those rulings we are emboldened to observe that since it has not been shown to us what prejudices have actually been caused to the appellant by such non examination of the I.O. in view of his death during pendency of the trial, the prosecution case need not be brushed aside on that score alone. More so, whenever credibility of eye witnesses remains unshaken and no major contradictions have also been shown in respect of their previous statement before the I.O. 46. On proper appreciation and evaluation of evidence and circumstances on record we are of the considered view that the prosecution has proved and clearly proved the case with legally cogent, consistent and convincing evidence and the charge punishable under section 302/34 IPC has been well established against all the appellants beyond all reasonable doubts. Conclusion : 47. On proper appreciation and evaluation of evidence and circumstances on record we are of the considered view that the prosecution has proved and clearly proved the case with legally cogent, consistent and convincing evidence and the charge punishable under section 302/34 IPC has been well established against all the appellants beyond all reasonable doubts. Conclusion : 47. Before parting, with we would like to put on record a note of caution on the devastating effect of such meaningless atrocities and senseless killing of innocent aged and infirm widows in the name of witch. It would simply haunt such helpless aged women like a nightmare eroding their mental peace unless preliminaries of basic science are imbibed in the old and young minds alike of the affected regions by dispelling ingrained dogmatism and orthodoxy therefrom in order to ensure avoidance of such catastrophe in future years. Decision 48. Viewed in the light of foregoing discussion we do not find sufficient ground for interfering with the impugned order of conviction and sentence passed against the present appellants by the ld. Sessions Judge, Purulia in S.T. No. 5 of 1998. Accordingly, the conviction and sentence recorded by the ld. Trial Judge stands affirmed. In the result, the present appeal stands dismissed as having no merit. Direction 49. Since all the appellants are on bail, they are directed to surrender before the ld. Sessions Judge, Purulia within two weeks from the date of communication of this order to serve out the sentence in default whereof ld. Sessions Judge, Purulia is to take appropriate steps against the convict appellants in accordance with law as expeditiously as possible. 50. Send a copy of this order to the ld. Sessions Judge, Purulia for necessary compliance forthwith. Photostat certified copy of this order, if applied for, be supplied on priority basis.