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2021 Supreme(Jhk) 1056
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. Chandrashekhar, Ratnaker Bhengra, JJ.
State of Jharkhand and Ors. – Appellants
Versus
Jaglal Hembrom and Ors. – Respondents
Acquittal Appeal No. 23 of 2004 and Criminal Revision No. 374 of 2004
Decided On : 08-02-2021
Advocate Appeared:
For the Appellant :S.K. Srivastava, APP and H.K. Mahato, Advocate
For the Respondent:Sheo Kumar Singh, Advocate and S.K. Srivastava, APP
Headnote:(A) Indian Penal Code - Sections 147, 148, 149, 302, 457, 201; Prevention of Witch (Daain) Practices Act, 1999 - Murder charges - Acquittal of eleven accused was overturned - Court found that prosecution established presence of unlawful assembly with common object of committing murder, despite discrepancies in witness accounts - Evidence of the informant and other witnesses indicated the motive behind the crime, linked to witchcraft accusations; prosecution’s failure to pinpoint individual culpability does not absolve all. (Paras 31, 40, 44)
Facts of the case:
The case involved the brutal murder of two villagers accused of witchcraft by an unlawful assembly of eleven individuals who had claimed they caused illness. The acquittal of these accused was challenged by the State and an informant’s appeal, which remained pending for about seven years. (Paras 1, 37)
Findings of Court:
The trial court had erred in its finding, leading to an unjust acquittal. The Court emphasized that the prosecution had established a common objective, that despite inconsistencies, presence and association could hold members accountable. (Paras 31, 32, 44)
Issues: The key issues were whether sufficient evidence existed linking the accused to the murders in the context of their assembly and if the earlier acquittal was justified based on the evidence presented. (Paras 6, 12)
Ratio Decidendi: The Constitution affirms that every member of an unlawful assembly is responsible for the actions of other members in the prosecution of their common object, which may support individual accountability even if the specific roles are not clear. The presumption of innocence does not negate the evidence supporting participation in an unlawful assembly. (Paras 36, 40)
Result: Acquittal appeal allowed; respondents convicted and sentenced under various sections with concurrent sentences. (Paras 46, 47)
| Table of Content |
|---|
| 1. chronology of murder case details. (Para 1 , 2) |
| 2. medical examination findings on the dead bodies. (Para 3 , 8) |
| 3. details of the acquittal appeal and reasons. (Para 4 , 5) |
| 4. eyewitness testimony inconsistencies. (Para 7 , 10 , 12) |
| 5. importance and validity of the first information report. (Para 13 , 14 , 15) |
| 6. confessions and their admissibility in court. (Para 18 , 19 , 20) |
| 7. nature of confessions under indian law. (Para 22 , 23 , 24) |
| 8. judgment's reasoning and legal principles on common object. (Para 25 , 26) |
| 9. court's final conclusion and ruling. (Para 31 , 32) |
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. 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 Preve
