Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 724 (GAU)

Mangal Debbarma v. State of Tripura

2011-08-30

A.C.UPADHYAY, BIPLAB KUMAR SHARMA

body2011
JUDGMENT A.C. Upadhyay, J. 1. The Appellant above named was put on trial before the learned Sessions Judge, North Tripura, Kailashahar, in case No. ST.82(NT/K)04, wherein he was convicted under Section 364(A)/302 IPC read with Section 34 IPC and sentenced to suffer imprisonment for life, and to pay fine of 1,000/-, and in default of payment of fine, he was directed to suffer rigorous imprisonment for one year. 2. We have heard Mr. Somik Deb, learned Counsel for the Appellant, and Mr. D. Sarkar, learned Public Prosecutor, Tripura with Mr. R.C. Debnath, learned Spl. Public Prosecutor, Tripura appearing on behalf of the State. 3. Sans unnecessary details, the facts, leading to the filing of this appeal, may be stated in brief, as follows: On 07.02.2000, at about 07.50 p.m. in the evening, accused-Appellant, Mangal Debbarma along with seven others, armed with guns, came to Dolugaon market and opened indiscriminate firing with their guns on the people gathered in market and abducted three persons, namely Debasish Deb, Samarjit Singha and Sunil Das, at gunpoint. As a result of indiscriminate firing by the extremists, three persons, namely Sital Kar, Babu Singh and Dhirendra Suklabaidya succumbed to gun shot injuries sustained by them. In the incident, 3/4 other persons also received gunshot injuries. 4. On the same day at about 08.35 p.m., the Officer In-Charge, Kailashahar P.S. received information from the R.G.M. Hospital, Kailashahar that two injured persons were brought in the hospital, following incident of attack by the extremists at Dolugaon market. The Officer In-charge, Kailashahar P.S. accordingly entrusted Sri Kamalendu Bhowmik, PW.21, Sub-Inspector of Police of Kailashahar P.S to investigate. PW.21 found the dead bodies of Sital Kar, Babu Singh on the road of that market. One Sri Ratan Ch. Deb, PW.6, who knew about the incident, lodged an oral FIR before PW.21 by narrating the incident of attack by the extremists. PW.21 recorded the statement of Ratan Ch. Deb PW.6 and obtained his signature thereon. 5. On receipt of the FIR, a case was registered under Sections 148, 149, 302, 326, 364(A) IPC and under Section 27 of the Arms Act and accordingly investigation was launched. 6. On completion of the investigation, the investigating police officer submitted charge sheet against 8(eight) accused persons. Out of those 8(eight) charge sheeted accused persons, the case was dropped as against three of them due to their death in the meanwhile. 6. On completion of the investigation, the investigating police officer submitted charge sheet against 8(eight) accused persons. Out of those 8(eight) charge sheeted accused persons, the case was dropped as against three of them due to their death in the meanwhile. In respect of 4(four) others the case was adjourned sine-die by the committal court for failing to secure their presence, due to their abscondence. However, the case as against accused-Appellant, Sri Mangal Debbarma, was committed to the Court of learned Sessions Judge, North Tripura, Kailashahar by the learned Judicial Magistrate, 1st Class, Kailashahar for trial. 7. During trial, learned Sessions Judge, North Tripura, Kailashahar, finding sufficient materials against the accused Appellant under Sections 364(A)/302, read with 34 IPC, framed formal charges against the accused-Appellant. 8. On reading over and explaining the charges, the accused-Appellant pleaded not guilty and claimed to be tried. 9. The prosecution adduced as many as 21(twenty one) prosecution witnesses to prove the case. On closing of the prosecution witnesses, the statement of the accused-Appellant, was recorded as per provisions of Section 313 Code of Criminal Procedure In his statement under Section 313Code of Criminal Procedure, the accused-Appellant pleaded total denial. 10. On conclusion of the trial the learned Session Judge, Kailashahar, North Tripura convicted the accused-Appellant under Sections 364(A)/302, read with Section 34 IPC, and sentenced him as aforesaid, giving rise to this appeal. 11. Mr. Somik Deb, learned Counsel for the accused Appellant has submitted that although 21(twenty one) prosecution witnesses were examined by the prosecution, none of the witnesses could recognize the accused-Appellant as the accused, who had committed the offence alleged. Learned Counsel also submitted that the fact of payment of the ransom by the father of the victim was not proved, since the father himself, who was examined as a witness, never ever stated before the Court that he had paid ransom to the extremists. Learned Counsel for the accused-Appellant further pointed out that the prosecution witnesses could not identify the accused-Appellant, as one of the extremists, who indiscriminately opened firing on the local people in the market, as alleged by the prosecution. It has also been contended that the extortion letters, which were written by the extremists to the father of the victims, were never proved in the court by the prosecution. 12. It has also been contended that the extortion letters, which were written by the extremists to the father of the victims, were never proved in the court by the prosecution. 12. Learned Counsel for the accused-Appellant relied on the decisions reported in 2007 5 SCC 634 : Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan (para 54), 2007 11 SCC 633 : Vishwanath Gupta v. State of Uttaranchal (para 9), 2011 Cri.L.J. 705: Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra 2002 CRI. L.J. 4076: Tarun Bora @ Alok Hazarika v. State of Assam 2000 8 SCC 382 : State of West Bengal v. Mir Mohammad Omar & Ors (para 31) in support of his contention. 13. In reply to the above contention, Mr. D. Sarkar, learned P.P. representing the State, has submitted that the prosecution has been able to establish the offence alleged against the accused-Appellant beyond all reasonable doubts, and there is no scope to interfere with the decision of the learned Sessions Judge, North Tripura, Kailashahar. 14. In order to appreciate the arguments advanced by the learned Counsel for the parties, it would be apposite to extract herein the core of the prosecution evidences. 15. Upon scanning through the evidence of PW.1, Bhuban Ch. Bhowmik, PW.2, Nripendra Suklabaidya, PW.3, Tapan Kr. Dey, PW.4, Mani Lal Sinha, PW.5, Sridam Malakar, and PW.9, Indresear Singha and PW.13, Sajal Suklabaidya, it appears that the witnesses corroborated the statements of each other in material particulars to establish that on 07.02.2000 in the evening around 08.00 p.m., some extremists attacked the people in the Dalugaon market. According to the evidences of the witnesses' aforenoted, the extremists indiscriminately opened gun fire on the innocent people in the market place. As a result of that indiscriminate firing, three persons including Babu Singh and Sital Kar died on the spot and some other persons received gunshot injuries on their person. The witnesses also confirmed that the extremists after the brutal attack abducted three persons from the market place before leaving the place of occurrence. However, none of the witnesses afore-noted could recognize any of the extremists at the time of committing offence in the market. 16. PW.6, Ratan Ch. Deb, who is the first informant, narrated the incident to the police. On the oral statement of PW.6, an FIR was prepared by the police. 17. However, none of the witnesses afore-noted could recognize any of the extremists at the time of committing offence in the market. 16. PW.6, Ratan Ch. Deb, who is the first informant, narrated the incident to the police. On the oral statement of PW.6, an FIR was prepared by the police. 17. PW.7, Mantu Singh and PW.8, Rabi Deb, corroborated the facts stated by other witnesses' aforenoted, regarding the attack by the extremists in Dalugaon market by resorting to indiscriminate firing. PWs.7 and 8 also proved their signatures in the inquest reports of deceased, namely, Babu Singha and Sital Kar, prepared by the police. 18. PW.11, Samarjit Sinha in his deposition, corroborating the testimony of other witnesses stated that the extremists also kidnapped him together with other two, namely, Debasish Deb (PW.17) and Sunil Das (PW.18). However, when he (PW.11) fainted and became unconscious, the extremists left him near place called Ganganagar. 19. PW.12, Ranjit Sabdakar, also corroborated the statements made by the other witnesses and deposed that he received bullet injuries on his right hand and right leg due to extremist attack and fell down on the ground and became unconscious. 20. PW.13, Sajal Suklabaidya confirmed in his statement that his uncle, namely Hirendra Suklabaidya was killed on the spot by the extremists. 21. PW.14, Smt. Parulbala Kar, who is also an eye witness to the occurrence stated that on the date of occurrence, when she was in her grocery shop at Dalugaon market at about 08.00 p.m., some extremists attacked Dalugaon market and forcibly tried to kidnap his son from their shop. However, when she resisted them, the extremists assaulted her with the cash box, and as a result, she received injuries on the left side of her face. According to PW.14, the extremists opened firing in the market, and as a result of which, some 3 to 4 persons sustained bullet injuries on their body. PW.14 also stated that she was immediately taken to the RGM Hospital, Kailashahar, for her treatment of the injuries sustained by her in the incident. 22. PW.16, Tarun Sinha is another witness, who received gun shot injuries on his person. PW.16 also corroborated the statements of the other witnesses, regarding the attack made by the extremists. PW.14 also stated that she was immediately taken to the RGM Hospital, Kailashahar, for her treatment of the injuries sustained by her in the incident. 22. PW.16, Tarun Sinha is another witness, who received gun shot injuries on his person. PW.16 also corroborated the statements of the other witnesses, regarding the attack made by the extremists. He stated that immediately on receiving gun shot injuries on his person, he became unconscious and immediately he was taken to the RGM Hospital, Kailashahar for medical treatment. However, PW.16 categorically stated that he could not recognize any of the extremists at the time of the occurrence. 23. The prosecution also examined Dr. Rupamay Waddadar, PW.19, who conducted autopsy on the dead body of deceased Dhirendra Suklabaiya, in the morgue of R.G.M. Hospital, Kailashahar. In the postmortem examination on the dead body of Dhirendra Suklabaiya, PW.19 found the following injuries: (i) Entry wound of bullet measuring 3" in diameter at the anterior right side of the chest. (ii) Exit wound of bullet measuring 71/2" in diameter at the left lateral side of the left chest. PW.19 also opined that the cause of death of the deceased was due to heamorrhagic shock following bullet injury. 24. PW.20, Dr. Sashankar Deb conducted autopsy on the dead body of Babu Singh in the morgue of R.G.M. Hospital and found the following injuries on the dead body: (i) Entry wound of bullet measuring 2" in diameter on the left shoulder. (ii) Exit wound of bullet measuring 6" in diameter on the right lateral side and middle part of the chest. (iii) Compound fracture of upper one third of left humorous. (iv) Dislocation of left shoulder joint. PW.20 also opined that death of deceased Babu Singh, was due to heamorrhagic shock following the bullet injury sustained on chest. PW.20 also conducted autopsy over the dead body of deceased Sital Kar and found the following injuries: (i) Entry wound of bullet measuring 3" in diameter on the lower part of the right side of the chest. (ii) Exit wound of bullet measuring 7" in diameter on the left lateral part of abdomen. He also opined that the death of the deceased Sital Kar was due to heamorrhagic shock following bullet injury on the chest and abdomen. 25. (ii) Exit wound of bullet measuring 7" in diameter on the left lateral part of abdomen. He also opined that the death of the deceased Sital Kar was due to heamorrhagic shock following bullet injury on the chest and abdomen. 25. According to PW.21, Sri Kamalendu Bhowmik, investigating officer, he reached the place of occurrence at about 09.30 p.m. and prepared the inquest report of all the dead bodies at the place of occurrence. PW.21 also proved the inquest report of the dead bodies. PW.21 narrated as to how he had carried the investigation of the case. 26. On careful appraisal of the evidences aforesaid it is apparent that due to indiscriminate firing by the extremists, three persons, namely, Dhirendra Suklabaidya, Babu Singh and Sital Kar died on the spot in the market. It is also evident from the evidences of PW.10, PW.12, PW.14 and PW.16 that they received bullet injuries on their persons in the shoot out by the extremists. The incident of extremist violence as well as death and injuries of the innocent victims in the market is not denied by the defence during cross-examination of the witnesses. From the evidence of PW.19 and 20, it clearly transpires that three persons had died due to gun shot injuries sustained by them. Therefore, it is clearly evident that deceased Dhirendra Suklabaidya, Babu Singh and Sital Kar were intentionally murdered by the extremists, on the day of the incident on 07.02.2000, at about 07.30 p.m. to 08.00 p.m. at Dalugaon market by firing of gun shot. It is also in the evidence of the prosecution witnesses that the extremists, after the shoot out in the market, abducted three persons with them, while leaving the place of the occurrence. Out of these three abducted persons, PW.17 and PW.18 were taken by the extremists to their camp in the jungle. However, PW.11, Samarjit Singha, who was taken away by the extremists, became unconscious, near a place called Ganganagar, and, accordingly, the extremists left him there. PW.11 also could not recognize any of the extremists during his brief experience of abduction by the extremists. 27. PW.17, Debasish Deb, who was abducted by the extremists from the market after the indent stated in his deposition that on 07.02.2000 at about 07.30 p.m., he was in the cloth shop of his father at Dalugaon market. PW.11 also could not recognize any of the extremists during his brief experience of abduction by the extremists. 27. PW.17, Debasish Deb, who was abducted by the extremists from the market after the indent stated in his deposition that on 07.02.2000 at about 07.30 p.m., he was in the cloth shop of his father at Dalugaon market. In the meanwhile, four persons, armed with fire arms, abducted him at gun point along with Samarjit Singha, (PW.11), Sunil Das, (PW.18) from the market. 28. Though the miscreants took them towards south from the market, on their way, the abductors released Samarjit Singha, PW.11, but the miscreants took him and PW.18 towards the deep jungle and detained them in a 'tong' hut in the jungle. After about two months from the date of their abduction, PW.18, Sunil Das was released. Thereafter, about 74 days from the date of abduction, PW.17 was released by the miscreants. On his return home, he came to know from his father that his father had made payment of Rs.7,00,000/- (rupees seven lakhs) to those miscreants as ransom for his release. PW.17 also stated in his deposition that at the time of release of Sunil Das, PW.18, extremists told him that they got the ransom demanded from the relatives of Sunil Das. PW.17 further stated that at the time of his release, the miscreants told him that they got the amount of ransom from his father, and as such, he was being released by the miscreants. 29. It is in the evidence of PW.17 that after his release from the captivity of the abductors, PW.17 met PW.18, who told him that the brother of PW.18 had paid Rs. 2,00,000/- (rupees two lakhs) to the abductors as ransom. PW.17 categorically stated in his deposition that out of those miscreants, he could recognize Dasaram Debbarma, Peku Debbarma, Dilip Debbarma and Mangal Debbarma (the accused-Appellant herein). PW.17 also stated that he came to know the names of those four miscreants, while they were talking with each other in front of him. 30. However, it is quite natural that when PW.17 was under the captivity of the extremists for more than two months, he would obviously be able to recognize his abductors by face and also by names. There is no doubt on the question of identity of the abduct Ors. 31. 30. However, it is quite natural that when PW.17 was under the captivity of the extremists for more than two months, he would obviously be able to recognize his abductors by face and also by names. There is no doubt on the question of identity of the abduct Ors. 31. PW.17 also specifically identified accused-Appellant, Mangal Debbarma in the dock by name and by face. PW.17 also confirmed that on the dictation of his abductors, both he and PW.18 had to write letters to their respective houses, asking for ransom for their release. After having been released by the abductors he came to know from the local people that on the date of the incident, Sital Kar and two other persons were murdered in Dalugaon market by the abductors, which implies that PW.17 did not witness the killing of the people in the market by the extremists. On his return from captivity of the abductors, PW.17 was informed by his father that he might be killed at any time by the extremists, if he disclosed the fact of making payment of Rs.7,00,000/- (rupees seven lakhs) to any other person. Such fear of being killed by the extremist for disclosing the payment is not uncommon. 32. According to PW.17, he did not disclose the aforesaid fact to the police officer due to fear. The view expressed by PW.17, cannot be ignored in the facts and circumstances of the present case. In his cross-examination, he stated that he did not state before the police that he saw the accused-Appellant, Mangal Debbarma and three others. He disclosed the name of the accused-Appellant and three others after his release from the captivity. PW.17 denied the suggestion that he did not recognize the accused-Appellant, Mangal Debbarma as one of the abduct Ors. 33. PW.18, Sunil Das in his deposition stated that on the date of occurrence at about 07.45 p.m. he was in his grocery shop. Suddenly, PW.18 heard sound of firing in the market and saw people in the market were running away. At that time when PW.18 came out from his shop, he was forcibly abducted by the extremists from the market along with Debasish Deb, PW.17 and Samarjit Singha (PW.11). Suddenly, PW.18 heard sound of firing in the market and saw people in the market were running away. At that time when PW.18 came out from his shop, he was forcibly abducted by the extremists from the market along with Debasish Deb, PW.17 and Samarjit Singha (PW.11). On their way to jungle, PW.11 was released by the extremists, but the extremists took him and PW.17 towards the deep jungle and thereafter they were detained in different places in tong huts. PW.18 categorically stated that among the abductors, he could recognize the accused-Appellant, Mangal Debbarma, Peku Debbarma and Dilip Debbarma. PW.18 confirmed that he could recognize the names of the abductors, while they were talking with each others in front of him. 34. PW.18 came to know from the accused-Appellant, Mangal Debbarma after about two months from the date of his abduction that accused-Appellant had received the amount of ransom from his family members, and accordingly, he was released from the captivity of the extremists. On his return home he learnt from his brother that an amount of Rs.2,50,000/- (rupees two lakhs and fifty thousand) was paid to the abductors as ransom for his release. He also came to know on his return home that three persons were killed in the market and several others were injured on the day of the incident on account of extremist shoot out. PW.18 categorically stated in his deposition that at the time of his abduction, the accused-Appellant and three others opened firing towards the people in market from their respective guns. 35. Though a few questions were put to the witnesses to prove the contradictions in their statements made before the police during investigation, however, such questions were not confirmed and proved by putting such questions to the investigating officer, who recorded such statements of the witnesses. Therefore, the contradictions, sought to be established on behalf of the accused-Appellant, cannot be relied on. 36. On careful scrutiny of the evidence of P Ws.17 and 18, it clearly transpires that these two witnesses are reliable and trustworthy witnesses, who were in the captivity of the extremists for a long period of time. Apart from recognizing the accused Appellant by his face and name, the witnesses also confirmed his participation in keeping them in captivity for such a long period of time. Apart from recognizing the accused Appellant by his face and name, the witnesses also confirmed his participation in keeping them in captivity for such a long period of time. PW.18, who was the victim of extremists attack and extremist violence, categorically stated that the accused-Appellant was one of the extremists, who had abducted them from the market place after the firing incident. More so, when the accused Appellant, Mangal Debbarma moved along with them and continued to stay as their abductor, obviously, there would not be any aberration in their testimony to identify the accused Appellant. No oblique intention can be attributed in the testimony of PW.17 and 18. 37. From the evidence of P Ws.17 and 18 together with the evidence of other prosecution witnesses, it clearly transpires that the accused-Appellant along with his associates killed the victims in the market and abducted P Ws.17 and 18 and kept them under their confinement for a very long period of time. 38. The accused-Appellant together with his associates threatened to cause of death or hurt to the victims and compelled their guardians to pay ransom for their release. Therefore, the ingredients of offence under Section 364(A) have clearly been made out against the accused-Appellant. Very unfortunately, the accused-Appellant together with his associates, before abducting P Ws.17 and 18, massacred the market place at Dalugaon by indiscriminate firing by guns, which caused death of innocent persons and injuries to a few others. The accused-Appellant, together with his associates, in furtherance of common intention, caused death of three innocent persons and such death was caused due to firing gun shots and the act committed by the accused-Appellant with the intention of causing death, knowing fully well that his act would cause death of the victims. By firing gun shot, the accused-Appellant brutally killed three persons in the market. 39. Learned Counsel for the accused-Appellant by relying on the decision, reported in 2011 Cri.L.J. 705: Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra submitted that P Ws.17 and 18 admittedly omitted to state before the investigating police officer, a very vital and important fact of having seen the accused-Appellant, shooting or firing from his gun to the victims in the market. 14. Material Contradictions: While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. 14. Material Contradictions: While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152 ). 15. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106 ). 16. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 ). 17. In case, the complainant in the FIR or the witness in his statement under Section 161 Code of Criminal Procedure ., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440 ). 18. In State of Rajasthan v. Smt. Kalki & amp; Anr., AIR 1981 SC 1390 , while dealing with this issue, this Court observed as under: & quot; In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person & quot; 19. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (see: Syed Ibrahim v. State of A.P., AIR 2006 SC 2908 ; and Arumugam v. State, AIR 2009 SC 331 ). 20. In Bihari Nath Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186 , this Court examined the issue and held: & quot; Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." 21. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. 40. The evidence of the witnesses of the prosecution, more particularly, P Ws.17 and 18, who were also the victims of the occurrence, admitted their omission to state before the police during investigation regarding firing of gun shots by the accused Appellant. Admitted omissions in the statements of the witnesses, will not permit the court to rely on such admitted omissions without valid reason for ignoring to state the truth. The decision relied on by the learned Counsel for the accused Appellant in Dr. Sunil Kumar Sambhudayal Gupta(supra), shall making it imperative on us to find out whether the accused was seen participating in the killing spree launched by the extremists? Evidence of PW.17 and PW.18 discloses that they found the accused-Appellant as their abductors. No. doubt accused-Appellant was one of the abductors, who continuously kept the victims confined in the jungle. Sunil Kumar Sambhudayal Gupta(supra), shall making it imperative on us to find out whether the accused was seen participating in the killing spree launched by the extremists? Evidence of PW.17 and PW.18 discloses that they found the accused-Appellant as their abductors. No. doubt accused-Appellant was one of the abductors, who continuously kept the victims confined in the jungle. PW.17 and PW.18 also ascertained with certainty that accused-Appellant was one of the extremists, who took them to the jungle from the place of abduction. Evidence of the eye witnesses established beyond doubt that the extremists group of first resorted to killing and shooting of innocent people in the market and thereafter abducted PW.17 and PW.18. 41. Now question arises, as to whether the accused can be implicated for the commission of offence by applying the principle of joint liability as envisaged under Section 34 of IPC. There is no evidence on record to establish the participation of the accused-Appellant in the killing spree by the extremists. None of the eyewitnesses to the occurrence stated to have seen the accused in the place of occurrence. However, Section 34 of IPC postulates that if a criminal act is done by several persons, in furtherance of common intention of all then in such event each of such person be liable for the act. This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of common intention 42. Learned Counsel for the accused-Appellant also relied on the decision reported in (2000) 8 SCC 382 : State of West Bengal v. Mir Mohammad Omar and Ors. wherein the Hon'ble Supreme Court has held that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 43. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 43. Now, the question, which arises for consideration of the Court is whether the accused-Appellant, who was not seen by any of the witnesses, firing gun shot in the market, when the killing of innocent victims was let loose by the extremist, can be convicted of offence under Section 302 IPC. 44. The accused-Appellant was admittedly one of the abductors, who kept P Ws.17 and 18 in confinement until the demand of ransom was met by the relatives of the victims. Apparently, none of the witnesses saw accused-Appellant killing the victims in the market. The circumstantial evidence, against the accused-Appellant spell out the following facts for consideration of the Court: (i) The accused-Appellant was on the abductors found by PW.17 and PW.18, who were abducted by the extremist from Dalugaon market. (ii) On the date of occurrence, at the relevant time, before abduction of the victims, PW.17 and PW.18, from the Dalugaon market, a large group of extremists indiscriminately shot at the people in the market. (iii) From the evidence of PW.17, it appears that PW.17 was abducted by the extremist from his shop together with PW.18 and another PW.11. He came to know about the killing by the extremists on the date of abduction, after his release by the abductors after two months. Therefore, apparently, it could not be ascertained with certainty from the testimony of PW.17 that he heard gunshot firing before his abduction by the extremists. 45. If we analyze the evidence of P Ws.17 and 18 carefully, we find that accused-Appellant with other extremists, named by the witnesses, were found by them in the jungle, who kept both PW.17 and PW.18, continued for more than 70 days at different locations in the jungle. There is no sufficient evidence to hold that accused-Appellant was on of the members of the extremists group, who had abducted the victims from Dalugaon market. There is no sufficient evidence to hold that accused-Appellant was on of the members of the extremists group, who had abducted the victims from Dalugaon market. No doubt, the Appellant was privy to due offencing of abducting the victims and confirming them, but the circumstantial evidence abducted by the prosecution to lead to the inference that the Appellant was one of the members in the group of extremist, who killed the victims in the market. 46. The incident of killing people in the market and the episode of abduction of PW.17 and PW.18 and continuing the abduction of the victims in the jungle cannot be interpreted to be separate incident. In order to carry out the abduction, the extremists killed innocent victims and by thus threatening the victims abducted them. Ultimate intention of the extremists was to ask for ransom for release of the abducted persons. In order to apply the principle of Section 34 IPC, element of participation in action is necessary. The essence of liability under this Section is the existence of common intention, animating the offenders and the participation in the criminal act in furtherance of common intention. Hon'ble Supreme Court in AIR 1965 SC 264 : Shiv Prasad Chuni Lal Jain and Pyarelal Ishwardas Kappor v. State of Maharashtra held that the essence of Section 34 IPC is that the accused must be physically present at the commission of the crime, which is not established in the case. 47. However, on careful consideration of the materials on records, it is the evidence of the victims that the accused Appellant, apart from kidnapping them from the market place by firing gun shots on a few innocent persons, also continued to keep them in captivity after abduction over a long period of time itself clearly indicates that the entire incident was carried out in furtherance of the common intention of the accused-Appellant and his associates. Reasoning and logical conclusion of the facts and circumstances clearly indicates that the accused-Appellant, Mangal Debbarma, not only killed the innocence persons in the market, but also after abducting his victims continued to keep them in captivity, until he received ransom from the relatives of the victims by threatening them with dire consequences. Reasoning and logical conclusion of the facts and circumstances clearly indicates that the accused-Appellant, Mangal Debbarma, not only killed the innocence persons in the market, but also after abducting his victims continued to keep them in captivity, until he received ransom from the relatives of the victims by threatening them with dire consequences. Though it is disputed by the learned Counsel for the accused-Appellant, but it has been categorically affirmed by the witnesses, on their release, that the extremists to have received the ransom from their relatives. 48. In (2007) 11 SCC 633 : Vishwanath Gupta v. State of Uttaranchal, the Hon'ble Supreme Court held that to constitute an offence under Section 364(A) IPC, there has to be a threat to the kidnapped/abducted that if the demand for ransom is not met then the victim is likely to be put to death and in the event death is caused, the offence of Section 364(A) IPC is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not met, then causing death. The relevant extracts of the decision may be gainfully reproduced hereinbelow: 9. The important ingredient of Section 364-A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not met then the victim is likely to be put to death and in the event death is caused, the offence of Section 364-A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not mat, then causing death. If the three ingredients are available, that will constitute the offence under Section 364-A of the Penal Code. Any of the three ingredients can take place at one place or at different places. In the present case the demand of the money with the threat perception had been made at (Haldwani) Nainital. The deceased were kidnapped at Lucknow and they were put to death at Unnao. Therefore, the first offence was committed by the accused when they abducted Ravi Varshney and Anoop Samant at Lucknow. Therefore, Lucknow court could have territorial jurisdiction to try the case 49. The deceased were kidnapped at Lucknow and they were put to death at Unnao. Therefore, the first offence was committed by the accused when they abducted Ravi Varshney and Anoop Samant at Lucknow. Therefore, Lucknow court could have territorial jurisdiction to try the case 49. Since both PW.17 and PW.18, who were abducted by the extremists, were released from the captivity; therefore, the offence under Section 364(A) IPC, cannot be stated to have been made out in view of the decision of the Hon'ble Supreme Court in Vishwanath Gupta(supra). However, the evidence on records clearly reveals that P Ws.17 and 18 were abducted and was carried out so that the persons, who have been abducted, may be put in danger and such abduction was committed either with a view to murder of the victims or to obtain. Therefore, apparently, the offence under Section 364(A) IPC is required to be modified to an offence under Section 364 IPC. 50. For the foregoing reasons, the appeal is partly allowed. The conviction of the Appellant under Section 364(A) IPC is altered to one under Section 364 I.P.C. Consequently, the sentence of imprisonment for life with fine awarded to the Appellant is set aside and the Appellant is now sentenced to suffer R.I. for 10 years for the altered conviction. 51. With the above modification, this appeal is partly allowed. Appeal allowed.