Research › Search › Judgment

Jharkhand High Court · body

2021 DIGILAW 176 (JHR)

State of Jharkhand v. Jaglal Hembrom

2021-02-08

RATNAKER BHENGRA, S.CHANDRASHEKHAR

body2021
JUDGMENT : S. Chandrashekhar, J. 1. About eighteen years back, Bandgaon (Keraikella) P.S. Case No. 34 of 2002 was lodged against eleven persons accused of committing murder of Roto Gagrai and Palo Gagrai in prosecution of the common object. By a judgment dated 28.02.2004, they were acquitted of the criminal charges framed against them. Against the judgment in Sessions Trial No. 16 of 2003, the State filed Acquittal Appeal No. 23 of 2004 and the informant followed by filing Criminal Revision No. 374 of 2004. These matters remained pending for about seven years and in the meantime Passing Gagrai who was absconding faced the trial in Sessions Trial No. 16 of 2008 on a similar charge as was framed against the other accused persons in Sessions Trial No. 16 of 2003. Passing Gagrai was convicted and sentenced for committing the offences under section 302/149 of the Indian Penal Code and section ¾ of the Prevention of Witch (Daain) Practices Act. He preferred an appeal before this Court on 01.03.2011 and by an order dated 21.06.2011, Criminal Appeal (DB) No. 236 of 2011 filed by him was ordered to be listed together with Acquittal Appeal No. 23 of 2004 and Criminal Revision No. 374 of 2004. It was only after Criminal Appeal (DB) No. 236 of 2011 became ripe for hearing according to period of custody of the convicts, the acquittal appeal and criminal revision petition were posted for hearing. Today, as fate would have it, they are traveling towards guillotine. We have penned this note because we feel that the present day system seems to have forgotten plight of such accused acquitted by the trial Court-one of the accused would be reaching the age of 85 years and three have passed away. 2. This is a story of brutal killings of two persons under a delusion that they were practicing witchcraft over the villagers. Budhni Kui (also referred as Gagrai) is the informant of this case. 2. This is a story of brutal killings of two persons under a delusion that they were practicing witchcraft over the villagers. Budhni Kui (also referred as Gagrai) is the informant of this case. On the basis of her fardbeyan which was recorded at 09:00 AM on 27.07.2002, Bandgaon (Keraikella) P.S. Case No. 34 of 2002 was registered under sections 147/148/149/457/302 and 201 of the Indian Penal Code and sections 3/4/5/6 of the Prevention of Witch (Daain) Practices Act, 1999 against Shiva Hembrom, Jaglal Hembrom, Sunil Hembrom @ Sunil Kumar Hembrom, Manki Hembrom, Mungru Gagrai, Kundiya Gagrai, Kande Gagrai @ Tunnu Gagrai, Passing Gagrai, Tikun Gagrai, Sahdev Gagrai and Sukhlal Gagrai. The informant has stated in her fardbeyan that the accused persons armed with lathi, bhala and tangi entered her house early morning at about 04:00 AM and started assaulting her father and mother. They killed them saying that they had caused illness to Madho Hembrom by playing witchcraft over him. She has further stated that the accused persons carried the dead bodies of her parents on a cot to the forest. Immediately after recording of the fardbeyan, Sunil Hembrom @ Rengra Hembrom was arrested and he suffered a disclosure at 14:00 hrs. the same day and on his pointing the dead bodies were recovered from the forest. After the investigation charge-sheet was filed on 24.10.2002 against the above-named accused persons, except Passing Gagrai @ Pako. Badu Ram Kandiyang, Bopna Lohar and Passing Hembrom were also found involved in the occurrence and, accordingly, charges were framed against twelve accused persons under sections 148/149/457/302/201 of the Indian Penal Code and sections 3 & 4 of the Prevention of Witch (Daain) Practices Act, vide order dated 31.03.2003. Badu Ram Kandiyang died immediately thereafter and vide order dated 23.07.2003 the record was split up. The prosecution examined eight witnesses out of whom four were eyewitnesses to prove charges against the accused persons-the informant is PW1. Dr. V.K. Pandit who conducted the postmortem examination on 28.07.2002 has found two penetrating and one sharp cut wound over the dead body of Palo Gagrai. On the same day he has conducted the postmortem examination on the dead body of Roto Gagrai and found two sharp cut injuries and one lacerated wound on his person. 3. Dr. V.K. Pandit who conducted the postmortem examination on 28.07.2002 has found two penetrating and one sharp cut wound over the dead body of Palo Gagrai. On the same day he has conducted the postmortem examination on the dead body of Roto Gagrai and found two sharp cut injuries and one lacerated wound on his person. 3. The doctor has found the following injuries on the dead persons: Palo Gagrai "External Examination: (i) Penetrating wound in the epigastric area 1" x ½" x deep to peritoneal cavity (ii) Penetrating wound at right lower interior chest wall 1" x ½" x deep to peritoneal cavity below right costal margin. (iii) Sharp cut wound 2" x ¾" x deep to right clavicle, (iv) Abrasion on the back right side 2" x 2". Roto Gagrai External Examination: (i) Sharp cutting injury on the left parietal and frontal area of skull 3" x 1" x bone deep leading to brain matter. (ii) Sharp cutting injury on scalp in the occipital area 2 ½ " x ¾*" x bone deep. (iii) Lacerated wound on right lower jaw 1 ½" x ½" x ½" with loss of two teeth of upper jaw. 4. The learned Additional Sessions Judge, Fast Track Court-II, Chaibasa has held that the prosecution could not establish the place where the fardbeyan was recorded; PW2 has described an altogether new case; PW3 and PW4 on their own account are not eyewitnesses, and; recovery of dead bodies at the instance of Passing Hembrom and Sunil Hembrom was doubtful. Finally, the trial Judge has held that the prosecution has miserably failed to establish its case beyond reasonable doubt and the accused persons deserve benefit of doubt. They were acquitted of the charges framed against them in Sessions Trial No. 16 of 2003 vide order dated 31.03.2003. 5. The State is in appeal against the judgment dated 28.02.2004 passed in Sessions Trial No. 16 of 2003 and, as noticed above, the informant has filed Criminal Revision under section 397 read with 401 of the Code of Criminal Procedure. 6. The provisions of the Code of Criminal Procedure, 1973 put no limitation on the powers of Appellate Court in dealing with appeal against acquittal, though as a rule of prudence some restraints have been prescribed. 6. The provisions of the Code of Criminal Procedure, 1973 put no limitation on the powers of Appellate Court in dealing with appeal against acquittal, though as a rule of prudence some restraints have been prescribed. Lord Russell of Killowen1 has written that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice. Since then, "Sheo Swamp" AIR 1934 PC 227 has been followed by the Courts in India. In "Harbans Singh v. State of Punjab" AIR 1962 SC 439 the Hon'ble Supreme Court has observed that before interfering in appeal with an order of acquittal the Court must examine not only the questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower Court that the guilt of the person has not been proved is unreasonable. In yet another case, in "Ghurey Lal v. State of U.P." (2008) 10 SCC 450 the Hon'ble Supreme Court has observed that the Appellate Court in dealing with the cases in which the trial Courts have acquitted the accused should bear in mind that the trial Court's acquittal bolsters the presumption that the accused is innocent. Though the High Court would be entitled to reappreciate the entire evidence independently and come to its own conclusion once the appeal against acquittal is entertained, as we all know, it is also well-settled that the Appellate Court should not ordinarily interfere with a judgment of acquittal in a case where two views are possible even though the trial Court's view may not appear 'more probable one'. As a corollary to this, we may say that even if the Appellate Court believes that there is some evidence pointing the accusing finger towards the accused the order of acquittal recorded by the trial Court cannot be interfered with. We would keep these principles in mind and now examine the prosecution evidence laid during the trial. 7. During the trial, PW1 who is daughter of the deceased has stated in the Court that Mangal Singh Hembrom and Shiva Hembrom dragged her parents outside the house and then all the accused started assaulting them. We would keep these principles in mind and now examine the prosecution evidence laid during the trial. 7. During the trial, PW1 who is daughter of the deceased has stated in the Court that Mangal Singh Hembrom and Shiva Hembrom dragged her parents outside the house and then all the accused started assaulting them. Their dead bodies were taken away by the accused towards forest, which were recovered by the police. She has stated that the house of Passing Hembrom was in front of her house about 30 yards away and the house of PW2 was also nearby. She has further stated that there was dispute between her father and Passing Hembrom over a pathway from her house. PW2 who is brother of Roto Gagrai has stated that on hearing hulla he came out from his house and saw thirteen persons armed with danda, bhujali, tangi and bow & arrow. They broke open the door of the house and dragged "his wife" outside. Mangal Singh Hembrom assaulted her and when his brother intervened to save her the accused assaulted him. In his cross-examination, he has stated that his house is adjacent to the house of his brother just 7-8 hands away, the house of Mangal Singh Hembrom was at a distance of about 20 feet and the house of Passing Hembrom was opposite to his house. PW3 who is son of the deceased has stated that the accused armed with weapons came, broke open the door and dragged out his parents from the house. They killed them and carried their dead bodies to the forest. He has further stated that Madho Hembrom was ill and the accused were suspecting that his mother had played witchcraft on him. In his cross-examination, he has however admitted that he did not tell the police about the dispute over a pathway between his father and Passing Hembrom. The accused killed his parents near the house of Mangal Singh Hembrom which is about 20 yards away from his house and he saw blood at the place of occurrence. PW4 who is wife of PW2 was sleeping in her house and she has witnessed the occurrence standing at her varamdah. She has also stated that the accused came together, dragged out Roto Gagrai and Palo Gagrai from the house and assaulted them near the house of Passing Hembrom and Mangal Singh Hembrom. PW4 who is wife of PW2 was sleeping in her house and she has witnessed the occurrence standing at her varamdah. She has also stated that the accused came together, dragged out Roto Gagrai and Palo Gagrai from the house and assaulted them near the house of Passing Hembrom and Mangal Singh Hembrom. She has also stated that the accused carried the dead bodies to the forest, and that they were suspecting that Roto Gagrai and Palo Gagrai were practicing witchcraft. 8. There is no doubt on presence and participation of the respondents in the occurrence, though the prosecution evidence is quite discrepant in so far as specific role assigned to the accused is concerned. PW1 has stated that Mangal Singh Hembrom was carrying bhujali, Shiva Hemberom bow & arrow, Sukhlal Gagrai and Tikun Gagrai lathi and farsa, and Kandey Gagrai and Sunil Hembrom katari and dabiya-the other accused were carrying lathi. She has further stated that Mangal Singh Hembrom assaulted her parents with bhujali. PW2 has stated about only five respondents who were carrying arms-Sunil Hembrom. Mangal Singh Hembrom, Shiva Hembrom, Tikun Gagrai and Kandey Gagrai. He has stated that Sunil Hembrom inflicted tangi blow on Roto Gagrai and Mangal Singh Hembrom assaulted Palo Gagrai with bhujali. PW3 has spoken about Mangal Singh Gagrai (Hembrom) assaulting his mother with bhujali and PW4 has deposed in the Court that the accused assaulted her sister-in-law and Sunil Hembrom has inflicted axe (kulhari) blows upon Roto Gagrai. 9. Even then, the trial Court has rejected the testimony of the eyewitnesses throwing overboard the prosecution case upon some very trifling and insignificant matters like positioning of the witnesses at the time of occurrence, discrepancies in describing the weapon held by the accused and one of the witnesses calling the deceased his wife, completely forgetting fundamental rules that minor inconsistencies, discrepancies, exaggeration etc. which do not affect the core of the prosecution case should be kept aside. 10. For better appreciation of the case, we would extract some portions from paragraph 15 of the judgment which read as under: "Going though the fardbeyan (Ext. 4) it appears that fardbeyan was recorded at Keraikella police station on 27.07.2002 at about 09:00 hours whereas PW1 has stated in her examination-in-chief in para 7 that police came at about 10:00 AM and thereafter she gave her statement in 'Ho' language. 4) it appears that fardbeyan was recorded at Keraikella police station on 27.07.2002 at about 09:00 hours whereas PW1 has stated in her examination-in-chief in para 7 that police came at about 10:00 AM and thereafter she gave her statement in 'Ho' language. She also stated in the same para that Kishor had informed at the police station at about 04:00 AM. The Investigating Officer, PW8 in para 1 has stated that on 27.07.2002 at about 09:00 Hrs. informant Budhni Gagrai came at the police station and informed about the murder of her mother and father. S.D. Entry was made on the basis of her information and her fardbeyan was recorded at the police station. Therefore, the place of recording of fardbeyan has not been established by the prosecution. As regard the genesis and manner of occurrence, fardbeyan goes to reveal that the informant has narrated in the fardbeyan that the accused persons Shiva Hembrom, Jaglal Hembrom, Sunil Hembrom @ Rengra, Manki Gagrai, Kundiya Gagrai, Kandey Gagrai, Passing Gagrai, Mungru Gagrai, Tikun Gagrai, Sahdev Gagrai and Sukhlal Gagrai armed with lathi, Bhala and Tangi entered into the house and started saying that Roto Gagrai had played witch on Madho and caused his ailment, they would not spare him and the accused persons caught hold of Roto Gagrai and started assaulting with lathi, Danda and Tangi. It is also disclosed that when informant's mother went to rescue Roto Gagrai, the accused persons also assaulted her as the result of assault, mother and father of the informant died. This is suggestive of the fact that the father of the informant was first assaulted by all the accused persons inside the house and after that her mother went to rescue then assaulted by all the accused persons inside the house whereas PW1 has stated in her examination-in-chief in para 2 that the accused persons came at the house of informant and Sunil and Tikun had broken the door of the house and entered inside the house thereafter, Mangal Singh Hembrom and Shiva Hembrom dragged her father and mother out from the house and Mangal Singh Hembrom assaulted with Bhujali. She further added that all the accused persons conjointly assaulted her mother and father by Tangi and both died. She further added that all the accused persons conjointly assaulted her mother and father by Tangi and both died. In para 2, PW1 introduced a new name in the accused Mangal Singh Hembrom and attributed that Mangal Singh Hembrom assaulted with Bhujali whereas Mangal Singh Hembrom has not been named in her earlier statement, fardbeyan (Ext. 4). In para 2, she stated that she was present inside the house with her brother and sister Kundiya, Pote Mumya and others at the time of occurrence. PW2 has stated in his examination-in-chief in para 1 that on the day of occurrence, at about 04:00 AM, the accused persons have named by PW 1 and Passing Hembrom and Shiva Hembrom had come to the house of the informant armed with Danda, Bhala, Bhujali, bow and arrow and tangi. He further added in para 2 a new case that after breaking the door, Mangal Singh Hembrom dragged his wife out and assaulted with Bhujali and when his brother came to rescue then all the accused persons caught hold him and Sunil assaulted with Tangi to him and both as the result of assault died. PW2 in his examination-in-chief again repeated the fact by saying that "Yahi Log Ekmat Hokar Hamari Patni Tatha Bhai Ki Hatya Kar Diya". PW2 has been projected as an eyewitness of the alleged occurrence by the prosecution. His statement introduced a new prosecution case that as the result of assault, his wife was died whereas his wife has been examined by the prosecution in this case as PW4, Chando Kui. The statement of PW2 itself is suggestive of the fact that his presence at the spot of the alleged occurrence is doubtful and he is a rank lier and no reliance can be placed on his evidence. PW2 has also disclosed regarding the place of occurrence in para 6 that the occurrence took place in the Baramdah of Mangal Singh, in this way, he shifted the place of occurrence inside the house of the informant to Baramdah of Mangal Singh. PW4 has stated that after breaking door of the house of the informant, the accused persons dragged Palo Kui and Roto Gagrai out and took them in between the house of Passing Hembrom and Mangal Singh Hembrom. PW4 has stated that after breaking door of the house of the informant, the accused persons dragged Palo Kui and Roto Gagrai out and took them in between the house of Passing Hembrom and Mangal Singh Hembrom. She did not name the person, who assaulted Palo Kui with Bhujali but she stated that Roto Gagrai was assaulted by Sunil with axe and both died. In para 5, she stated the location of the house of the Passing Hembrom and Mangal Singh Hembrom. She stated that the house of Mangal Singh is situated north to the house of Passing Hembrom and her house is situated south to the house of Passing Hembrom. It means, the house of Passing Hembrom is situated in between the house of PW4 and Mangal Singh. Her statement regarding witnessing occurrence is unnatural because of the fact that she stated that Roto Gagrai and Palo Kui were carried in between the house of Passing Hembrom and Mangal Singh Hembrom. Therefore, her evidences also untruthful and unreliable. PW 8 I.O. has stated in his cross-examination at page 5 that he did not find the broken door at the house of Roto Gagrai. This is suggestive of the fact that the statement of PW1 regarding the genesis is also uncorroborated by the evidence of PW8 rather her statement is contradictory to the statement of PW8. PW8 has stated at page 2 the first P.O. of this case is as the house of Roto Gagrai. This is also suggestive of the fact that the alleged occurrence of assault was taken place inside the house of Roto Gagrai. Therefore, it appears that there is contradiction regarding the place of occurrence in the evidence of the prosecution witnesses. PW3, Santosh Gagrai who is son of Roto Gagrai, has been examined by the prosecution, who has stated in his examination-in-chief the name of Gugun Kamar and Passing Hembrom and stated that the accused persons came at his house armed with weapons. They had broken the door and dragged his mother Dogo Gagrai and his father Roto Gagrai out. He added that Mangal Gagrai had assaulted his mother with Bhujali and when his father went to rescue her, the accused persons dragged him and assaulted and as the result of assault, both died there. In this way, he added a new name Gugun Kamar and Passing Hembrom as accused. He added that Mangal Gagrai had assaulted his mother with Bhujali and when his father went to rescue her, the accused persons dragged him and assaulted and as the result of assault, both died there. In this way, he added a new name Gugun Kamar and Passing Hembrom as accused. In his cross-examination, he stated that police had not carried the broken door and he also admitted that there is enmity between Sunil Hembrom and his father regarding Rasta........" 11. The eyewitnesses are closely and intimately related to Roto Gagrai and Palo Gagrai and they are stated to be inimically deposed towards the accused. A witness may be closely related to the victim or inimical to the accused but on that ground his testimony cannot be treated as tainted. When a crime is committed in the circumstances as described by the witnesses in the present case the family members are the natural and competent witnesses. There is no bar in law in examining an inimical, interested or related witness. In "Masalti v. State of U.P." AIR 1965 SC 202 the Hon'ble Supreme Court has cautioned that mechanical rejection of evidence of partisan or interested witnesses on the sole ground that it is partisan would invariably lead to failure of justice. In "Sucha Singh and Another v. State of Punjab" (2003) 7 SCC 643 the Hon'ble Supreme Court has held that relationship is not a factor to affect credibility of a witness, for it is more often that the relatives would not conceal the actual culprit and make allegation against an innocent person. A cursory look at the judgments referred to by the learned counsels reveals the unanimous judicial opinion that testimony of the related witnesses cannot be disbelieved on the ground of relationship. We would however keep in mind the requirement in law that their testimony is required to be examined with caution. As regards reliability of the evidence of PW3 who was of tender age at the time of occurrence, we would simply say that section 118 of the Indian Evidence Act is a complete answer to the plea raised on behalf of the accused-by reason of tender age a witness is not rendered incompetent to give evidence. We have noticed from the deposition of PW3 that considering his tender age the learned trial Judge put questions to him to ascertain his maturity to depose in the Court. We have noticed from the deposition of PW3 that considering his tender age the learned trial Judge put questions to him to ascertain his maturity to depose in the Court. The age of a child is definitely a relevant factor, for a child of tender age may be swayed away by what others may tell him, but there is no trace of tutoring in the testimony of PW3. 12. The evidence of the informant in the Court was tested by the defence with reference to her fardbeyan and it was argued that there are serious inconsistencies in the manner of occurrence described by her, such as, whether the occurrence has taken place inside the house or near the house of Mangal Singh Hembrom, and whether her father was assaulted first or the mother. In the fardbeyan, PW1 has stated that the accused started assaulting her parents inside the house. But in the Court she has stated that the accused dragged her parents outside and assaulted them. She has further stated that the house of Passing Hembrom is about 30 yards north of her house. PW2, PW3 and PW4 have stated that Roto Gagrai and Palo Gagrai were assaulted near sahan of the house of Mangal Singh Hembrom and some of them have also stated that near sahan of their house the accused started marpit. A close examination of the testimony of these witnesses gives an impression that similar questions in different forms were put to the prosecution witnesses to confuse them and the answers elicited from them are projected as contradictions in their testimony. The relevance of the place of occurrence in a criminal case is for more than one reason. In order to establish presence of the witnesses at the time and place of occurrence the prosecution is required to prove the place of occurrence. A defence may be set up by the accused that the elevation or boundaries of the place of occurrence was such that it was impossible for the witnesses to have seen the occurrence. The prosecution witnesses are inmates of the house and the incident occurred at around 04:00 AM. The presence of the prosecution witnesses in their house in the wee hours of 27.07.2002 cannot be doubted. They are the competent witnesses who can tell the Court what had happened there. The prosecution witnesses are inmates of the house and the incident occurred at around 04:00 AM. The presence of the prosecution witnesses in their house in the wee hours of 27.07.2002 cannot be doubted. They are the competent witnesses who can tell the Court what had happened there. In the incident twelve accused were involved and Roto Gagrai and Palo Gagrai have received several injuries. The informant has stated that the accused stormed the house and caught hold of her parents. PW2, PW3 and PW4 have stated that the accused dragged Palo Gagrai and Roto Gagrai outside the house and attacked them. The entire episode must have continued for some time and the witnesses had sufficient time to identify the accused. In these facts a little difference in the place of occurrence is immaterial. The geographic location of the house of Palo Gagrai and Mangal Singh Hembrom or Passing Hembrom was immaterial and statement of the informant that she hid inside the room would not cloud her stand that she is an eyewitness-she has seen the accused in the house. In "Gaya Yadav v. State of Bihar" (2003) 9 SCC 122 the victim was killed near a Kahua tree and his dead body was recovered from a nearby place. The witnesses had seen the accused carrying the dead body and blood stains were found at both the places. In the First Information Report there was no mention about assault near a Kahua tree. The Hon'ble Supreme Court has held that absence of blood trails between the two places and non-mentioning of the Kahua tree in the First Information Report were not enough to doubt the place of occurrence. 13. The informant has stated in the cross-examination that it was a dark cloudy night and difficult to see nearby objects. This evidence has been pressed by the respondents out of proportion to contend that it was impossible for the informant to identify the accused. In the first place, the respondents are co-villagers and many of them were residing in the near vicinity. PW2 and PW3 have deposed in the Court that there was electricity in the house-PW2 is specific that in the night the electric light was put on in the house. In the first place, the respondents are co-villagers and many of them were residing in the near vicinity. PW2 and PW3 have deposed in the Court that there was electricity in the house-PW2 is specific that in the night the electric light was put on in the house. After eliciting from the informant that the night was so dark and cloudy that it was difficult to see nearby objects the defence has stopped her examination on this point. A suggestion whether there was sufficient light to identify the accused was not put to her. The occurrence has taken place at around 04:00-04:30 AM in the month of July when sun rises between 05:49 AM to 05:58 AM and it is common knowledge that dawn breaks about half an hour before sunrise. The statement of the informant that it was a dark night obviously did not refer to the time of occurrence. 14. The learned trial Judge has found the fardbeyan suspicious on the ground that the place where statement of Budhni Kui was recorded by the investigating officer was not proved by the prosecution. 15. A First Information Report contains the earliest information received in relation to the commission of a cognizable offence and its utility during the trial is well established. A First Information Report is not a substantive piece of evidence, it may not contain the minute details of the occurrence, it may also not contain name of all accused persons; and what would be the effect of such omissions is a matter for appreciation of evidence. In the present case, the defence has failed to demonstrate that statement of Budhni Kui in the Court was so dramatically opposite to her fardbeyan, or that there was such delay in lodging the report that leads to an inference that the accused persons were implicated in this case after due deliberations. 16. The statement of Budhni Kui in the Court that at about 10:00 AM the police came in the village when she gave her statement is the main reason to doubt the place where the fardbeyan was recorded. The fardbeyan of Budhni Kui which was laid in evidence, duly proved and marked as Exhibit-4 in the trial records that statement of Budhni Kui was recorded by Ratibhan Singh, officer-in-charge of Keraikella PS at 09:00 AM on 27.07.2002 in the police station. The fardbeyan of Budhni Kui which was laid in evidence, duly proved and marked as Exhibit-4 in the trial records that statement of Budhni Kui was recorded by Ratibhan Singh, officer-in-charge of Keraikella PS at 09:00 AM on 27.07.2002 in the police station. The investigating officer has deposed in the Court that at about 09:00 AM Budhni Gagrai (Budhni Kui) came to the police station and gave information about murder of her father and mother. The information was duly recorded in station diary and her statement in "Ho" language was translated by Kishor Gagrai and reduced into writing as her fardbeyan. He has further stated that the fardbeyan was read over to Budhni Kui by Kishor Gagrai in her language and having understood the same she put her thumb impression (L.T.I). In the Court, the informant has owned her fardbeyan. PW2, Kishor Gagrai has deposed in the Court that he had gone to the police station to lodge information about the occurrence and at that time Budhni Kui was also with him. From the records, we find that the investigating officer reached village Bangrasai at about 10:00 AM and as stated by Budhni Kui her statement was recorded by the police. The statement of Budhni Kui appearing in paragraph no. 7 of her cross-examination apparently has reference to her "restatement" recorded by the investigating officer under section 161 of the Code of Criminal Procedure, and not about her fardbeyan. In her cross-examination, she was put a suggestion (in paragraph no. 9) that she did not tell the police about involvement of Passing Hembrom to which she has stated that on both occasions she did tell name of Passing Hembrom to the police ¼nksuksa ckj cksyh Fkh½ . Her statement in paragraph no. 9 reaffirms that her "restatement" was taken by the investigating officer, which is a normal procedure adopted by every investigating officer upon taking charge of the investigation. One sentence in the statement of Budhni Kui-and, which at the first glance does not suggest the question put to her as her evidence was not recorded in question-answer form as is being done in most of the trial Courts; was picked up by the learned trial Judge to find a chink in the prosecution case. That is not the way how evidence of a witness can be appreciated. That is not the way how evidence of a witness can be appreciated. The evidence must be read as a whole and the Court should endeavour to harmonize statements of a witness which may sometimes appear to be inconsistent, in the process minor abrasions should be ignored. The truthfulness of a witness and quality of his evidence are affected when the witness seriously crumbles and is unable to weather the test of cross-examination, or, when he improves or omits or exaggerates from his previous statement to such an extent that his evidence in the Court becomes "contradictory". 17. A witness may not possess a photogenic memory and it may so happen that he may not say everything about the occurrence before the police or in the Court. The testimony of a witness is not decided by any mathematical tool and insistence upon precision in his evidence would be an impractical approach. A witness may seem to have given exaggerated version of the occurrence or he may say something which compared to testimony of other witnesses may appear inconsistent. But, it is not every inconsistency, omission or exaggeration in the evidence of a witness which may amount to contradiction. The explanation to section 162 of the Code of Criminal procedure indicates that an omission to state a fact or circumstance by a witness in his previous statement may amount to contradiction, but only if the same appears to be significant or otherwise relevant-whether any omission amounts to contradiction in the particular context is a question of fact. Burn, J.2 has said that 'omission' and 'contradiction' can never be identical. "Tahsildar Singh"3 has put all doubts to rest and held that all omissions are not contradictions. In "Sakhawat v. Crown" ILR (1937) Nag. 227 it was observed that contradiction means the setting up of one statement against another and not the setting up of a statement against nothing at all. In "State of Rajasthan v. Rajendra Singh" (2009) 11 SCC 106 the witness stated in the Court about snatching of gun from the accused and he was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. The Hon'ble Supreme Court has held that omission on the part of the witness on such a vital point has to be treated as a contradiction and it creates a serious doubt about truthfulness of his version. The Hon'ble Supreme Court has held that omission on the part of the witness on such a vital point has to be treated as a contradiction and it creates a serious doubt about truthfulness of his version. The inconsistency sought to be projected by the prosecution in testimony of Budhni Kui is a figment of imagination and not real. 18. Still further, the prosecution story was doubted also on the ground that the investigating officer has not found broken door in the house of deceased. In dealing with the merits of this contention, we have closely examined evidence of the prosecution witnesses and find that there is one simple fact in the prosecution evidence which was missed out by the learned trial Judge. It is true that the prosecution witnesses have spoken about the respondents breaking the door and no broken door was found by the investigating officer, but the doubt is removed when we look at the testimony of PW1 and PW3 who were sleeping in the house when the accused stormed the house. They have stated in the cross-examination that latch of the door was broken. The witnesses are villagers, they hail from tribal areas and they are "Ho" speaking witnesses. When they said that the accused broke open the door of the house they did not mean that the door itself was broken. Furthermore, the learned trial Judge has erroneously held that PW2 has projected a new case because he referred to the woman who was killed as his wife. The wife of PW2 was examined as PW4 and she has stated in her evidence that Roto Gagrai was her elder brother-in-law. The discrepancy in the name of Palo Gagrai (Doge Gagrai as spoken by PW3) and PW2 calling her his wife are mistakes of the Public Prosecutor who could have re-examined the witness and sought clarification. This may also be a typing error or a mistake in recording the evidence-there are few other mistakes in the names. A significant statement in the testimony of PW2 is that he clearly says about the occurrence taking place in the house of Roto Gagrai, his brother, and not in his house. The fact is that the woman who was killed in the occurrence was Palo Gagrai wife of Roto Gagrai, both parents of PW1 and PW3. A significant statement in the testimony of PW2 is that he clearly says about the occurrence taking place in the house of Roto Gagrai, his brother, and not in his house. The fact is that the woman who was killed in the occurrence was Palo Gagrai wife of Roto Gagrai, both parents of PW1 and PW3. The postmortem report records name of Palo Gagrai and other details about her and during the trial identity of the dead persons was not challenged by the defence. 19. The recovery of dead bodies at the instance of Sunil Hembrom was disbelieved by the learned trial Judge. In the judgment under challenge, the discussion in this regard has proceeded in the following manner: ".........."PW5 and PW6 are the witnesses of inquest. PW5 has proved (Ext. 1) and (Ext. 2) on the inquest report and PW6 respectively proved (Ext. 1/1) and (Ext. 2/1). PW5 has stated in his examination-in-chief that Passing Hembrom and Sunil Hembrom were also present at the time when dead body was taken out from the pond but at the same time, he stated that he reached at the spot from where the dead body was recovered after taking out the dead body. Therefore, his statement is unreliable regarding the presence of Passing Hembrom and Sunil Hembrom at the time of taking out the dead bodies. The evidence of PW5 becomes doubtful. PW7 Dr. B.K. Pandit has conducted the postmortem examination on the dead body of Palo Kui and Roto Gagrai and he also found the antemortem injuries on the person of deceased and he proved the postmortem reports respectively (Ext. 3) and (Ext. 3/1). He found rigor-mortise in passing stage and decomposition started over the body of the deceased. PW8 had proved certain prosecution documents such as fardbeyan (Ext. 4), forwarding on the fardbeyan (Ext. 4/1), endorsement on the fardbeyan (Ext. 4/2), formal FIR. (Ext. 5), confessional statement of accused Sunil Hembrom (Ext. 6), inquest reports (Ext. 7) and (Ext. 7/1). It was submitted by the learned A.P.P. that the dead body of the deceased persons were recovered on the basis of confessional statement (Ext. 6) of accused Sunil Hembrom and also in presence of him but the perusal of inquest report (Ext. 7) and (Ext. 6), inquest reports (Ext. 7) and (Ext. 7/1). It was submitted by the learned A.P.P. that the dead body of the deceased persons were recovered on the basis of confessional statement (Ext. 6) of accused Sunil Hembrom and also in presence of him but the perusal of inquest report (Ext. 7) and (Ext. 7/1), it appears that the inquest reports do not bear any endorsement to the effect that the dead bodies were recovered on the basis of the disclosure made by accused Sunil Hembrom. nor it appears the signature of the accused, Sunil Hembrom. What prevented I.O. to take the signature of accused Sunil Hembrom on the inquest reports and also making an endorsement to the affect that the dead bodies were recovered on the basis of disclosure made by Sunil Hemborm. Under this circumstance, I disagree with the submission of the learned A.P.P. There is no legal evidence nor there is any cogent circumstance to show that the dead body of the deceased were taken by the accused persons to the Sadankocha Jungle............." 20. To prove that the dead bodies of Roto Gagrai and Palo Gagrai were recovered at the pointing of Passing Hembrom and Sunil Hembrom, the prosecution has produced Nazir Gagrai and Sukhdev Bodra as witnesses. During the trial they have identified their signatures over the inquest report and seizure-memo. PW5, Nazir Gagrai has stated that Passing Hembrom and Sunil Hembrom were present when the dead bodies were found in the forest. He has further stated that the dead bodies were recovered by the police after he had reached the forest. PW6, Sukhdeo Bodra is Munda of the village Persa Bahal. He has also stated that the dead bodies of Roto Gagrai and Palo Gagrai were recovered by the police in the forest. He has also identified his signature on the inquest reports. In the cross-examination these witnesses stated that they did not know what was written in the inquest report and PW5 has stated that he put his signature on a blank paper. The aforesaid statements of PW5 and PW6 in their cross-examination would in no way challenge the prosecution case that at the instance of Sunil Hembrom the dead bodies were recovered. The prosecution evidence is that the dead bodies were found in a ditch which was covered by stone. The aforesaid statements of PW5 and PW6 in their cross-examination would in no way challenge the prosecution case that at the instance of Sunil Hembrom the dead bodies were recovered. The prosecution evidence is that the dead bodies were found in a ditch which was covered by stone. Passing Hembrom and Sunil Hembrom were present there when the dead bodies were recovered and this part of evidence of PW5 has remained unchallenged. A plea was raised that in the inquest it is not recorded that the dead bodies were recovered at the instance of the accused. In our opinion, there is no requirement in law to make such observation in the inquest report. The object behind conducting the inquest is to ascertain whether a person has died under suspicious circumstance or an unnatural death and, if so, what is the apparent cause of death. The investigating officer has tendered evidence on recovery of the dead bodies and he has clearly stated that Sunil Hembrom suffered a disclosure statement and told him that he can show the place where the dead bodies were concealed. The confessional statement of Sunil Hembrom vide Exhibit-6 was proved by the investigating officer. He has specifically stated that as said by the accused (kahne anusar), two dead bodies were found in Sadan Kocha forest covered with stone. He has further stated that the place from where the dead bodies were recovered was shown by Sunil Hembrom. To perceive evidence of the police witnesses with initial doubt is an archaic notion4 and evidence of the investigating officer that the accused has made confessional statement and at his pointing the dead bodies were recovered are substantive piece of evidence-though, major part of the evidence of the investigating officer would be hearsay. In the above facts, it must be held that the dead bodies of Roto Gagrai and Palso Gagrai were recovered at pointing of Sunil Hembrom. 21. Section 27 of the Indian Evidence Act which partially lifts the ban imposed by sections 25 and 26 makes admissible in evidence so much of the information whether it amounts to confession or not which relates distinctly to the fact discovered in consequence of the information provided by the accused while in custody. 21. Section 27 of the Indian Evidence Act which partially lifts the ban imposed by sections 25 and 26 makes admissible in evidence so much of the information whether it amounts to confession or not which relates distinctly to the fact discovered in consequence of the information provided by the accused while in custody. In his confessional statements before the investigating officer Sunil Hembrom has said that he can take him to the place where the dead bodies were concealed and get those recovered. The recovery of the dead bodies from a ditch covered by stone inside the forest at the instance of Sunil Hembrom lends assurance to the credibility of his statement made before the investigating officer. The place where the dead bodies were concealed became known to the investigating officer for the first time from the disclosure of Sunil Hembrom and, therefore, it would fall under the expression 'fact discovered' under section 27 of the Indian Evidence Act. The confessional statement vide Exhibit-6 and recovery of the dead bodies at the instance of Sunil Hembrom are highly incriminating materials against him, but he has failed to offer any explanation how he could know that the dead bodies were thrown in a ditch covered by stone inside the forest. He was part of the unlawful assembly which forced inside the house of the deceased and it is the prosecution evidence that after committing murder of Roto Gagrai and Palo Gagrai the accused carried their dead bodies on a cot towards the forest. The confessional statement of Sunil Hembrom and recovery of the dead bodies at his instance from the forest are in tune with the prosecution story. In "Lachman Singh v. The State" AIR 1952 SC 167 the statement made by the accused that the dead body was thrown into a river was challenged by the defence on the ground that this was too broad a statement to lead to any discovery. The Hon'ble Supreme Court held that the accused had led the police to the spot where the dead body was thrown and therefore disclosure statement of the accused was admissible. 22. The admission of guilt, that is, confession as evidence in a criminal trial has always occupied an important place-it is said that the use of confession in law was not earlier than Tudors and Stuarts. 22. The admission of guilt, that is, confession as evidence in a criminal trial has always occupied an important place-it is said that the use of confession in law was not earlier than Tudors and Stuarts. The Latin phrase "optimum habemus testem confitentem reum" which means "we have the best witness, a confessing defendant" was the guiding thought. The first full and clear expression of the rule appeared in "The King v. Waricksha U" (1783), 1 Leach 263. Cave J. has said in "The Queen v. Thompson" (1893), 17 Cox's Criminal Cases 641; ".......By that law, to be admissible, a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible....." 23. "Ibrahim v. The King" (1914) A.C. 599 was a case from India before the Privy Council. In the judgment, Lord Sumner has made the following noteworthy statement of law; "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale." 24. Sunil Hembrom has admitted that he was arrested by the police but denied that he made any disclosure statement. At no point in time he retracted his confessional statement and complained to the Court that his confession was extracted by force. Soon after his arrest the dead bodies were recovered from a ditch inside the forest and PW5 has affirmed that Passing Hembrom and Sunil Hembrom were present there. There is nothing on record even to suggest that the confessional statement of Sunil Hembrom was extracted by force or coersion. 25. Since beginning, the judgment under challenge has proceeded on wrong and assumed factual premises and the result is apparent. 26. The prosecution has introduced evidence that son of Passing Hembrom was unwell since last two months preceding the date of occurrence. 25. Since beginning, the judgment under challenge has proceeded on wrong and assumed factual premises and the result is apparent. 26. The prosecution has introduced evidence that son of Passing Hembrom was unwell since last two months preceding the date of occurrence. Gugnu Lohar was called for his treatment and he said that Roto Gagrai has played witchcraft on him and that was the reason the accused attacked and killed Roto Gagrai and Palo Gagrai. PW1, PW2, PW3 and PW4 have said that Madho Hembrom who was son of Passing Hembrom was ill, a local doctor (ojha) was called and he performed puja in the house of Passing Hembrom. In the cross-examination of PW3 the defence has elicited from him that it is difficult to observe activities in the house of Passing Hembrom from his house, and PW1 has stated that Roto Gagrai had a dispute with Passing Hembrom for a pathway (rasta). It was therefore contended that the prosecution has not proved motive and the respondents were implicated due to past animosity. But we are unable to put enmity on so higher a pedestal to ignore ocular evidence. Motive may be a circumstance relevant for assessing the evidence but the prosecution case is not weakened even if the motive is not very strong. In a case where there is clear proof of motive for the commission of the crime it adds support to ocular evidence and as regards past enmity it is well remembered that enmity cuts both ways. The motive for a crime may be known to the assailant alone and as observed by the Hon'ble Supreme Court in "Suresh Chandra Bahri v. State of Bihar" 1995 Supl (1) SCC 80; "25........it all depends as to how a person reacts in a given circumstance and it is he alone who best knows his intention and motive to commit a crime and the extent thereof ....". The dispute over a pathway was a personal dispute with Passing Hembrom. For that reason such large number of persons would not have gathered together to kill Roto Gagrai and Palo Gagrai. The superstition about witchcraft has affected the minds of people in the rural areas of this part of the country so deeply that a special enactment in the form of Prevention of Witch (Daain) Practices Act, 1999 was brought to control this malaise. The superstition about witchcraft has affected the minds of people in the rural areas of this part of the country so deeply that a special enactment in the form of Prevention of Witch (Daain) Practices Act, 1999 was brought to control this malaise. There seems intrinsic truthfulness in the prosecution story that the accused persons had formed an unlawful assembly with common object to attack the perceived evil, that is, Roto Gagrai and Palo Gagrai. 27. Mr. Sheo Kumar Singh, the learned counsel for the respondents has raised a substantial point that the accused were not told clearly what charges they have to answer. 28. The following charges were framed against the respondents: "First-That you, on or about the 23rd Day of July, 2002 at 04:00 AM at village-Bugrasai, P.S.-Karaikella, District-Singhbhum (West) along with others were a member of an unlawful assembly and were, at that time, armed with a deadly weapon with 'Lathi', Bhala and Tangi, used as a weapon of offence, was likely to cause death, and in prosecution of common object of that assembly committed the offence of rioting with the said offence and thereby committed an offence punishable under section 148 of the Indian Penal Code, and within my cognizance. Secondly-That you, on or about the same day same time and same place, were also a member of an unlawful assembly, one of the members of which, committed the offence of murder in prosecution of common object of that assembly to commit murder as a member of that assembly, new to be, likely to be committed in prosecution of common object and you being a member of the said unlawful assembly, at the time of committing that offence, are guilty of that offence, punishable under section 149 of the Indian Penal Code. Thirdly-That you, on the same day, same time and same place, committed lurking house trespass by night by entering into the house belonging to informant Budhni Gagrai and used a human dwelling, after sunset and before sun-rise, in order to commit the offence of murder and thereby committed an offence punishable u/s. 457 of the Indian Penal Code. Fourthly-That you, on the same day, same time and same place, committed murder by intentionally causing the death of Roto Gagrai and thereby committed an offence punishable u/s. 302 of the Indian Penal Code. Fourthly-That you, on the same day, same time and same place, committed murder by intentionally causing the death of Roto Gagrai and thereby committed an offence punishable u/s. 302 of the Indian Penal Code. Fifthly-That, on the same day and same time knowing or having reason to believe that an offence committed by you and you caused the evidences of said offence to disappear and conceal, which is punishable u/s. 201 of the Indian Penal Code. Sixthly-That you, on the same day and same place, identified Roto Gagrai as 'Witch' by saying words and by action and thereby committed an offence punishable u/s. 3 of the Prevention of Witch (Daain) Practices Act. Seventhly-That you. on the same day and same place, committed murder of Roto Gagrai by identifying her as a 'Witch' deliberately and thereby committed an offence u/s. 4 of the Prevention of Witch (Daain) Practices Act. and I hereby direct that you be tried by this Court on the said charges. Content of the charges were framed read-over to the accused in Hindi, to which, they pleaded not guilty and claimed to be tried." 29. There are atleast two defects in the order framing charge. The indictment on second count is for the offence under section 149 of the Indian Penal Code and it says, "that you ...... were also member of an unlawful assembly, one of the members of which, committed the offence of murder in prosecution of common object......". The fourth indictment was for committing the offence under section 302 of the Indian Penal Code, but it refers to the death of Roto Gagrai only. 30. A charge is the first important step in a Sessions Trial and there is no doubt that the accused must know and understand what he is being tried for. In "Willie (William) Slaney v. State of M.P." AIR 1956 SC 116 the Hon'ble Supreme Court has elucidated the law on any defect, irregularity or illegality in framing the charge. Taking reference of the statutory illustration (e) to section 213 (section 223 mention in the old Code) of the Code of Criminal Procedure it was observed that when the case is one of murder, the accused is not entitled to be told in the charge how it was committed, whether with a pistol or a lathi or a sword. Taking reference of the statutory illustration (e) to section 213 (section 223 mention in the old Code) of the Code of Criminal Procedure it was observed that when the case is one of murder, the accused is not entitled to be told in the charge how it was committed, whether with a pistol or a lathi or a sword. In "Begu v. King-Emperor" ILR (1925)6 Lah 226 the Privy Council has held that a man can be convicted for an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. When the witnesses are examined and from their cross-examination it appears that the accused knew the indictment and his examination under section 313 of the Code of Criminal Procedure was fair enough, as observed in "Willie (William) Slaney" AIR 1956 SC 116 it can be reasonably inferred that he was not under any illusion. In the present case, there is some defect in the charge but the accused cannot plead that they were misled during the trial. The accused were told that they used lathi, bhala, tangi etc. as the weapon of offence, and they formed unlawful assembly object of which was to commit rioting, house trespass by night and murder. The accused were represented through their lawyers, the witnesses were fully cross-examined and they were put to notice that they have killed two persons. The trial was fair and defect in the charge was not such as to cause miscarriage of justice. The prosecution witnesses were not cross-examined on vital aspects of the case, such as, their presence at the time of occurrence and identification of the respondents. Their testimony has remained intact in major parts and, as noted above, they were aware that they were facing the trial for killing two persons. In their examination under section 313 of the Code of Criminal Procedure, their attention was drawn to forming of unlawful assembly; illness of Madho Hembrom; Roto Gagrai being brandised by them as Daain, and; assault upon them by lathi-danda, tangi etc.-but they have remained silent and offered no explanation to the incriminating facts proved by the prosecution. 31. In their examination under section 313 of the Code of Criminal Procedure, their attention was drawn to forming of unlawful assembly; illness of Madho Hembrom; Roto Gagrai being brandised by them as Daain, and; assault upon them by lathi-danda, tangi etc.-but they have remained silent and offered no explanation to the incriminating facts proved by the prosecution. 31. In our opinion, the judgment in Sessions Trial No. 16 of 2003 is perverse, it is based on wrong assumption of facts de hors the clear and clinching evidence of prosecution witnesses, and approach of the learned trial Judge was patently erroneous. On the prosecution evidence no two views are possible and there can be one and only one view that the respondents are guilty. In "Shivaji Sahabrao Bobade v. State of Maharashtra" (1973) 2 SCC 793 the Hon'ble Supreme Court has cautioned that the excessive solitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. In "Khem Karan v. State of U.P." (1974) 4 SCC 603 the Hon'ble Supreme Court has observed that, "neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. 32. The aforesaid discussions leave no option to the Court except to set-aside the judgment dated 28.02.2004 passed in Sessions Trial No. 16 of 2003 and, accordingly, the judgment of acquittal of the respondent no. 1-Jaglal Hembrom, respondent no. 4-Passing Hembrom, respondent no. 5-Sunil Hembrom @ Sunil Kumar Hembrom, respondent no. 6-Manki Hembrom, respondent no. 7-Mungru Gagrai, respondent no. 8-Tikun Gagrai, respondent no. 10-Kundiya Gagrai and respondent no. 11-Sahedev Gagrai in Acquittal Appeal No. 23 of 2004 is set-aside. 33. Resultantly, Criminal Revision No. 374 of 2004 is also allowed, but only with respect to the opposite parties/respondent no. 2-Jaglal Hembrom, respondent no. 5-Passing Hembrom, respondent no. 6-Sunil Hembrom @ Sunil Kumar Hembrom, respondent no. 7-Manki Hembrom, respondent no. 8-Mungru Gagrai, respondent no. 9-Tikun Gagrai, respondent no. 11-Kundiya Gagrai and respondent no. 12-Sahedev Gagrai therein. 34. Mr. Sheo Kumar Singh, the learned counsel for the respondents has argued that there is no material to support the accusation that Roto Gagrai and Palo Gagrai were killed in prosecution of common object of the unlawful assembly. 35. 7-Manki Hembrom, respondent no. 8-Mungru Gagrai, respondent no. 9-Tikun Gagrai, respondent no. 11-Kundiya Gagrai and respondent no. 12-Sahedev Gagrai therein. 34. Mr. Sheo Kumar Singh, the learned counsel for the respondents has argued that there is no material to support the accusation that Roto Gagrai and Palo Gagrai were killed in prosecution of common object of the unlawful assembly. 35. We would first refer to few judgments on the subject before examining the evidence on this point to find out common object of the unlawful assembly. 36. Straight J.5 has stated that: "S. 149 of the Penal Code, 1860 declares in substance that every member of an unlawful assembly is responsible for an offence committed by another member, or the other members, in prosecution of the common object of such assembly, or one which he must have known was reasonably likely to be committed in the prosecution of such common object. In other words, this provision, so to speak, takes him out of the region of abetment, and makes him responsible as a principal for the acts of each, and all, merely because he is a member of the unlawful assembly." 37. In "Musa Khan v. State of Maharashtra" (1977) 1 SCC 733 the Hon'ble Supreme Court has also struck a note of caution and observed that: "5.......It is well settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly...." 38. In "Raghunandan v. King-Emperor" in the course of rioting one Sadal was murdered by Raghunandan @ Nandan. It was held that the common object of the unlawful assembly was to beat the members of rival faction and therefore the guilt of Raghunandan @ Nandan for his crime cannot be constructively imputed to all other members of the unlawful assembly, in the absence of any proved fact leading the Court to believe that the other members of the unlawful assembly knew that murder was likely to be committed by one of their members in the prosecution of their common object. The Oudh Chief Court has observed as under: "The definition of "unlawful assembly as given in S. 141 of the Penal Code, 1860 makes the continuance of the unlawful assembly co-extensive in duration with the time taken in the prosecution of the common object of the assembly, and if the phrase "in prosecution of the common object" meant "during the prosecution of the common object" and during the continuance of the unlawful assembly, then the second part of S. 149 of the Penal Code, 1860 would become superfluous and clearly unnecessary. These considerations inevitably lead us to the conclusion that the phrase "in prosecution of the common object of the unlawful assembly" must mean "that the offence (committed) was immediately connected with the common object of the unlawful assembly, of which the accused were members." In other words, the act, say of murder, must be one which upon the evidence of the prosecution witnesses appears to have been done with a view to accomplish the common object attributed to the members of the unlawful assembly." 39. What was the common object of unlawful assembly and whether each accused can be fastened liability for his individual act are the matters in the realm of appreciation of evidence. It was nearing dawn in the month of July, everyone was sleeping in the house and suddenly twelve persons broke open the house and dragged Roto Gagrai and Palo Gagrai outside and started assaulting them. The discrepancy in the testimony of prosecution witnesses as regards specific role played by each accused was not unnatural. The incident was so unexpected and horrific that the witnesses could not have counted blows. They have seen the respondents inside their house and identified them and that is enough for the purpose of section 149 of the Indian Penal Code-there was an unlawful assembly and two persons were killed. An accused who has been found present along with others carrying deadly weapon at early dawn and two persons were brutally murdered, his participation in the occurrence would be beyond any pale of doubt and the only plea available to him would be to what extent he is vicariously liable with others for murder. The medical evidence records two penetrating wounds, may be caused by bhujali or knife and three sharp cut injuries, may be caused by sharp heavy object. The medical evidence records two penetrating wounds, may be caused by bhujali or knife and three sharp cut injuries, may be caused by sharp heavy object. According to PW1, Kandey Gagrai and Sunil Hembrom were armed with katari and dabiya, Mangal Singh Hembrom was carrying bhujali, Shiva Hembrom was carrying bow & arrow and Sukhlal and Tikun Gagrai were holding lathi and farsa; PW2 has said that Sunil Hembrom assaulted Roto Gagrai with tangi and Mangal Singh Gagrai (Hembrom) assaulted Palo Gagrai with bhujali and Kandey Gagrai was carrying bhala, and; PW3 and PW4 have made allegation of assault by Mangal Singh Gagrai (Hembrom). PW4 has further stated that Sunil Hembrom assaulted Roto Gagrai with kulhari. Mangal Singh Hembrom was not named in the First Information Report and after the investigation he was not sent up for trial. During the trial, the prosecution or the informant did not make an application for summoning Mangal Singh Hembrom under section 319 of the Code of Criminal Procedure to face the trial. Mr. Sheo Kumar Singh, the learned counsel for the respondents submits that in their statement under section 161 Code of Criminal Procedure none of the witnesses has spoken about any role played by Mangal Singh Hembrom. Be that as it may, we cannot examine in the present proceedings the role played by him. In all five penetrating and sharp cut injuries were found on the dead bodies and from the prosecution evidence it is not clear who has inflicted which particular injury upon Roto Gagrai and Palo Gagrai. The other accused were carrying lathi-danda and there is just one injury each on both of them which are referable to assault by lathi. The accused formed an unlawful assembly with an object to commit crime, but from the aforesaid evidence it is not established that their common object was to commit murder of Roto Gagrai and Palo Gagrai. In our opinion, the prosecution has failed to establish that death of Roto Gagrai and Palo Gagrai was caused in prosecution of the common object. The fatal injuries upon Roto Gagrai and Palo Gagrai appear to be handiwork of few accused-not all; however, there is no reliable material to attribute the penetrating and sharp cut injuries caused to Roto Gagrai and Palo Gagrai to the individual accused. The fatal injuries upon Roto Gagrai and Palo Gagrai appear to be handiwork of few accused-not all; however, there is no reliable material to attribute the penetrating and sharp cut injuries caused to Roto Gagrai and Palo Gagrai to the individual accused. The crime scenario and evidence of the prosecution witnesses establish that members of the unlawful assembly knew that grievous injuries may be caused to Roto Gagrai and Palo Gagrai. 40. The act of voluntarily causing grievous hurt relevant for the purpose of this case falls under sections 325 and 326 of the Indian Penal Code. The doctor has not rendered a definite opinion that any of the penetrating or sharp cut injuries was sufficient in the ordinary course to cause death. A penetrating or sharp cut injury on a vital part of body such as chest and head would definitely be dangerous to life and likely to cause death and, therefore, we hold that common object of the unlawful assembly was to cause such injuries as falling under section 326 of the Indian Penal Code. The accused persons broke into the house in the night and committed such acts as punishable in law under section 457 of the Indian Penal Code and the prosecution evidence is quite consistent that the accused by concealing the dead bodies in a ditch covered with stone have committed the offence under section 201 of the Indian Penal Code. The evidence of PW1, PW2 and PW3 who have specifically spoken about the accused nurturing a doubt that Roto Gagrai and Palo Gagrai had played witchcraft on Madho Hembrom and that was the reason they attacked them in the early morning of 27.07.2002 is sufficient to hold that they have committed the offence punishable under sections 3 & 4 of the Prevention of Witch (Daain) Practices Act, 1999. 41. The next question is what would be the appropriate sentence to be awarded to the surviving respondents. 42. A criminal offence is considered as wrong against State and society as well, even though it is committed against an individual. In the context of awarding death penalty, the Hon'ble Supreme Court has observed in "Bachan Singh" (1980) 2 SCC 184 that the exercise of the sentencing discretion is not untrammelled and unguided and it must be exercised judicially in accordance with the well recognised principles crystallized by judicial decisions. In the context of awarding death penalty, the Hon'ble Supreme Court has observed in "Bachan Singh" (1980) 2 SCC 184 that the exercise of the sentencing discretion is not untrammelled and unguided and it must be exercised judicially in accordance with the well recognised principles crystallized by judicial decisions. In "Sunil Dutt Sharma v. State (Govt., of NCT of Delhi)" (2014)4 SCC 375 the Hon'ble Supreme Court has observed as under: 14. "To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years though largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing Judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age-old infallible logic that what is good to one situation would hold to be equally good to another like situation. Besides, para 163 (italicised portion) of Bachan Singh, reproduced earlier (see at SCC p. 385d-f, above), bears testimony to the above fact." 43. While the punishment should be commensurate with the gravity of the offence and no guidelines are provided in the Code of Criminal Procedure for awarding of the punishment, the judicial pronouncements lean towards balancing the need for deterrence and avoiding too harsh punishments, having regard to the aggravating and mitigating circumstances in each case. As observed in "Mohd. Arif v. Supreme Court of India" (2014) 9 SCC 737 a sentence is a compound of many factors, including the nature of the offence as well as the circumstances extenuating or aggravating offence. Inordinate delay in disposal of the appeal causes unimaginable mental agony and is a relevant factor to take into consideration for imposing lesser sentence-acquittal appeal and criminal revision petition were pending for sixteen years. "Triveniben v. State of Gujarat" (1989) 1 SCC 678 has held that inordinate delay in disposal of mercy petition under Article 72 or 161 of the Constitution of India entitles the convict to approach Supreme Court for commutation of death sentence on the ground of violation of Articles 14 and 21. "Triveniben v. State of Gujarat" (1989) 1 SCC 678 has held that inordinate delay in disposal of mercy petition under Article 72 or 161 of the Constitution of India entitles the convict to approach Supreme Court for commutation of death sentence on the ground of violation of Articles 14 and 21. Way back, in "Bissu Mahgoo v. State of U.P." AIR 1954 SC 714 the Hon'ble Supreme Court has held that inordinate delay of an application for leave to appeal was a good ground for commutation of death punishment. A notable feature of this case is that the prosecution has failed to prove who amongst the accused has inflicted which particular injury and this can also not be said with certainty who were carrying which weapon. In "G.S. Walia v. State of Punjab" (1998) 5 SCC 150 five assailants attacked the victim with iron rod, axe and tyre lever. Thirteen injuries including grievous injuries on head and legs of the victim had cumulatively caused his death. The Hon'ble Supreme Court has held that the only inference that can reasonably be drawn is that the object of the accused persons was to beat Balwant Singh. In "Karnail Singh v. State of Punjab" (1976) 4 SCC 816 the prosecution evidence was not clear which particular injury was caused by the accused. Two accused were charged under section 302/34 of the Indian Penal Code and one was acquitted. The conviction of Karnail Singh was held proper under section 326 of the Indian Penal Code and he was sentenced to R.I. for 7 years. In "Ram Jattan and others v. State of U.P." 1995 SCC (Cri.) 169 twelve accused caused multiple injuries on the victims. They were convicted and sentenced to R.I. for 5 years under section 304 Part II of the Indian Penal Code. In a criminal case there is no such thing as a judicial precedent on facts AIR 1956 SC 116 , but we are definitely guided by the judicial thinking of the Courts in the decisions. 44. They were convicted and sentenced to R.I. for 5 years under section 304 Part II of the Indian Penal Code. In a criminal case there is no such thing as a judicial precedent on facts AIR 1956 SC 116 , but we are definitely guided by the judicial thinking of the Courts in the decisions. 44. In the light of the aforesaid decisions, mitigating viz-a-viz aggravating circumstances and somewhat peculiar features in the case, we are of the opinion that the respondents, namely, Jaglal Hembrom, Passing Hembrom, Sunil Hembrom @ Sunil Kumar Hembrom, Manki Hembrom, Mungru Gagrai, Tikun Gagrai, Kundiya Gagrai and Sahedev Gagrai are liable to be convicted and sentenced to R.I. for 5 years with fine of Rs. 5000/- each under section 326/149 of the Indian Penal Code. They are further convicted and sentenced to R.I. for 5 years under section 457/149 of the Indian Penal Code and R.I. for 3 years under section 201/149 of the Indian Penal Code-all sentences shall run concurrently and the respondents shall be given benefit of set-off for the period of imprisonment already undergone, if any. They shall surrender within four weeks to serve the sentence. 45. On receipt of a copy of the judgment through FAX, the Court concerned shall prepare a conviction warrant against the above-named respondents in terms of this judgment. 46. In the result, Acquittal Appeal No. 23 of 2004 and Criminal Revision No. 374 of 2004 are allowed to the aforesaid extent. 47. Let the lower Court records be sent to the Court concerned forthwith. Ratnaker Bhengra, J. I agree.