JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment dated 17.03.2010, passed by learned Addl. Sessions Judge, (FTC), Biswanath Chariali in Sessions case No. 20/2007, convicting the accused-appellants, viz. (1) Munu Lagun, (2) Martius Surin, (3) Shri Sukram Lagun & (4) Bhadra Munda of offence u/s. 148/302/149 IPC and sentencing each of them to undergo rigorous imprisonment for 1 year for offence under Section 148 IPC and sentencing each of them to imprisonment for life and to pay a fine of Rs. 1,000/-, in default, R.I. for 60 days for offence under Section 302/149. It may be noted that some other persons, namely, Atuwa Munda. Jata Lagun, Budhni Joga, Tewari Munda and Fangsu Munda were acquitted of offence under Section147/148/448/302/149 IPC and are set at liberty forthwith. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused-appellants have preferred this appeal citing several infirmities in the judgment under challenge. 3. The brief facts necessary for disposal of the present appeal are that on 10.06.2003 at about 12.00 pm, the accused-appellants along with Atuwa Munda. Jata Lagun, Budhni Joga, Tewari Munda and Fangsu Munda and some other persons came to the residence of Shri Julia Kandulna and took her to a nearby jungle where some puja(worship) was conducted on that night. Once she was taken to such place, she was assaulted brutally for which she got killed in such place. 4. It has been alleged that the said woman was killed since she was believed to have been practicing witchcraft. An FIR to that effect on being lodged with the O/C, Helem Police Station on 11.06.2003, O/C Helem Police Station registered a case vide Helem P.S. Case No. 29/03 and he himself took up the investigation. 5. During the course of investigation the O.C. visited the place of occurrence, held inquest on the dead body, examined the witnesses, did other needful and on completion of investigation, he submitted charge-sheet under Section147/148/448/302/149 IPC against as many as 11 accused persons and forwarded them to the court to stand trial. The learned Magistrate before whom the charge was so laid committed the case to the court of sessions since the offence under Section 302IPC is triable by the Court of Sessions. 6. On receipt of the case on commitment, the learned Sessions Judge, Sonitpur transferred the same to the file of learned Addl. The learned Magistrate before whom the charge was so laid committed the case to the court of sessions since the offence under Section 302IPC is triable by the Court of Sessions. 6. On receipt of the case on commitment, the learned Sessions Judge, Sonitpur transferred the same to the file of learned Addl. Sessions Judge, Biswanath Chariali for disposal in accordance with law. The learned Addl. Sessions Judge, on receipt of the case on transfer, framed charges under Section 147/148/448/302/149 IPC and charges, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 7. During trial, two of the accused persons namely, Pandi Hemrom and Sanku Lagun died and as such, case against them stood abetted. In due course, the prosecution has examined as many as 6 PWs including the informant and the Investigating Officer (in short I.O.). The statements of the accused persons under Section 313 Cr.P.C. were recorded. The accused plea was of total denial. However, the defence examined one witness as DW 1 to support their case that they are no way involved with the crime under scrutiny. 8. The learned trial court on the conclusion of trial and hearing the arguments, advanced by the learned counsel for the parties, while acquitting as many as 5 accused -persons convicted the accused/appellants of offences under Section 148/302/149 IPC and sentenced them to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 9. Opening up argument on behalf of accused-appellant, Mr. D.M. Choudhury, learned Amicus Curiae contends that the only eye witness in the case under consideration is PW 2 Soma Munda. Though in his evidence, he deposed that on the fateful day, he went to the place of occurrence and found his aunt being assaulted by Munu Lagun, Martius Surin, Sukram Longa and Bhadra Munda and 10 other persons, yet, PW 2 in his cross examination admitted that he did not notice who assaulted the victim on the night in question which clearly shows that the evidence of PW 2 is unsafe for reliance for the purpose of conviction of any of the accused persons who is facing trial in the case aforementioned. 10. It is also stated that though the incident in question occurred on the night of 10.06.2003, the FIR was lodged on the next date. 10. It is also stated that though the incident in question occurred on the night of 10.06.2003, the FIR was lodged on the next date. Thus, there was some delay but such delay remained unexplained. Delay which remains unexplained casts a serious doubt on the entire prosecution case. On this count alone, the prosecution case needs to be thrown overboard. 11. It has been alleged that around 200 persons participated in the incident in question. But the prosecution was so selective that it had submitted charge-sheet only against 11 accused persons. More importantly, the persons who were present at the place of occurrence and who witnessed the incident aforementioned were not cited as witness either. This revelation again serves to show that prosecution case is based on extremely weak evidence. 12. Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, appearing for the State submits that the evidence of PWs, more importantly, PW 2 is trustworthy and his evidence coupled with the testimonies of other witnesses unmistakably demonstrates that it was the accused/appellants who were the persons responsible for killing one Julia Kandulna on the night of 10.06.2003 at the place of occurrence in furtherance of common object of all of them and he, therefore, submits to dismiss the present appeal on affirming the judgment of the trial court. 13. We have carefully considered the rival arguments having regard to the evidence on record and the judgment under challenge. Before we proceed further, we find it necessary to have a look at the evidence of the Doctor who held autopsy on the body of the deceased at Behali PHC on 11.06.2003. He was Dr. J.C. Dey. According to him, on 11.06.2003, he held inquest on the body of Julia Kandulna, aged about 50 years in connection with Helem PS Case No. 29/2003 and found the following:-- External appearance:-- Average built, female dead-body, wearing one pink coloured blouse and a petticoat. Clothing and body stained with blood. Wounds:-- (i) Multiple linear bruises present over the right side of arm and forearm and left forearm of various size and shapes. (ii) Swelling of left lower part of the forearm with compound fracture both bone at lower 1/3rd. (iii) Multiple bruises present on the back and chest of various size & shapes. (iv) Lacerated injuries four in numbers over the left side of parieto-temporal region. (ii) Swelling of left lower part of the forearm with compound fracture both bone at lower 1/3rd. (iii) Multiple bruises present on the back and chest of various size & shapes. (iv) Lacerated injuries four in numbers over the left side of parieto-temporal region. Obliquely 3" X 1/2", 4" X 1/2", 2 1/2 " X 1/2 ", 3" 3/4 " in size. All are of bone deep with fracture, parietal, temporal bone (depressed fracture). (v) Lacerated injury 1" X 1/4" skin deep on the right frontal region. Blood clot present in the wounds. Cranium and spinal canal:-- Scalp - injuries as described. Skull - depressed fracture over the parietal temporal bone. Vertebrae - healthy. Membrane - Extradural blood clot present. Brain - congested and oedematus. Sub- dural haemorrhage present depressing the brain matter. Thorax:- Walls - bruises as described. Inner wall shows clotted blood. Ribs/cartilage- healthy. Heart-right chamber contain little blood. Left chamber was empty. Other organs of this column are found health. Muscles, bones and joints- Injury - as described. Disease or deformity - nil. Facture - as described. Dislocation - nil. 14. The Doctor opines that injuries aforesaid were ante-mortem in nature and the death which was homicidal in character occurred due to hemorrhage and shock as a result of injuries, sustained. 15. So situated, let us consider the testimony of most important witness who is none other than PW 2 Sri Soma Munda. According to him, on the fateful night, a puja was arranged in the jungles of Nalinibari village. On that night, he came home to know from his sister that his aunt was taken to the place where puja was arranged on that night. The villagers suspected her to be a person practicing witchcraft. 16. Being so informed, he rushed to such place and found his aunt being beaten by Munu Lagun, Martius Surin, Sukram Longa and Bhadra Munda. 10 other persons also joined them in assaulting the woman aforesaid. Having witnessed the incident, he made necessary arrangement to report the matter to his villagers. However, when he returned to such place, he found the woman lying dead at such place. 17. Thereafter, the FIR was lodged. Police came to such place and seized one lathi and one dao from the place of occurrence on the strength of seizure list Ext. 2. However, when he returned to such place, he found the woman lying dead at such place. 17. Thereafter, the FIR was lodged. Police came to such place and seized one lathi and one dao from the place of occurrence on the strength of seizure list Ext. 2. In his cross examination, he deposes that all the accused persons who were present in the Court on that day took part in assaulting his aunt. But he did not notice who played what part in assaulting the hapless lady on the night in question. 18. PW 4 Ramesh Kurmi, a VDP Secretary, deposes that on the fateful night, he came and saw that Julia being assaulted by some persons suspecting that she was practicing witchcraft. He immediately rushed to such place and found Julia lying dead there. A village 'mel'(extrajudicial trial) was held at the village on that night at 2 am. The accused persons who were facing trial told him that all the people who were present at the place of occurrence did not participate in committing the crime under scrutiny. They also promised that they would surrender before the Police so that only the persons responsible for such crime got punished. 19. In his cross examination, he stated that the P.O. is situated at a distance of V% km from his house. In his cross examination, he also admitted that he did not report the police that the accused persons admitted to have killed the deceased at the place of occurrence on the night in question. In that connection, he offered an explanation and such explanation was to the effect that as the police officer did not enquire him on such matter, so he did not divulge the same to the police officer during the course of investigation. 20. Anil Kandulna, PW 1 is the son of the deceased. According to him, on the fateful night, his mother was killed by village people suspecting her to be witchcraft. In that connection, he lodged an FIR which he proved as Ext. 1. 21. PW 6 Sri Bishnu Dulakaharia is the S.I. of police. According to him, on 11.06.2003, he was posted as O.C., Helem Police Station. On that day, he received the FIR which was lodged by Anil Kandulna, PW 1. Having received the FIR, he registered a case and he himself took up the investigation. 1. 21. PW 6 Sri Bishnu Dulakaharia is the S.I. of police. According to him, on 11.06.2003, he was posted as O.C., Helem Police Station. On that day, he received the FIR which was lodged by Anil Kandulna, PW 1. Having received the FIR, he registered a case and he himself took up the investigation. During the course of investigation, he visited the place of occurrence, conducted inquest on the dead body and prepared a report in that connection which he proved as Ext. 2. 22. He also prepared a sketch map of the place of occurrence which he proved as Ext. 4 and seized one bamboo stick on the strength of seizure list, which he proved as Ext. 2. During the course of investigation, he arrested as many as nine accused persons and sent them to judicial custody. On the conclusion of investigation, he submitted charge-sheet against the accused persons. 23. Above being the evidence on record, let us see how far such evidence makes out the allegations brought out against the accused persons. However, before we proceed further, we find it necessary to know when vicarious liability in contemplated in section 149 IPC can be invoked. This becomes necessary since the prosecution strenuously contends that the woman aforementioned was killed by a large number of people in prosecution of their common object. 24. In that connection, it may be stated that section 149 IPC makes every members of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. 25. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. 25. In other words, for application of liability, as contemplated in section 149 IPC, the prosecution needs to establish the followings:-- (1) There must be an unlawful assembly, (2) Commission of an offence by any member of an unlawful assembly, (3) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. 26. If these three elements are satisfied, then only a conviction under Section 149 IPC, may be substantiated, and not otherwise. Coming back to our case, we have found that PWs very clearly establishes that on the fateful night i.e. on 10.06.2003, the deceased, a lady of about 50 years of age, met her death on sustaining several wounds on her person. We have also found that her death was homicidal in nature occasioned by ante-mortem wounds which were found inflicted on her person. 27. Now, the question is who the persons responsible for committing such crime are. The evidence of PW 2 very clearly demonstrates that a large number of persons were present at the place of occurrence on the night in question. At least 14 of them participated in assaulting the victim on the night eventful. Though the PW-2 could not identify all the miscreants yet he could clearly identify the accused/appellants. 28. We may note here that in his evidence, the PW-4 has stated that the accused/appellants had impliedly admitted the killing of woman on the night of 10.06.2003. The evidence of PW-2 and PW-4 coupled with the admission, made by the accused persons in their examination under Section 313 Cr.P.C., clearly establishes that accused/appellants were at the place of occurrence on the night in question and they along with many others participated in such crime extinguishing the life of an old lady. 29. The evidence of PW-2 and PW-4 coupled with the admission, made by the accused persons in their examination under Section 313 Cr.P.C., clearly establishes that accused/appellants were at the place of occurrence on the night in question and they along with many others participated in such crime extinguishing the life of an old lady. 29. We may note that PW 4 admitted that he did not divulge before the I.O. during the course of investigation that accused persons admitted to have killed the deceased on the night in question But he has offered explanation in that connection. According to him, the I.O. did not enquire him anything in that connection and as such, he refrained from divulging such stories to the I.O. while he was being examined by him during the course of investigation. 30. Such explanation, in our considered view, deserves to be accepted, more so, when there is evidence on record to show that all the PWs including PW 4 do not know the nitty-gritty of complicated Indian legal system. Even if we assume for the sake of argument for a moment that the evidence of PW 4 should not be acted upon for any reason whatsoever yet the evidence of PW 2 coupled with the admission accused appellants clearly demonstrates that the accused was the person responsible for the death of the deceased on the night in question. 31. In his evidence, the Doctor clearly states that the deceased died having sustained wounds being caused by blunt weapons. The evidence on record reveals that on the night in question, most of the accused persons assaulted the deceased with fist and blows. The evidence of the Doctor, therefore, lends more and more credence to the evidence of PW 2 or for that matter the evidence of PW 4 that on the fateful night, accused/appellants assaulted the deceased which occasioned her death on the same night. 32. Our forgoing discussion, now, reveals that on the night in question accused/appellants along with many others formed an assembly. Now, the question whether such assembly was unlawful and if so, what is/are the object(s) of such an unlawful assembly. 32. Our forgoing discussion, now, reveals that on the night in question accused/appellants along with many others formed an assembly. Now, the question whether such assembly was unlawful and if so, what is/are the object(s) of such an unlawful assembly. When one considers the facts that a large number of people gathered at the place of occurrence on the night in question, armed with various weapons, assaulted an hapless lady believing her to be a woman practicing witchcraft extinguishing her life at the place of occurrence on such a night, it would appear clear that the assembly aforementioned was undoubtedly an unlawful assembly and object of such assembly was to cause the death of the deceased. 33. That being so, we are constrained to hold that on the fateful night, the accused/appellants namely, (i) Munu Lagun, (ii) Martious Surin, (iii) Sukram Longa and (iv) Bhadra Munda along with many other miscreants formed an unlawful assembly with the object of causing death of victim namely, Julia kandulna and in prosecution of such object, they armed with deadly weapons extinguished the life of aforesaid hapless women. 34. Being so, we are of the clear opinion that the accused/appellants, are guilty of offences under Section 148/302/149 IPC and therefore, learned trial Court was right in convicting the accused/appellants of aforesaid offences and sentenced them to punishment as stated above. 35. In the result, the appeal fails. 36. Send down the LCR. 37. We may note here that it is a quite common phenomenon in the State of Assam, more particularly amongst the tea tribes, to kill men and women on the suspicion of practicing witchcraft. The incidents of killing persons on suspicion of practicing witchcraft are so common, so prevalent that some persons from the tea community get killed at a regular interval being the victims of such superstition/myth. But killing on the suspicion of practicing witchcraft is not the lone and sole superstition that afflicted the society aforementioned. 38. It is, in fact, one of the hundreds of maladies that have crippled the lives and livings of the tea tribes over a very long period of time. But the question is why do the tea tribes suffer from such maladies. The reason is not far to find. 38. It is, in fact, one of the hundreds of maladies that have crippled the lives and livings of the tea tribes over a very long period of time. But the question is why do the tea tribes suffer from such maladies. The reason is not far to find. It is an open secret the the poverty, illiteracy and unemployment are some of the major problems of the tea tribes in the State of Assam which, in turn, force the tea tribes to live in 21st century with the mindset of people of 17th century who were guided more by superstition than by healthy thoughts and thinking. The drinking and addiction to drugs are two other woes which interfere profoundly the quality of lives enjoyed by the browbeaten section of the society. 39. The result? The result is catastrophic which is why the people from the aforesaid community get killed/maimed/harmed quite frequently, and that too, over some title matters. All these happen despite a large number of beneficial plans/programmes, aimed at ameliorating the conditions of hapless and wretched section of the society, having been initiated by various Governments over the years who claim themselves to be the champions of the poor of the poorest. This is not only unfortunate but too tragic to say the least. 40. We therefore, find it necessary to know if the State Government had ever initiated any measure to educate the people from tea tribes so as to help them to shed off those superstitions, more particularly, the witchcraft which have caused so much of harm to all sections of society, tea tribes in particular and if so, what step/steps it has taken so far. 41. A report in that connection is to be submitted to the Registry of this court within a period of 3 months from the date of receipt of certified copy of this judgment. On the receipt of such report, the matter be placed before this court to take such further action/actions as it may deem fit and proper. 42. Registry is to furnish a copy of the judgment to the Chief Secretary to the Government of Assam within a period of 7 days from today. We deeply appreciate the assistance rendered by Mr. D.M. Choudhury, the Amicus curiae indisposing the present appeal. He be paid Rs. 7,000/- as being his professional fee.