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2013 DIGILAW 249 (GAU)

Prakash Kanda v. State of Assam

2013-04-08

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. This appeal has been preferred against judgment dated 31.3.2006, passed by the learned Ad-hoc Sessions Judge, Karimganj, in Sessions Case No. 101/2004, whereby the appellants have been convicted under Section 147/ 302 read with Section 149 IPC and sentenced each of them to undergo rigorous imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer additional 1 (one) year simple imprisonment under Section 302 IPC read with Section 149 IPC; to undergo 2(two) years rigorous imprisonment under Section 147 IPC, and also to undergo rigorous imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer additional 1(one) year simple imprisonment under Section 149 IPC with direction that all the sentences shall run concurrently. The prosecution case, in short, is that on 6.12.2002 at about 2-30 AM the appellants murdered one Bijoy Karmakar, son of late Bishram Karmakar of Bubrighat T.E, a resident under Patharkandi Police Station. A case, being Patharkandi P.S. Case No. 197/02, was registered under Section 147/ 302 IPC on the basis of a written Ejahar received from one Nripen Karmakar. The Investigating Officer visited the place of occurrence, held inquest on the dead body, drew sketch map of the place of occurrence, recorded the statement of witnesses and despatched the dead body to Karimganj Civil Hospital for holding post mortem examination. On completion of investigation and after collection of post mortem report, the Investigating Officer submitted charge sheet against the present appellants under Section 147/ 302 IPC. The learned Magistrate concerned committed the case to the Court of Sessions, Karimganj, for disposal. The case was made over to the learned Ad-hoc Sessions Judge, Karimganj, for trial. Accordingly, the learned trial Court, on consideration of the materials on record and upon hearing the parties, framed charge under Section 147/ 302 read with Section 149 IPC. The aforesaid charges were read over and explained to appellants to which they pleaded not guilty and demanded trial. Thus, they stood the trial. 2. The prosecution examined in all 7 witnesses including the medical and the investigating officers and at the closure of recording of evidence of prosecution witnesses examined the appellants under Section 313 Cr.P.C. who denied all the incriminating evidence placed against them. The appellants also examined 2 witnesses in their defence. Thus, they stood the trial. 2. The prosecution examined in all 7 witnesses including the medical and the investigating officers and at the closure of recording of evidence of prosecution witnesses examined the appellants under Section 313 Cr.P.C. who denied all the incriminating evidence placed against them. The appellants also examined 2 witnesses in their defence. The learned trial Court, on consideration of the evidence on record and also upon hearing the learned counsel for the parties, passed the order of conviction and sentence as indicated above which is under challenge by the appellants from jail. 3. We have heard Mrs. R.D. Mazumdar, learned Amicus Curiae, for the appellants and also Mr. K.A. Mazumdar, learned Addl.P.P. Assam, for the respondent State. 4. We have carefully perused the evidence on record. For arriving at a correct decision and disposal of this appeal, we, first of all, undertake to appreciate the evidence of the prosecution witnesses. 5. We start with the evidence of PW 3, Nripen Karmakar. He is the informant in this case and nephew of the deceased. As per his evidence he was at home on the night of occurrence at about 2 AM. He was informed by Prakash Karmakar and Sankar Tanti, both co-villagers, that Bijoy Karmakar and his wife Sumila Karmakar were quarrelling in their house. On being so informed, he came to the house of Bijoy Karmakar alongwith the said-person but they were not found in their house. Thereafter, Sankar Tanti took him to the house of the accused Gobinda Tanti where Bijoy Karmakar was found sitting on a bench in an injured state. Bijoy Karmakar told him that the accused Govinda Tanti, Prakash Karmakar, Ganga Tanti, Dulal Karmakar and Jitesh Karmakar strangulated him by neck and rained kicks, blows and hits on his person. They took Bijoy Karmakar to his house but on the next morning he was informed that Bijoy Karmakar had died at 4 PM. He testified that he filed the FIR. He proved the FIR, Ext.2 and his signature Ext.2(1). On being cross-examined he stated that he made the statement before the police. He denied the suggestion that he told the police that on being informed by Prakash Kanda and Sankar Tanti he went to the house of Bijoy Karmakar and found him dead in his (Bijoy's) house. There is a recreation hall (Nach ghar) near the house of the accused Gobinda Tanti. He denied the suggestion that he told the police that on being informed by Prakash Kanda and Sankar Tanti he went to the house of Bijoy Karmakar and found him dead in his (Bijoy's) house. There is a recreation hall (Nach ghar) near the house of the accused Gobinda Tanti. He denied the suggestion that he made statement before the police to the effect that deceased Bijoy Karmakar came home drunk and engaged in quarrel and scuffle with his wife. He, however, admitted that he did not see the act of assault on Bijoy in his own eyes. He also denied that he did not see Bijoy in injured condition in the house of the accused Gobinda. He admitted that in his FIR no averment has been made to the effect that he witnessed the incident of assault on the deceased Bijoy Karmakar. 6. PW 4, Subhash Karmakar, deposed that at the time of occurrence he was in his house. The accused Prakash Kanda and Sankar Tanti called out and took him to the house of the accused Govinda Tanti. They also called out PW 3, Nripen Karmakar, Sunu Munda and Dhananjay Karmakar and found the deceased in the house of accused Gobinda Tanti. He could notice injury on the neck and face of the deceased Bijoy Karmakar. The injured Bijoy told him that the accused Govinda Tanti, Ganga, Jitesh Karmakar, Ranjit Karmakar and Prakash Kanda, dealt blows and kicks on his person and strangulated him by neck. He, alongwith Sunu Munda and Sumila Karmakar, took Bijoy to his house but in the next morning he came to know that injured Bijoy had died. He was present at the time of holding inquest on the dead body. In cross-examination he stated that the police recorded his statement. He denied that on arrival at the house of Bijoy (deceased) he saw exchange of words between the deceased Bijoy and his wife Sumila. Deceased Bijoy and his wife, very often used to quarrel and, therefore, he did not take it seriously and returned home. He clarified that he came to the house of the deceased only once. According to him someone called Sumila to Gobinda's house but he did not know who came to call Sumila to the house of accused Gobinda and the victim Bijoy. There are many houses around the house of accused Gobinda and deceased Bijoy. He clarified that he came to the house of the deceased only once. According to him someone called Sumila to Gobinda's house but he did not know who came to call Sumila to the house of accused Gobinda and the victim Bijoy. There are many houses around the house of accused Gobinda and deceased Bijoy. He denied that he did not tell the appellants that the deceased Bijoy did not tell him about the above assault committed by the accused persons. 7. PW 5, Smt. Sumila Karmakar, is the wife of the deceased. She deposed that the accused Jitesh Karmakar is her cousin, being the son of her uncle. On the night of occurrence at about 11 P.M. altercation took place with her husband. She informed her cousin, accused Jitesh Karmakar, who came alongwith the accused Gobinda Tanti, Ranjit Karmakar, Ganga Tanti, Prakash Kanda and Saiba Tanti (wife of the accused Gobinda). They took her husband to nach ghar assaulting him all the way. They rained kicks and blows on his person and also assaulted him with bamboo stick etc. The accused Saiba took her to the house of Gobinda Tanti and kept her confined there. When she attempted to save her husband, the accused Prakash and Gobinda pushed her away and strangulated her husband by his neck. Then the accused persons took her to the house of accused Gobinda. In her presence, the accused persons were beating her husband and they paid no heed to her protest. Inspite of her request, the accused persons did not release her husband. Her husband told her that the accused persons would kill her and so she should return home. Accordingly, as asked by her husband, she returned home. But later on she came again to Gobinda's house and found her husband's face swollen with blood. Her husband's neck was also found swollen. She brought her husband home in injured condition with the help of PW3, PW 4, Sunu Munda and Dhananjoy. Her husband died in the early morning at 4 AM. In cross-examination, she stated that the police recorded her statement She stated that she herself did not witness the act of assault on her husband but denied the suggestion that she did not tell the police that the accused persons took her husband to the nach ghar beating him all the way. In cross-examination, she stated that the police recorded her statement She stated that she herself did not witness the act of assault on her husband but denied the suggestion that she did not tell the police that the accused persons took her husband to the nach ghar beating him all the way. She also denied that she did not tell the police that she was not confined in the house of Gobinda, while her husband was taken to nach ghar. 8. PW 6, Dhananjoy Karmakar, cousin of the deceased, stated that on the day and at the time of occurrence, he was at home. His brother Subhash Karmakar (PW 4) came and awoke him from sleep and told him that the accused Jitesh Karmakar, Prakash Kanda, Gobinda Tanti and Dulal Karmakar were beating Bijoy Karmakar in the house of Gobinda Tanti. Having come to know about it he went to Gobinda's house and found Bijoy in an injured state with swelling all over his body. On being asked Bijoy told him that the aforesaid accused persons assaulted him with lathi at the nachghar. At nach ghar Bijoy Karmakar's wife Sumila also told him that the accused appellants took her husband from nach ghar to the house of the accused Gobinda Tanti. At Gobinda's house, the accused Prakash Kanda, who was wearing 'boot' (shoe), kicked at the lower abdomen of her husband. He was present there accompanied by his son Nripen Karmakar (PW 3). Next day he came to know that Bijoy had died. In cross-examination he denied the suggestion that he did not tell the police that his brother Subhash Karmakar did not tell him about the assault on Bijoy Karmakar in the house of accused Gobinda, Prakash Kanda, Jitesh and Dulal. He also denied the suggestion that he did not tell the police that his brother did not inform him about the assault and kick dealt by the accused appellants at nach ghar and at the house of Gobinda. 9. The medical officer, Dr. Ranjit Baidya, who conducted post mortem examination on the dead body of the deceased, was examined as PW 2, While testifying the fact that he conducted the post mortem examination, proved the post mortem report Ext. 1 and his signature, Ext. 1(1). 9. The medical officer, Dr. Ranjit Baidya, who conducted post mortem examination on the dead body of the deceased, was examined as PW 2, While testifying the fact that he conducted the post mortem examination, proved the post mortem report Ext. 1 and his signature, Ext. 1(1). Following is the operative portion of the said report: External appearance:- A dead body of a young Hindu male aged about 28 years, whose rigor mortis was present, bruise with swollen over right cheek upto the right temporal region, right eye closed with half opened left eye, blood stained discharged right nose present. On dissection of right cheek and right temporal region, it is found that the under lying cutaneous tissues and muscles are edematous and highly congested. Depressed fracture of right temporal wound measuring 3" x 2". Cranium and spinal canal:- Scalp:- right temporal region was found odimetous and highly congested and other parts were found normal. Skull was found fracture of right temporal bone measuring 3" x 2" found (depressed) and other parts found normal including vertebrae. Membrane:- Membrane found torn at the side of fracture. It is found oedematous and congested. Brain and spinal cord: A moderate amount of blood clot was seen in right temporal lobe underlying the fracture side with lacerated right temporal lobe. Spinal cord found healthy. Walls, ribs and cartilages found normal, pleurae, larynx, right and left lungs and pericardium found congested. Heart: left heart found empty and right heart found full. Vessels full of blood. Abdomen: Walls found normal. Peritoneum, mouth, pharynx and oesophagus found congested. Stomach and its contents found empty. Small intestine found with liquid faces, large intestine contents hard (faeces feacle mars). Liver, spleen, kidney found congested. Bladder and organs of generation found healthy. Injuries described were antemortem in nature. The medical officer opined that death was caused due to depression of vital centres by the compression effect of cerebral oedema resulting from injuries of temporal lobe of brain. The defence declined to cross-examine this medical officer. 10. PW1, Mahabir Singh, Manager of the Tea Estate, deposed that on 6.12.2002 at about 8 AM, some members of the tea garden Panchayat came to his office and reported that the dead body of Bijoy Karmakar was lying near the nach ghar. He reported the matter to the officer-in-charge of the local police station over telephone. 11. 10. PW1, Mahabir Singh, Manager of the Tea Estate, deposed that on 6.12.2002 at about 8 AM, some members of the tea garden Panchayat came to his office and reported that the dead body of Bijoy Karmakar was lying near the nach ghar. He reported the matter to the officer-in-charge of the local police station over telephone. 11. PW7, Bidyut Bhattacharjee is the S.I. of police posted at Patharkandi P.S., at the relevant point of time. As per his evidence, he received the information about the incident and made a G.D. Entry on 6.12.2002. He then rushed to the place of occurrence. He saw the dead body of Bijoy Karmakar lying on the bed. He held inquest and prepared a report, Ext.4, and also drew a sketch map of the place of occurrence. He received the FIR at 3.35 P.M. at the place of occurrence and registered a case at the police station. He proved the Ejahar which has been marked as Ext.2. He interrogated the witnesses and recorded their statements. Thereafter, he arrested the accused persons and produced them before the Court. On his transfer, he handed over the case diary to the Officer-in-charge. The investigation was completed by the O.C. who laid the charge sheet against all the five accused persons (present appellants) u/s. 147/ 302 IPC. He stated that the dead body was sent to morgue at 3 P.M. 12. PW 4, Subhash Karmakar, deposed that on the night of occurrence at about 9 P.M., on hearing hullah, he alongwith his brother Dhananjoy, went to the house of Bijoy Karmakar and saw him exchanging words with his wife Sumila. According to him, such quarrel between the couple was an usual feature and so he went away paying no attention to it. In cross-examination, he denied that his sister PW 5 ever told him that her husband, Bijoy, was beaten up by the appellants in the nach ghar. He also denied that his sister, PW 5, ever told him that the appellants were assaulting Bijoy in Gobinda's house. PW 7 also stated that the witness No. 5 never told him that the accused Prakash Kanda kicked by 'boot' at the lower abdomen of the deceased Bijoy at the doorstep of accused Gobinda. He did not record the statement of Sunil Tanti u/s. 161 Cr.P.C. although he was an inquest witness. PW 7 also stated that the witness No. 5 never told him that the accused Prakash Kanda kicked by 'boot' at the lower abdomen of the deceased Bijoy at the doorstep of accused Gobinda. He did not record the statement of Sunil Tanti u/s. 161 Cr.P.C. although he was an inquest witness. He did not record the statement of Sri Duraga Charan Karmakar although he interrogated him during investigation. 13. The evidence of above prosecution witnesses were placed before the accused persons, at the time of examining them u/s. 313 Cr.P.C. All the accused persons denied the allegations. The accused Prakash Kanda took the plea of alibi and denied the allegation. He desired to adduce evidence in his defence. The accused Gobinda Tanti took the plea of complete denial of the allegation. In his examination accused Gobinda stated that very often the deceased Bijoy and his wife used to indulge in quarrel. On the night of occurrence, at about 11 PM, he was sleeping in his house. At that time, PW5, Sumila awoke him from sleep and told him that her husband Bijoy Karmakar was chasing to assault her by a dao and she requested to save her from Bijoy. On the said night, he called Sankar Tanti of Bagan Panchayat Sankar Tanti called PW 3 Nripen Karmakar, PW 4 Subhash Karmakar and PW 6 Dhananjoy Karmakar to his house. They took away Bijoy from Gobinda's house. On the next morning he went to the house of Bijoy Karmakar at about 10 A.M. and found the dead body of Bijoy at the courtyard. He also desired to adduce evidence in his defence. 14. Accused Smti. Ganga Tanti, Jitesh Karmakar and Ranjit Karmakar also denied all the allegations. They took the plea of complete denial and expressed their desire to examine the witnesses in their defence. 15. The defence examined 2 witnesses. D.W. 1, Sri Tunu Kanda, stated that there was almost a regular quarrel between the deceased and his wife. On the night of occurrence at about 11 PM the deceased quarrelled with his wife and chased her to the house of accused Gobinda. He saw the said incident in his own eyes. His house is located at a distance of 3 nals from the house of accused Govinda. Some co-villagers came to the place and resolved the quarrel between the deceased husband and wife and sent them home. He saw the said incident in his own eyes. His house is located at a distance of 3 nals from the house of accused Govinda. Some co-villagers came to the place and resolved the quarrel between the deceased husband and wife and sent them home. At that time PW 6 Dhananjoy Karmakar also came as an elderly person from the community of the deceased. On the next day, the dead body of Bijoy Karmakar was found on the courtyard. The deceased Bijoy was a ghar jowai (a son-in-law who lives in father-in-law's house) In cross-examination he stated that he did not accompany the accused person when the deceased and his wife Sumila went to the house of accused Gobinda. He however, stated that later on, he went to the house of accused Gobinda after hearing the hulla and saw Bijoy sitting on a bench. He saw all the accused persons. The accused persons did not take the deceased Bijoy to nach ghar. On the said night he did not go to nach ghar of the tea garden. To his knowledge the deceased Bijoy was not suffering from any disease. He denied the suggestion that the deceased died as a result of assault of the accused persons and in order to save them he had deposed falsely. He also stated that he did not see any injury on the person of Bijoy. He denied the suggestion that even after having noticed injury on the person of Bijoy, he has suppressed the truth and gave false evidence. 16. DW 2 Bijoy Karmakar (another person of the same name of deceased) stated that the deceased was his brother-in-law and Sumila was his cousin (sister), being daughter of his uncle. Sumila is the wife of the deceased. The deceased had relation with a girl and for this reason Sumila and her husband used to quarrel very often. Both the deceased and his wife used to have liquor. He had no knowledge how Bijoy Karmakar died. His house is located at a distance of 8/10 nals from the house of the deceased. Durga Charan Karmakar was the father of Sumila. He saw the dead body of Bijoy lying on the courtyard, on the day of occurrence in a morning two years ago. Sumila did not tell him any thing about the death of her husband Bijoy. His house is located at a distance of 8/10 nals from the house of the deceased. Durga Charan Karmakar was the father of Sumila. He saw the dead body of Bijoy lying on the courtyard, on the day of occurrence in a morning two years ago. Sumila did not tell him any thing about the death of her husband Bijoy. In the cross examination, he denied the suggestion that accused Jitesh Karmakar was his cousin (brother), being the son of his aunt. 17. In this case, PW 5, wife of the deceased, is the main witness inasmuch as she has been projected so by the prosecution as an eye witness. Her evidence has been given prime importance and the conviction order was passed largely on the basis of her evidence. As per her evidence her husband picked up a quarrel with her on the date of occurrence and she informed her cousin, appellant No. 2, who came alongwith the other appellants. The appellants took the deceased Bijoy to nach ghar beating him all the way. PW 5 was taken to and confined in the house of appellant No. 2 and she was not allowed to visit the nach ghar. She had no occasion to see in her own eyes the alleged act of beating her husband in the nach ghar. She has truthfully admitted the said position in her cross-examination. As claimed by her she is an eyewitness only to the facts of gathering of the appellants at her house and beating her husband before he was taken to nach ghar. 18. We are to find out whether PW 5 deposed truthfully and whether her evidence is acceptable as cogent and reliable. In this regard the evidence of I.O., PW 7, who visited, interrogated the witnesses and recorded their statements has to be examined first. Defence has put up a case before the learned trial Court that PW 5, during investigation did not state before the I.O. that the accused appellant on her call, came to her house and took away her husband beating and assaulting him all the way to nach ghar. The defence counsel thoroughly cross-examined the I.O. To a question put to him the I.O. clearly stated that PW 5, wife of the deceased, did not tell him that her husband was taken by the appellants by beating and assaulting all the way towards nach ghar. The defence counsel thoroughly cross-examined the I.O. To a question put to him the I.O. clearly stated that PW 5, wife of the deceased, did not tell him that her husband was taken by the appellants by beating and assaulting all the way towards nach ghar. The I.O. also stated that PW6, Dhananjoy Karmakar, did not tell him that the accused took the deceased to the nach ghar assaulting him all the way. The I.O. further stated that the aforesaid witness did not make any statement to the effect that the accused appellant assaulted the deceased in the house of appellant Gobinda Tanti. The I.O. clearly deposed that PW 5, Sumila Karmakar, made no statement to the effect that she ever told that appellant Prakash Khanda kicked by boot at the lower abdomen of the deceased at the door step of appellant Gobinda. 19. To test the veracity of the evidence of the I.O. (PW 7), we have perused the statement of Sumila Karmakar, PW 5, recorded by the I.O. u/s. 161 Cr.P.C. It is found correct that no statement has been made by Sumila to the effect that when her husband quarrelled and chased her, she informed her cousin Jitesh Karmakar for her protection. What she stated was that Jitesh Karmakar and other accused appellants came across on the way and she was taken by Smt. Saiba Tanti, wife of accused Gobinda, to their house. She resisted accused Gobinda and Prakash but foiled to prevent them from taking her husband to the nach ghar. The appellants held her husband and dealt kicks and blows. Then her husband, in an injured state asked her to return home otherwise she might be killed by the appellants. As asked by her husband, she returned home and waited for his return. The evidence of PW 7(I.O.), is not borne on record, so far as it relates to the aforesaid portion of the fact We, however, on verification, find that PW 5 did not state before the I.O. that accused appellant Prakash Kanda kicked the deceased by boot. 20. The basic evidence is that PW 5 was an eyewitness to the fact of presence of the appellants and assaulting her husband and taking him away from her sight towards nach ghar. 20. The basic evidence is that PW 5 was an eyewitness to the fact of presence of the appellants and assaulting her husband and taking him away from her sight towards nach ghar. It is not material whether the appellants came to her house alongwith her cousin on being called by PW 5 or they came there on their own. She has proved in oral evidence that the appellants came to her house when she was chased by the deceased in the course of quarrel and the appellants, having arrived at the scene, caught hold and took away the deceased beating him in her presence. She has also proved that she was taken to the house of appellant Gobinda and she was not allowed to come to the nach ghar. So far the prosecution has been able to prove the fact that the deceased, before being taken to nach ghar, was assaulted by the appellants in presence of his wife, PW 5. There may be omission in her statement in telling the I.O. that the accused Prakash Khanda kicked her husband by boot at his lower abdomen. It appears that the defence counsel tried to confront PW 5 with her previous statement made u/s. 161 Cr.P.C. before the I.O. In fact no such contradiction could be pointed out or brought. PW 5 deposed before the Court what she actually, stated before the I.O. under Section 161 Cr.P.C., except the omission as indicated above, which does not affect the prosecution case. Such omission, in our considered view, is not material if the main material fact is found proved in the evidence. 21. The aforesaid piece of evidence on the first part of the incident could not be impeached by the defence but in our considered view, this is not enough to establish the charge under Section 302 IPC against the appellants given the fact that PW 5 was not an witnesses to the second part of the incident i.e. beating of her husband Bijoy by the appellants at the nach ghar. PW 5 is honest enough to admit that she did not witness the act of beating of her husband at the nach ghar. She is also honest enough in telling that the appellants brought her husband back home in the night and he was found dead in the morning. PW 5 is honest enough to admit that she did not witness the act of beating of her husband at the nach ghar. She is also honest enough in telling that the appellants brought her husband back home in the night and he was found dead in the morning. The evidence, thus, found on record, is that her husband was not brought home dead by the appellant from the nach ghar. The injured Bijoy died at his house. The question that arises in the aforesaid facts and circumstances, is, whether Bijoy succumbed to the injuries received due to beating of the appellants. This question involves further analysis and appreciation of medical evidence. 22. The injuries found in post mortem examination held by the PW 2 (medical officer) has been quoted earlier. From the nature of injuries received by the deceased there is no difficulty, even for a lay-man, that the deceased was subjected to severe physical torture. 23. As discussed earlier it has been proved by sufficient evidence that the deceased, before being taken to the nach ghar, was beaten up by the appellants near his house in presence of his wife. It is also proved by cogent evidence that the deceased was taken to the nach ghar. What had been done to the deceased at nach ghar is not seen by PW 5. There is no supporting evidence of any witness that the deceased was beaten up by the appellants in the nach ghar but a strong in-criminating circumstance against the appellant has been found inasmuch as the deceased was last seen with the appellants. The deceased was in the custody of the appellants, till at last, he was taken to the nach ghar. The other circumstantial evidence is that as per the oral evidence of PW 5, the deceased was brought back from the nach ghar to the house of accused Gobinda. She saw her husband in the house of accused Gobinda in an injured state with blood and swelling face. She also noticed swelling on the neck of her husband. She brought him home, in such position with the help of PW 3, 4, 6 and Sunu Munda, The prosecution did not examine Sunu Munda. We have found that the aforesaid evidence by PW 3, 4 and 6 have corroborated the evidence of PW 5 in material particulars. 24. The chain of events is continuous. She brought him home, in such position with the help of PW 3, 4, 6 and Sunu Munda, The prosecution did not examine Sunu Munda. We have found that the aforesaid evidence by PW 3, 4 and 6 have corroborated the evidence of PW 5 in material particulars. 24. The chain of events is continuous. No break is found therein. The unbroken chain of events is that the appellants arrived at the place where the deceased and PW 5 engaged in quarrel, the appellants interfered with and started assaulting the deceased, taking him to nachghar and his wife to the house of appellant Gobinda by Saiba. From nach ghar the deceased was brought to the house of appellant Gobinda and then in an injured state brought home by his wife (PW 5) and found dead in the morning. There is no doubt that the deceased succumbed to his injuries. Thus, there is no missing link in the above chain of circumstances. The defence made an endeavour to make the Court believe that since PW 5, nor any witness saw the deceased being beaten by the appellants in the nach ghar, the link in the circumstances, has been snapped and such circumstantial evidence cannot be pressed into service to hold the appellants guilty of committing murder. We have already stated earlier that as the deceased was in the custody of the appellants, after he was taken by them to nach ghar, it could legally be inferred that the deceased was physically assaulted by the appellants. It cannot be said or inferred that the deceased was assaulted by some other persons unless it is proved so by reliable and cogent evidence. Besides, the defence counsel put no suggestion to the effect that the deceased received injuries on his person as he was assaulted by some person/persons other than the appellants. Moreover, from the manner of cross-examination it is found that the defence did not take the plea that the deceased was not taken by the appellants to nach ghar. The defence having not taken such defence, it may be taken as an admitted position that the appellants took the deceased to nach ghar and assaulted him during their custody till he was brought to the house of appellant Gobinda from where PW 5, being the wife, took the custody of her husband Bijoy in an injured state. 25. The defence having not taken such defence, it may be taken as an admitted position that the appellants took the deceased to nach ghar and assaulted him during their custody till he was brought to the house of appellant Gobinda from where PW 5, being the wife, took the custody of her husband Bijoy in an injured state. 25. From the above discussion and appreciation of evidence, we find that the first part of the event i.e. beating of the deceased in presence of his wife (PW 5) and taking him to the nach ghar by the appellants, has been proved by direct and ocular evidence of PW 5 and the same has been corroborated by the evidence of PW 3, 4 and 6. The second part of the event, namely, further beating of the deceased by the appellants at nach ghar has been proved by indirect or circumstantial evidence bearing unbroken chain from which the appellants could be held guilty by drawing legal inference in accordance with the existing law. In this regard reference may be made to Gambhir Vs. State of Maharashtra, reported in (1982) 2 SCC 351 . It is held therein that when a case rests upon circumstantial evidence such evidence must satisfy three tests (i) the circumstances from which a inference is sought to be drawn must be cogently and firmly established (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The law requires that circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In our considered view, the above circumstantial evidence has satisfied all the aforesaid three tests and the prosecution has been able to prove the charge under Section 302 IPC against the appellants beyond all reasonable doubt. 26. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In our considered view, the above circumstantial evidence has satisfied all the aforesaid three tests and the prosecution has been able to prove the charge under Section 302 IPC against the appellants beyond all reasonable doubt. 26. As regards the charge under Section 147 and 149 IPC, we have found from the evidence on record that all the accused appellants came in a group to the house of deceased upon hearing the hue and cry made by PW 5 who wanted to save herself from the attack of her husband. All the appellants are neighbours of the deceased and they found the couple regularly engaging in quarrel and scuffle. The appellants assembled in prosecution of a common object to give lesson to the husband of PW 5 and they started beating him in presence of his wife and took him to nach ghar. They have executed their common object but exceeded the limit resulting into the death of the deceased. The learned trial court therefore, held all the appellants guilty of committing offence under Section 147 and 148 IPC while holding them guilty of committing murder of the deceased under Section 302 IPC. We are in agreement with the aforesaid finding of guilt of the appellants, except in the case of appellant No. 5, Smt Ganga Tanti, who was in fact, not a participant to the act of committing assault on the deceased inasmuch as she did not accompany the other appellants to nach ghar where the deceased was further assaulted. As per evidence on record, appellant No. 5 remained in her house along with the wife of the deceased, PW 5, and prevented her from going to nach ghar. This fact has been surfaced in the evidence of PW 5. The appellant No. 5 by preventing PW 5 from going to nach ghar, saved her from being assaulted by the other appellants, which was most likely or possible at that point of time. We find no incriminating evidence or circumstances against the appellant No. 5 except that she is the wife of appellant No. 2, in whose house wife of the deceased (PW 5) was kept guarded. We find no incriminating evidence or circumstances against the appellant No. 5 except that she is the wife of appellant No. 2, in whose house wife of the deceased (PW 5) was kept guarded. There is no evidence that appellant No. 5 gave any blow or dealt any assault on the deceased or his wife PW 5 at any point of time in the entire course of occurrence. In the aforesaid facts and circumstances and evidence on record, we hold the appellant No. 5, Smt Ganga Tanti, not guilty and quash the order of conviction and sentence against her. She stands acquitted and be set at liberty forthwith if her further detention is not required in connection with other case. 27. We find no valid ground to interfere with or reverse the order of conviction and sentence to acquittal in respect of appellants No. 1 to 4. The conviction and sentence as recorded by the learned trial Court, in so far as appellant No. 1 to 4 are concerned, stands upheld. 28. The appeal of appellants No. 1 to 4 stands dismissed while the appeal of appellant No. 5 stands allowed and her bail bond stands discharged. 29. Let the learned Amicus Curiae be paid an amount of Rs. 5,000/- as her legal fee for rendering the legal assistance to this Court. Return the LCR.