Sumay Hembram @ Sumai Hembram And 4 Ors. vs The State Of Assam And Anr.

Page No.# 1/17
GAHC010136342020

2026:GAU-AS:12388
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./191/2020
SUMAY HEMBRAM @ SUMAI HEMBRAM AND 4 ORS.
S/O- BAICHIAM HEMBRAM, R/O- VILL.- PHACHIM LARUGAON P.O. AND
P.S. BIJNI, DIST.- CHIRANG (B.T.A.D), ASSAM, PIN- 783390.
2: SONI HAMBRAM @ SANIRAM HEMBRAM
S/O- SUMAI HEMBRAM
R/O- VILL.- PHACHIM LARUGAON P.O. AND P.S. BIJNI
DIST.- CHIRANG (B.T.A.D)
ASSAM
PIN- 783390.
3: SUBASH MURMU
S/O- BAGIRAY MURMU
R/O- VILL.- PHACHIM LARUGAON P.O. AND P.S. BIJNI
DIST.- CHIRANG (B.T.A.D)
ASSAM
PIN- 783390.
4: SONJOY MURMU
S/O- BAGIRAY MURM
R/O- VILL.- PHACHIM LARUGAON P.O. AND P.S. BIJNI
DIST.- CHIRANG (B.T.A.D)
ASSAM
PIN- 783390.
5: BABU RAM MURMU
S/O- KANDINA MURMU
R/O- VILL.- PHACHIM LARUGAON P.O. AND P.S. BIJNI
DIST.- CHIRANG (B.T.A.D)
ASSAM
PIN- 783390
VERSUS

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THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:JHETHA MURMU
S/O- LATE DIBIA MURMU
R/O- VILL.- PHACHIM LARUGAON P.O. AND P.S. BIJNI
DIST.- CHIRANG (B.T.A.D)
ASSAM
PIN- 783390
Advocate for the appellants : Mr. M. A. Mondal
Advocate for the respondents : Ms. B. Bhuyan, Addl. P.P.

:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE ANJAN MONI KALITA

Date on which judgment is reserved : 25.08.2026
Date of pronouncement of judgment : 28.08.2026
Whether the pronouncement is of the : No.
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?

JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)
1. Heard Mr. M. A. Mondal, learned counsel for the appellants. Also heard
Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam.
2. This appeal has been filed against the impugned judgment dated
11.02.2022, passed by the learned Additional Session Judge, Bijni, in Sessions

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Case No. 3(B)/2018, by which the appellants have been convicted under
Sections 302, 367, 201/147 IPC. They have accordingly been sentenced to
undergo rigorous imprisonment for life with a fine of Rs.3,000/- each, in default,
simple imprisonment for six months under Section 302 IPC. They have also
been sentenced to undergo rigorous imprisonment for five years with a fine of
Rs.2,000/- each, in default, simple imprisonment for three months under
Section 367 IPC. They have also been sentenced to undergo rigorous
imprisonment for 1 year each under Section 201 IPC and sentenced to undergo
simple imprisonment for six months under Section 147 IPC. The appellants have
been convicted for having abducted, murdered and buried the deceased lady on
the charge that she was a witch.
3. The prosecution case in brief is that an FIR dated 28.06.2006 had been
submitted by the husband (PW-2) of the deceased on 28.06.2006, stating that
the five appellants along with one co-accused Luthuru Murmu, had entered their
house on 23.06.2006 at 6.30 pm and assaulted his family. Unable to bear the
torture, the informant (PW-2) ran away. However, the appellants and the said
co-accused had dragged his wife (deceased) away. Though he searched for her,
PW-2 could not find his wife.
4. Pursuant to the FIR filed by PW-2, Bijni P.S. Case No. 66/2006 was
registered under Sections 147/448/325/366 IPC.
5. During investigation, the body of the wife of PW-2 was found buried.
The body was thereafter taken out and inquest was done on the same on
29.06.2006 at about 1.45 pm, where the body was found to be decomposed.

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The dead body was thereafter sent for post-mortem examination and the same
was done on 30.06.2006 by the doctor, wherein as per the opinion of the doctor,
death was due to shock and hemorrhage, following right lung injury, which was
anti-mortem in nature.
6. After investigation was completed, the Investigative Officer handed
over the case diary to PW-10, who submitted the charge sheet, on having found
a prima facie case established against the appellants and the co-accused
Luthuru Murmu, under Sections 147/448/366/302/201 IPC.
7. The learned Trial Court thereafter framed charges under Sections 147,
448/34, 302/34, 201/34 and 367 IPC, to which the 6 (six) accused persons,
including the appellants pleaded not guilty and claimed to be tried.
8. The learned Trial Court thereafter examined 10 Prosecution Witnesses
and after examining the appellants under Section 313 Cr.PC, the learned Trial
Court came to a finding that the Prosecution had been able to prove the guilt of
the appellants under Sections 201/147/302/367 IPC and convicted them
accordingly.
9. It may be stated here that during the criminal trial, the co-accused
Luthuru Murmu had expired.
10. The appellant's counsel submits that the impugned judgment and order
should be set aside and the appellants should be acquitted of the charges
framed against them, in view of the fact that there were no eye witnesses to the

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abduction or the killing of the deceased. He further submits that there was
contradiction in the testimonies of PW Nos. 2, 4 and 6, He also submits that the
evidence of the doctor (PW-9) and the post-mortem report did not mention the
time and date of the death of the deceased, to make a connection between the
alleged abduction of the deceased by the appellants and the death of the
deceased. He submits that there is no circumstantial evidence or last seen
theory to have connected the death of the deceased with the appellants.
11. The learned Addl. PP submits that the appellants had a common object
to kill the deceased, in view of the evidence of PW Nos. 4 and 6, which was to
the effect that the appellants had come to their house armed with dao, dagger
and other weapons with which they had damaged the trees and walls of their
house. The appellants had also stated that they were looking for the deceased
and stated that they wanted to kill her, as she was a witch. She thus submits
that, in view of the evidence of PW Nos. 4 and 6, which show the intent of the
appellants to kill the deceased, who was eventually found buried with injuries, it
could have been none other than the appellants, who had killed the deceased.
She thus submits that the impugned judgment should not be interfered with.
12. We have heard the learned counsels for the parties.
13. As stated earlier, 10(ten) Prosecution Witnesses were examined by the
learned Trial Court. The evidence of PW-1, who is the son-in-law of the
deceased and PW-2, is to the effect that the dead body of his mother-in-law
was buried in an agricultural field about 2 kms away from his father-in-law's
house. PW-1 and his father-in-law (PW-2) dug up a certain spot in the land and

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found the dead body. PW-1 stated that he did not see any injury on the dead
body, as the skin had come off. The Police and the Magistrate arrived thereafter,
whereupon the Police obtained his signature on the Inquest Report. He also
stated that he was informed by PW-2 that the accused persons present in the
dock had killed his mother-in-law.
14. The evidence of PW-2, who is the husband of the deceased, is to the
effect that the appellants had abducted his wife, suspecting her to be a witch
and as they had made an attempt to kill him, he had fled the scene. He further
stated that the co-accused Luthuru, had asked him not to lodge any FIR.
Further, when the Police was informed of the incident, they had come and
recovered the dead body of his wife, by digging up a spot which was 4 kms
away from his house.
In his cross-examination, PW-2 stated that he did not see the accused
persons taking away his wife.
15. The evidence of PW-3 is to the effect that he knew the appellants and
PW-2. He however could not say who had killed the deceased.
16. The evidence of PW-4, who is the daughter of PW-2 and the deceased,
is to the effect that while her father went to the market and her mother was
working in the field, she was in the house, when the accused persons armed
with dagger and dao came to their house. Her elder sister (PW-6), brother-in-
law and younger brother Jibia were in the house. When they saw the appellants
with weapons in their house, the four of them ran away. When her mother

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returned from the field, the appellants abducted her mother. PW-4 further
stated that 3(three) days after the incident, Police recovered the dead body. She
also stated that she spent the whole night in the jungle and met her father the
day after.
17. The evidence of PW-5, who is the Doctor, who conducted the post-
mortem examination on the body of the deceased on 30/06/2006, is to the
effect that the Rigor Mortis was absent and there was no external injury seen on
nd rd
the body of the deceased. After dissection, it was found that the 2 and 3 ribs
and the right lung were fractured. There was blood collection in the right pleural
cavity. However, the other organs were healthy. In his opinion, death was due to
shock and haemorrhage following injury to the right lung, which was ante-
mortem in nature. There is nothing in the evidence of PW-5 or the Post Mortem
nd
examination report to show that the right lung injury or the fracture of the 2
rd
and 3 ribs were caused by any weapon.
18. The evidence of PW-6 is to the effect that while she was at home, the
appellants armed with arrows, dao and axe came to their house and cut the
trees and walls of the house. They asked for her mother, suspecting her to be a
witch and stating that they were there to cut her and kill her. The appellants
were running here and there and her mother returned home about 4 p.m,
whereupon the appellants abducted her mother from their house. Thereafter,
PW-6 left the house out of fear and spent the whole night in the jungle located
in the back of their house. Four days after the occurrence, her mother's dead
body was recovered from the village where it was kept buried. PW-6 further
stated that her two younger brothers went to a different jungle and that they

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did not go along with her. PW-6 further stated that she raised an alarm when
the appellants came, but no villagers turned up to their house. It is interesting
to note that PW-6 has not spoken of PW-4 at the time the appellants entered
the house of the victim.
19. The evidence of PW-7 is to the effect that on 28/06/2006, PW-2 had told
him that the appellants had assaulted PW-2 and dragged away his wife from the
house, due to which he wrote the FIR, as dictated by PW-2.
20. The evidence of PW-8 is to the effect that PW-2 was his father-in-law
and that he learnt from PW-2 that the appellants had killed his mother-in-law
and buried her body.
21. The evidence of PW-9 is to the effect that he conducted Inquest over
the body of the deceased at 1.45 pm on 29/06/2006.
22. The evidence of PW-10 is to the effect that on 14/07/2007, he was
nd
posted as 2 Officer in the Bijni Police Station. On 14/07/2007, the Officer-in-
Charge of the Bijni Police Station handed him the Case Diary with regard to the
present case and asking him to complete the investigation. Since the
investigation was already completed, he collected the post-mortem report and
on finding a prima facie case against the appellants and the co-accused under
section 147/448/366/302/201 IPC, he submitted the charge sheet.
23. The examination of the appellants under section 313 Cr.P.C shows that
they have given a blanket denial to the adverse evidence that had been

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adduced against them. They have also denied being in the house of the
deceased and cutting the trees and walls of the house.
24. What is discernible from the evidence of the Prosecution Witnesses is
that there were no eyewitnesses to the abduction of the deceased by the
appellants. Though it can be implied that the appellants were the ones who had
abducted the victim, inasmuch as, they had come to the house of the deceased
looking for her and calling her a witch, no one had seen the deceased with the
appellants. The evidence of PW-6 is to the effect that after the appellants had
abducted her mother from their house, she left the house out of fear and spent
the whole night in the jungle located in the back of the house. Though the said
evidence appears to imply and prove that she was an eyewitness to the said
abduction, the evidence of her sister (PW-4) is to the effect that PW-6, her
brother-in-law, her younger brother Jibia and herself (PW-4), had run away on
seeing the appellants with their weapons, coming to their house. In her cross-
examination, PW-6 has also stated that her two younger brothers went to a
different jungle than the one she went to. She was also confronted with a
suggestion that she did not tell the Police that the appellants had abducted her
mother in her presence, which she denied.
25. Thus, though an attempt had been made to contradict the evidence
given by PW-6 that she had been present at the time her mother was abducted
by the appellants, the testimony of PW-6 could not be contradicted in terms of
Section 145 of the Evidence Act, in view of the fact that the Investigating Officer
who had recorded the statements of the witnesses under Section 161 Cr.P.C, did
not appear as a witness before the learned Trial Court. This has caused

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prejudice to the appellants, inasmuch as, they have not been given a chance to
contradict the testimony of PW-6, vis-à-vis her statement given under Section
161 Cr.P.C, where there is nothing stated therein that PW-6 had seen the
appellants abducting the deceased. As such, it may not be safe to conclude that
there was proof of there being an eyewitness (PW-6), who saw the appellants
abducting the deceased.
26. It is settled law that non-examination of the Investigating Officer as a
Prosecution Witness may not vitiate the Prosecution case or the trial. However,
if the same causes prejudice to an accused, the non-examination of the
Investigating Officer can be said to vitiate the trial and/or the Prosecution case.
In the case of Behari Prasad Vs. State of Bihar, reported in (1996) 2 SCC
317 , the Supreme Court has held that non-examination of the Investigating
Officer in the trial is not fatal to the Prosecution case, especially when no
prejudice was likely to be suffered by the accused. In the present case, we find
that the non examination of the Investigating Officer as a Prosecution Witness
has caused prejudice to the appellants, as they had not been given the
opportunity to contradict the statements of the witnesses, by confronting the
Investigating Officer with the statements made by them under Section 161
Cr.P.C. vis-à-vis their testimony in Court.
27. Though PW-4 and PW-6 have stated that they had seen the appellants
with dao, dagger and axe etc., there has been no seizure of the same by the
Police. We also find that there is no explanation given by any of the witnesses,
as to how and by whom, the place where the body was hidden, was discovered
and as to how it was PW-1 and PW-2, who had first come to know where the

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body of the victim had been buried. In fact the evidence of PW-1 is to the effect
that the Police and Magistrate arrived only after PW-1 and PW-2 had found and
dug up the dead body.
28. We find that there is contradiction in the evidence given by PWs- 2, 4
and 6, inasmuch as, PW-2 had stated that the appellants had abducted his wife
in the evening hours and that they had made an attempt to kill him, due to
which he had fled from the place of occurrence. He, however, has denied seeing
the appellants taking his wife, during his cross-examination. The fact that PW-2
was not present during the time the appellants had come to his house has been
clarified by PW-4, who stated that her father (PW-2), had gone to the market
while her mother was working in the field, at the relevant point of time. As
such, PW-2 could not have seen the appellants in his house, at the relevant
point of time.

29. Another fact which needs clarification is that PW-4 stated in her
testimony when the appellants came to their house with weapons, her elder
sister (PW-6), her brother-in-law and younger brother Jibia were at home.
Seeing the appellants armed with weapons, the four of them ran away. The
above fact clearly goes to show that PW-4 & PW-6 could not have seen the
appellants abducting her mother (deceased).
30. There is a discrepancy in the evidence of PW-4 and PW-6, on account of
PW-4 stating that she and PW-6 had run away. The evidence of PW-6 does not
state that she had seen the actual abduction of her mother by the appellants.
However, her testimony implies that she was present at the time of abduction of
her mother by the appellants. A reading of the evidence of PW-4, when

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juxtaposed with the evidence of PW-6, shows that two interpretations/views are
possible, as to whether the PW-6 had seen the abduction of her mother by the
appellants. One view is that prior to PW-6 running away, she had seen the
abduction of her mother. This is however contradicted by the evidence of PW-6
herself in her examination-in-chief, when she stated that her mother had gone
to harvest paddy. The other view is that PW-6 could not have seen the
abduction due to her running away to the jungle along with PW-4. It is thus
quite apparent that the evidence of PW-6 does not appear to be reliable in
respect of abduction of her mother by the appellants, though there is no doubt
that the appellants had gone to the victim's house. It is also be remembered
that when two views are possible with regard to the result that can be culled
out from the evidence, the view in favour of the accused has to be
accepted/taken.
31. The discrepancy in the evidence of PWs- 2, 4 and 6 goes to the root of
the problem, inasmuch as, the very abduction and the death of the deceased at
the hand of the appellants, has to be proved. In the present case, the evidence
of PWs- 2, 4 and 6 not being in sync with one another, the discrepancies appear
to be major discrepancies.
32. As can be seen from the evidence, the FIR had been filed on
28/06/2006, wherein it has been stated that the deceased had been taken away
on 23/06/2006. The body was found only on 29/06/2006 and the Post-Mortem
examination was done on 30/06/2006. We find that there is an inordinate delay
in filing the FIR, keeping in view the fact that PW-2, PW-4 and PW-6 have stated
that the appellants had come to their house on 23/06/2006.
33. When a Court is presented with a delayed FIR, the most important thing

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it must decide, is whether the reason given for the delay is satisfactory or
plausible. In P. Rajagopal and Ors. Etc. vs The State Of Tamil Nadu ,
reported in (2019) 4 SCC 771 , the Supreme Court held that the Court is
obligated to ascertain if the provided explanation is sufficiently credible in light
of the facts and circumstances of the case. If the complainant seems
trustworthy and has no reason to falsely accuse the accused, the delay must be
excused.
34. In the case of Apren Joseph alias Current Kunjunju and Ors. Vs.
The State of Kerala , reported in (1973) 3 SCC 114 , the Hon’ble Supreme
Court has held that an FIR is very useful, if recorded before there is time and
opportunity to embellish it, or before the informant’s memory fades. Undue or
unreasonable delay in lodging the FIR, therefore, may give rise to suspicion
which put the Court on guard to look for the possible motive and the
explanation for the delay and consider its effect on the trustworthiness or
otherwise of the prosecution version. Thus, in terms of the above judgment, FIR
should normally be lodged at the earliest possible opportunity.
35. In the present case, no reason has been provided by any of the
Prosecution Witnesses, as to why there has been a delay of 5 days in filing the
FIR, especially when PWs- 4 and 6 had seen the appellants armed with
weapons coming into their house, besides the fact that their mother was not
seen subsequent to 23/06/2006. The delay of 5 days in filing the FIR gives rise
to a suspicion that there has been embellishment in the case due to the
unexplained delay in lodging the FIR. The FIR should have been filed
immediately after the day of the incident, at the latest.

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36. One other aspect of the matter is with regard to recovery of the body of
the deceased. PW-1 had stated that the body of the deceased had been
recovered by him and his father-in-law (PW-2), which was dug up by PW-1 and
PW-2, after which the Police and the Magistrate arrived. While PWs- 1 and 2
have not stated as to when the body was dug up after 23/06/2006. PW-4 stated
that the dead body was recovered 3 days after the incident, which would be
around 26/06/2006. PW-6, on the other hand, stated that the body was
recovered 4 days after the occurrence, which would make the date of recovery
as 27/06/2006.
37. As stated in the foregoing paragraphs, inquest was held over the dead
body on 29/06/2006, while post-mortem examination was done on 30/06/2006.
Thus, there are many discrepancies in the evidence of the Prosecution
Witnesses, even with regard to the date of recovery of the body and the
manner in which it was recovered.
38. In the case of State of Rajasthan Vs. Smt. Kalki & Anr, reported in
(1981) 2 SCC 752, the Supreme Court has held that contradictions affecting
the core of the Prosecution case are fatal.
39. On considering all the above facts, we are of the view that when there is
no eyewitness to the abduction and the killing of the deceased, the issue of
whether the circumstantial evidence forms a complete chain, which firmly
establishes that the deceased had died only due to the acts of the appellants,
would have to be proved. The learned Trial Court came to a finding that the
appellants had gone to the house of the informant, while PW-6 was alone in the

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house and had made enquiries about the deceased, while stating that she was a
witch and that they intended to kill her. The learned Trial Court also held that
when the deceased returned from the field at around 4:00 p.m, the appellants
abducted the deceased, after which the deceased was never seen. Further, the
dead body of the deceased was buried in the paddy field. In this respect, we
find that the learned Trial Court has erred in coming to the above said finding,
especially when there is no clear evidence to the effect that PW-6 had seen the
abduction of her mother by the appellants. The testimony of PW-6 is not
corroborated by the evidence of PW-4, who stated that all of them including
PW-6 had run away on seeing the appellants. It is also not understood as to
how PW-1 and PW-2 were able to locate the buried body of the deceased and
dig out the same prior to the police and the Magistrate arriving at the burial
site.
40. In the case of Sharad Birdhi Chand Sarda Vs. State of
Maharashtra, reported in AIR 1984 SC 1622, the Hon’ble Supreme Court
has held that the circumstances from which the conclusion of guilt is to be
drawn should be fully established, which is consistent only with the hypothesis
of the guilt of the accused and it should exclude every other possible hypothesis
except the one to be proved. There is no evidence showing that the deceased
was last seen with the appellants, though it could be speculated that the
appellants had abducted the deceased when they had come to the house of the
deceased. However, as held by the Supreme Court, suspicion, howsoever grave,
cannot take the place of proof. We are accordingly of the view that the
Prosecution has failed to prove their case beyond reasonable doubt.

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41. The above being said, the State Government has passed the Assam
Witch Hunting (Prohibition, Prevention and Protection) Act, 2015, to curb the
menace of witch hunting by villagers in the State of Assam. Witch hunting
violence is a result of deep rooted superstitions which has led to the loss of
many lives in the State. There can be many reasons for witch hunting, which
could be diseases, crop failures, calamities and can also be used as an excuse
for land grabbing etc. Suffice to say that the issue of witch hunting is a serious
problem in the state, which has necessitated a statutory law to be made to
prohibit and prevent witch hunting.
42. In the present case, when we consider all the facts, we find that the
evidence adduced by the Prosecution witnesses do not prove the case of the
Prosecution beyond reasonable doubt, to the effect that the appellants had
killed the deceased. The circumstantial evidence also does not form a complete
chain showing that their alleged action, if any, was the cause of death of the
deceased. There is nothing beyond their presence in the house of the deceased,
to link them with the death of the deceased. There was no weapon seized by
the police and the exact time of death of the deceased could not be known.
Further, due to the date and time of death of the deceased not being known,
there was nothing to show that there was a short time period between the
appellants going into the house of the deceased and the abduction and eventual
death of the deceased. The appellants are accordingly acquitted of the charges
framed against them, by giving them the benefit of doubt. Consequently, the
impugned judgment dated 11.02.2022, passed by the learned Additional Session
Judge, Bijni, in Sessions Case No. 3(B)/2018 is hereby set aside. The
respondents are directed to release the appellants from judicial custody

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immediately, if not wanted in any other case.
43. The appeal is accordingly allowed.
44. Send back the TCR.
JUDGE JUDGE
Digitally signed
by Anupam
Chutia
Date: 2026.08.28
11:35:04 +05'30'
Comparing Assistant
Anupam
Chutia