IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) CRIMINAL APPEAL NO.

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) APPELLANTS 1) Tafar Tappo 2) Milkush Lekra CRIMINAL APPEAL NO.13(J)/2005 By advocate : Mr P Kataki, Amicus Curiae VERSUS RESPONDENT The State of Assam By advocate : Mr Z Kamar, PP BEFORE HON BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON BLE MR JUSTICE A.K. GOSWAMI Date of hearing : Date of judgment and order : JUDGMENT AND ORDER (Madan B. Lokur, CJ) There are two appellants before us, that is, Tafar Tappo and Milkush Lekra. They are aggrieved by the judgment and sentence dated Crl Appeal No. 13(J)/2005 Page 1 of 9

2 passed by the learned Addl. District & Sessions Judge, Lakhimpur in Sessions Case No. 52(NL)/ The facts of the case are rather interesting. It is alleged by the prosecution that three persons, that is the two appellants before us and one Markesh Lekra went to the house of Sylvina Orang at about 3 a.m. on the night intervening 14/ They took her away on the ground that the mother of Milkush Lekra and Markesh Lekra was unwell. This was in the presence of the two children (Smti Prabha Khalokha and Martin Orang) of Sylvina Orang. It seems that Sylvina Orang was a nurse and was apparently required for her treatment. 3. Thereafter, it appears that nothing was heard of Sylvina Orang for a few days. The two children of Sylvina Orang did not inform the police immediately about the disappearance of their mother. As per their testimony they made efforts to trace out their mother but were unable to do so. It was only on at about 11 p.m. that Smti Prabha Khalokha lodged a First Information Report (FIR) in the Lilabari Police Out Post. 4. In her FIR, Smti Prabha Khalokha stated that she came to know from a reliable source that the aforesaid three persons, that is Tafar Tappo, Milkush Lekra and Markesh Lekra had killed Sylvina Orang by injuring her with a lathi near the culvert of Cinnatolia Tea Estate. Smti Crl Appeal No. 13(J)/2005 Page 2 of 9

3 Prabha Khalokha Orang says that she learnt that they had hidden the body at a dahani (a place covered with a kind of aquatic grass) about 1½ km away from the place of occurrence. On these broad facts, the informant asked the police to investigate and take necessary action. 5. What is interesting is that one of the accused persons, Markesh Lekra appears to have surrendered before the police at about 9 a.m. on that is more than 12 hours before the FIR was recorded. This fact appears from the confessional statement made by Markesh Lekra under Section 164 of the CrPC. In his statement recorded on he says that Sylvina Orang was a witch in the tea garden and that she was responsible for the death of his father and his elder brother through witchcraft. He also says that Sylvina Orang had caused his niece to go mad. He says that on he went to her house and called her to see his niece. Sylvina Orang came with him and was preceding him when he struck her with firewood and trampled her in the neck as a result of which she died. He says that he then put her body in a sack with some sweepings and buried the body in a nullah. Later on, he took the police to the place of occurrence and showed them the body. 6. In the evidence recorded before the learned Trial Judge, Smti Prabha Khalokha the daughter of Sylvina Orang entered the witness box as PW-1. She stated that at about 3 a.m. on the three accused persons came to their house and took Sylvina Orang to Crl Appeal No. 13(J)/2005 Page 3 of 9

4 Markesh s house. She does not say anything about the mother of Markesh being unwell or that she was forcibly taken away or by any deceitful means. 7. Martin Orang, the son of Sylvina Orang appeared in the witness box as PW-2. In his statement he confirmed the statement of his sister PW-1 Smti Prabha Khalokha but he also said that the three accused persons took his mother away to work as a nurse. 8. The other witnesses are only formal witnesses. PW-3 Bulu Gohain and PW-4 Zindu Orang are witnesses to the inquest proceedings while PW-5 Dr Ganesh Saikia is the doctor who conducted the post mortem. PW-5 stated in his deposition that he had examined the semi decomposed body of Sylvina Orang and had noticed a fracture and also some blunt injuries on her body. PW-6 AK Baruah is the Magistrate who recorded the statement of Markesh Lekra, while PW-7 Laba Ram Dutta and PW-8 Bijoy Kr Dey are the two Investigating Officers. According to PW-7 Laba Ram Dutta the weapon of offence was a bamboo lathi which he seized from the place of occurrence. PW- 8 Bijoy Kr Dey succeeded PW-7 Laba Ram Dutta as the Investigating Officer and his role is only that he filed the charge sheet against the three accused persons. Crl Appeal No. 13(J)/2005 Page 4 of 9

5 9. On the basis of the evidence indicated above, the learned Trial Judge convicted all the three accused persons of an offence under Section 302 of the IPC. Markesh Lekra was also convicted of an offence under Section 201 of the IPC while the two appellants before us were acquitted of any offence under Section 201 of the IPC. 10. It may be noted at this stage that Markesh Lekra has not preferred any appeal and has accepted the judgment and sentence awarded by the learned Trial Judge. 11. It is submitted before us on behalf of the appellants by learned Amicus Curiae that their conviction is based only on the testimony of the two children of Sylvina Orang that is PW-1 and PW-2. Their evidence is to the effect that the appellants were with Markesh Lekra and had taken Sylvina Orang with them. Other than this, there is no other evidence against any of the appellants. 12. Learned Amicus Curiae has also pointed out that from a reading of the FIR it is clear that Smti Prabha Khalokha, the daughter of Sylvina Orang, had stated that she came to know from a reliable source that the three accused persons had killed Sylvina Orang but, the so called reliable source was not identified nor did he/she enter the witness box. Crl Appeal No. 13(J)/2005 Page 5 of 9

6 13. Learned Amicus Curiae also submitted that the confessional statement of Markesh Lekra completely exonerates the appellants. The confession being true and correct, and accepted by the learned Trial Judge for convicting Markesh Lekra, clearly indicates that the appellants had absolutely no role to play in the unnatural death of Sylvina Orang. 14. Learned Public Prosecutor submitted that this is a clear case of abduction followed by a murder. Since Sylvina Orang was last seen with the appellants, apart from Markesh Lekra, there is sufficient evidence to find them guilty of the offence with which they have been charged. 15. Unfortunately, it is not possible for us to agree with the contention of the learned Public Prosecutor. There is no doubt that Markesh Lekra gave a voluntary and truthful confession which was accepted by the learned Trial Judge. If the confession is accepted in toto it is clear that the two appellants had absolutely nothing to do with the incident of taking Sylvina Orang with them or at least with the death of Sylvina Orang in an unnatural manner. The confessional statement of Markesh Lekra is as follows: Sylvina Orang is a witch of our tea garden. She killed my father George Lekra and my elder brother Didakosh Lekra by means of witchcraft. At present, she has made my niece mad through wizardry. On I went to the house of Sylvina Orang and called her to see my niece. She came Crl Appeal No. 13(J)/2005 Page 6 of 9

7 with me and preceded me. Then I struck her in the head with a split firewood and trampled her in the neck. When she died, I put the body in a sack, put some sweepings and buried that in a nullah. Later I took the police to the place of occurrence and showed the body. 16. As regards the charge of abduction made against the appellants, even going by the statement of the two children of Sylvina Orang, that is PW-1 and PW-2, it is clear that the two appellants had only accompanied Markesh Lekra to take Sylvina Orang away. There is nothing in their testimony to suggest that Sylvina Orang was either forcibly taken away or that any deceitful means were employed to take her away. It seems that Sylvina Orang went voluntarily with Markesh Lekra and the two appellants there is no hint to the contrary. In these circumstances, no case of abduction, as contended by the learned Public Prosecutor, is made out. 17. Merely because Sylvina Orang was last seen with the two appellants and Markesh Lekra does not conclusively prove that the appellants were complicit in her unnatural death. At best, only an adverse presumption can be drawn against the two appellants and even this presumption may be rebutted. In this case, the confessional statement of Markesh Lekra completely absolves the two appellants in the commission of the crime. Markesh Lekra unequivocally admits to having hit Sylvina Orang on the head with firewood and trampled her neck thereby causing her death. There is no mention of any of the two Crl Appeal No. 13(J)/2005 Page 7 of 9

8 appellants either being present at that time or being in any way involved in the incident. The theory of last seen together cannot be extended to such an extent as to rope in any person, not at all connected with the commission of an offence, merely because he or she was last seen with the deceased. 18. It is also important to take note of the fact that Markesh Lekra had apparently surrendered to the police at about 9 a.m. on while the FIR was registered by Smti Prabha Khalokha at about 11 p.m. on the same day. The police was, therefore, fully aware of the crime by the time the FIR was lodged. In a sense, Markesh Lekra was himself the first informant and so the contents of the FIR lodged by Smti Prabha Khalokha need to be carefully scrutinized. In this scrutiny, we find that the FIR is based on information received by Smti Prabha Khalokha from a reliable source who is neither identified nor is produced in the witness box. We have no doubt, therefore, that the statement of Markesh Lekra must be accepted as it is and the two appellants be acquitted of the charge of murder leveled against them, regardless of the allegation made in the FIR registered much after the confession said to have been given by Markesh Lekra, which is not denied by the police authorities or the prosecution. 19. Under the circumstances, we set aside the judgment and sentence passed by the learned Addl. District & Sessions Judge insofar as the Crl Appeal No. 13(J)/2005 Page 8 of 9

9 present appellants are concerned. We allow their appeal and acquit them of the charge leveled against them. 20. Since learned Amicus Curiae has rendered considerable assistance to us in this matter, we direct the Assam State Legal Services Authority to pay to him a remuneration of `5000/ Send down the LCRs immediately. JUDGE CHIEF JUSTICE Mazumdar/ Crl Appeal No. 13(J)/2005 Page 9 of 9