Gauhati High Court
Karunamoy Sarmah vs State Of Assam on 3 October, 2002
Equivalent citations: 2003CRILJ1968
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. The appellant/accused Sri Karunamoy Sarmah was convicted in connection with Sessions Case No. 75 of 1994 under Section 307/448, IPC by Sessions Judge, Karimganj, vide judgment and order dated 28-6-95. He was sentenced to rigorous imprisonment for 7 years and also to a fine of Rs. 500/- in default of fine to further R.I. for 3 months for the offence under Section 307, IPC and to another term of R.I. for 3 months under Section 448, IPC, Sentences were to run concurrently.
2. Being dis-satisfied and aggrieved by the impugned judgment and order he has preferred this appeal on several grounds as mentioned in the appeal-petition.
3. I have heard learned counsel appearing for the appellant and also learned Public Prosecutor Mr. P. Boara appearing for State/respondent.
4. Briefly stated, the case for the prosecution (FIR version) is that on 8-3-92 at about 4-15 p.m. at the place called Rangamati under Patharkandi Police station of District Karimganj, the informant Sri Sunil Ch. Malakar was slicing & dressing vegetables inside his hotel-cum--residence. Suddenly one person, dressed in 'Khaki-clothes and armed with gun entered the hotel and fired shot at him. The informant was seriously wounded on his back due to impact of the bullet. That this person when preparing to fire another shot, the informant jumped upon him raising alarm due to which people from around came and caught hold of the person who was later identified as a police personnel residing at Balipipla Forest office and his name was Karunamoy Sarmah, a Havildar.
5. FIR (written by one Bhaskar Das) being lodged by the informant, it was received by the then O.C. Patharkandi P.S. upon which the Patharkandi P.S. Case No. 44/92 (GR 223/92) Under Sections 448/307/326 of IPC was registered (on the same date at 9 p.m.) The case was investigated by the O.C. Sri Kiron Kr. Barua himself. In due course, on completion of investigation charge-sheet was submitted against the appellant and case was committed to Court of Sessions by CJM, Karimganj. Trial began against the appellant on 9.12.91 framing charges under Sections 448/307, IPC. The appellant pleaded not guilty to the charges when they were read over and explained to him. Appellant, released on bail by I.O., surrendered to Court later and was granted bail and remained on bail till date of conviction. Appeal being admitted this Court also granted bail to appellant on 7-7-95.
6. Prosecution examined altogether six witnesses including the official witnesses PW-4 (Dr. R. Pal), PW-5 and 6 (both police personnels). Other witnesses examined being the informant (PW-1), his daughter (PW-2) and Bipul Das (PW-3), an independent person from the locality PW-5 only examined the stengun that was seized and PW-6 is the I.O.
7. The defence version, denial notwithstanding, from the trend of suggestions made to the material prosecution witnesses is that the informant and another person of his locality, named. Moinuddin Choudhary, were members of a gang responsible for smuggling of timber and on the date of occurrence when the appellant was chasing Moinuddin Choudhary from forest area, he took shelter inside the hotel of the informant and thereafter both of them attacked the appellant. During the tussle and scuffle that followed accidently shot went out which hit the appellant causing injury to his body and forehead and in the process the informant also sustained injury on his back. When questioned Under Section 313, Cr.P.C. vis-a-vis evidence against him the appellant made similar replies stating that there was scuffling due to which bullet hit him and his colleagues took him to his quarter after he was injured on his thigh" by bullet. But that he had no knowledge how informant was injured on his back.
8. The LCR was called for, forwarded and received I have examined the evidence and materials on record. Perused the impugned judgment. Following points for determination were recorded by learned Sessions Judge.
"(i) Whether on 8-3-92 at about 4-15 p.m. the accused person trespassed into the dwelling house-cum-hotel of the informant Sunil Chandra Malakar with the intention to fire gunshot at him?
(ii) Whether on the same day at the same time, the accused person fired a gunshot at Sunil Chandra Malakar with the intention to kill him?"
9. Learned Sessions Judge answered the points for determination, taking both points together for discussion, in favour of the prosecution and arrived at a conclusion that the appellant attempted to kill informant by bullet from his stengun and that he entered the hotel of the informant armed with stengun with an intention to kill the informant making himself liable for 'house-trespass' as well.
10. Since allegation of 'house-trespass' and 'attempt to murder have been closely inter-linked we may take both points together for discussion by way of reappraisal of evidence on record. As per the contents of the FIR, PW-1 was alone inside his hotel when the appellant (then unknown) entered the hotel, shoot at him injuring him on his back seriously. When appellant was preparing to fire the second shot, the informant jumped upon him and raised cries and alarm. On hearing his alarm and sound of gunfire neighbouring people came running and apprehended the appellant along with his gun and later on informant came to know the name and occupation of the appellant. Thus, the FIR, ext. I, is absolutely silent about any role played by the daughter (PW-2) or son of the informant in the incident/transaction. Even then, it can be dispensed with as a minor discrepancy by way of omission on the strength of (2002) 5 SCC 100, para 13, if his daughter deposing as PW-2 can corroborate him on material particulars, she being a natural witness, though interested. Law, in this respect is well-settled--
"FIR is not an encyclopaedia of the entire case and is even is not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker."
AIR 1992 SC 139, 1992 Cri L J 1952 Therefore, this omission to name PW-2 as a witness in FIR is not fatal and may be overlooked.
11. There is a categorical statement of fact on the body of the FIR, ext. 1, that neighbouring people came and apprehended the appellant along with gun PW-3 is the only such witness examined who has deposed on oath that he knows the informant and at the time of occurrence he was at market place, came hearing hue and cry after 15-20 minutes of the incident and from the road near the P.Q. could notice appellant lying on one side and informant on the other side inside of the hotel (stall) of PW 1 who was bleeding from his back and police came thereafter and seized earth smeared with blood and also a stengun and he signed, both seizure-lists. So, PW 3 is not a witness to the occurrence. The examination of PW 6 (I.O.) (on reading) was causal by prosecution and his cross-examination was also inadequate from defence. So, the entire risk to prove the accusation rested in this case only on the credibility of the informant, PW 1. His evidence will have to be evaluated, under the facts and circumstances above, with due care and caution PW 1 and his daughter PW 2 are the two witnesses to occurrence to prove the accusation beyond any shadow of doubt. PW 6 stated FIR was lodged at 9:00 p.m. (P.O. is 34 K.M. from the P.S., from record).
12. Forgetting for the time being what is there in the body of the FIR, PW 1 during his statement on oath before Court stated as follows. That in one afternoon at about 4:00 p.m. 3 years back when he was slicing and dressing vegetables inside his hotel room appellant Karunamoy Sarmah entered the hotel dressed in Khaki and armed with a gun and sat on a chair. PW 1 asked him whether he needed a cup of tea but appellant kept silent and put something into his gun when he heard sound of gunfire and looked at him. Then he noticed the gun aiming at him and fired the shot. That PW 1 then leaned aside and fell on the ground when the bullet hit his back. That PW 1 raised alarm when his daughter Anima (PW 2) came to the scene and cried out to her mother saying that her father has been killed. That thereafter he asked the appellant why he has shot him but appellant uttered 'son of the slave' ("Goolaamer Baachcha") and attempted to shoot again when PW 1, his daughter (PW 2) and son caught hold of the gun but appellant tried to wrest it from them when again there was sound of firing and appellant was hit by a bullet. That thereafter both the victim and appellant were taken to hospital by personnels of the forest department who came there. A cautious approach and scrupulous analysis of the evidence of PW 1 will reveal that there is lack of substantial corroboration from PWs 2 and 3 in so far the fact of shooting and apprehension of the appellant is concerned. In FIR it was stated that he alone jumped upon the appellant and raised alarm when neighbouring people came in his help and caught hold of the appellant but now he says that he, his daughter and son together grappled to snatch away the gun when shot went out to hit the appellant. The FIR was absolutely silent on the injury sustained by the appellant. FIR does not speak about any third or fourth shot being fired from the gun. Therefore, it is difficult to find and hold that PW 1 could reasonably and substantially corroborate the fact given in the FIR to give a clear picture of the genesis of the case, may whatever be the subsequent part of the transaction. So, we cannot conclude adequate corroboration of the facts on the FIR by PW 1, the informant.
13. Son of P. W. 1 was not called as a witness. P. W. 2 is his daughter aged 30 years. She deposed on oath that she was attracted to the scene on hearing alarm from her father (P.W.1), when she was engaged in discharging household duties, and on her arrival there she could notice her father lying on the ground and bleeding from back. She enquired of her father what had happened when the appellant only replied to her query saying that nothing had actually happened. P. W. 2 further states that her brother Samar also came and both of them started crying. That at that time appellant tried to shoot at her and she begged him not to do so when there was a sound and appellant fell down. Her evidence thus smacks of improbability and incoherence and is seriously conflicting with the statements given by P.W. 1. Evidence of P.W.2 thus cannot be reconciled in order to ascertain the truth in the story particularly on the genesis part of it. It is a different question that later part of the prosecution case about an act of both P.W. 1 and appellant sustaining injuries in scuffling could not be 'disproved'. It may be noted also that P. W. 2 stated that there was no other person excepting herself, her father, brother and the appellant when the occurrence took place. P. W. 2 cannot be believed without disbelieving P. W. 1 which we cannot do because P. W. 1 is the victim and star-witness. Naturally, the inevitable conclusion will be that P.W. 2 is not believable and she might not have witnessed the incident at all. P. W. 3 stated that he came to P.O. only after hearing hue and cry but after 15-20 minutes. So under all probability something is being concealed in the prosecution case and P. W. 1 becomes the isolated and only witness to the incident whatever the nature of it was.
14. This cloud of doubt gets further support and consolidation from evidence of the doctor, P. W. 4. P. W. 4 examined both the victim and the appellant at 9.30 p.m. on 8-3-1992 at P. H. C. On police requisition and found as follows :-
"For Hablldar Karunamoy Sharma
1. Lacerated wound 1 cm x 0.5 cm x Skin deep on left side of forehead.
2. Bullet wound on the anterior aspect of lower third of left thigh...........
For Sunil Malakar One lacerated wound 8 cm x 1 cm x Muscle deep on back, transverse direction with burnt margins.
P. W. 4 stated excepting injury No. 1 above other injuries were from firearms. P. W. 4 also noted an unusual circumstance and that victim Karunamoy Sharma (appellant) was under influence of liquor, intoxicated and was shouting and abusing. There was, in my view, redundant but inappropriate cross-examination of this P.W. 4 from defence. It seems defence also dared not to speak out the truth. Defence led no evidence to substantiate the story advanced by it by way of suggestion of P. W. 1 but admitted the presence of the appellant inside the hotel of P. W. 1 being armed with stengun. The stengun was duly seized by police. Suggestion notwithstanding there is absolutely no evidence to justify presence of the appellant in the hotel with arms. The scuffling with the gun is also admitted in clear terms. The doctor (P.W.4) has deposed that injury sustained by P.W 1 on his back is from firearm. The size of the injury was 8 cm x 1 cm x muscle deep which under no explanation can be regarded as superficial. Moreover, there is no evidence of any case of enmity or grudge for such assault. If the suggestion fails, it will fail definitely for non-production of evidence. Defence had taken no plea to invoke Section 85 of I. P. C. It could not also as by way of suggestion to P.W.4 defence had denied any case of appellant being under influence of liquor. But then evidence of P.W.4 will get priority over mere denial. So, it can be held that appellant was under influence of liquor at the time of the occurrence, whatever might have been the nature and type of the incident. Therefore, it is clearly is a case of mixed truth and falsehood. There was clear admission of an incident taking place.
15. In support of its contentions the defence cited two case laws. These are (1) 1976 Cri LJ 1736 : (AIR 1976 SC 2263); Lakshmi Singh v. State of Bihar and (2) 1992 Cri LJ 3596 : (AIR 1992 SC 1989), Makwana Takhat Singh Ratan Singh v. State of Gujarat. The former law deals with non-explanation of injury sustained by the accused at about the time of occurrence. It ruled that in such factual situation or circumstance court can draw following inferences -
"(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(ii) that the witness who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(iii) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case."
The law further states that in case of evidence of prosecution is of interested persons or where defence gives a version which competes in probability with that of the prosecution one, then the omission to explain injury on the person of accused person assumes a greater importance. But in the present case before us the facts are quite different. Here there was an admitted case of scuffling over a sten-gun and an accidental firing from the gun. So, it cannot be said that there was no explanation whatsoever. The major bullet injury on appellant has been clearly admitted and explained. And the injury which has not been specifically explained is so insignificant that ordinarily anybody would fail to notice such an injury. The other injury on the person of the accused/appellant was only of the size of '1 cm x 0.5 cm x Skin deep', simple in nature, caused by blunt weapon. Neither of the two injuries have anything to do with the genesis of the case. Defence suggested that both these injuries on appellant were caused due to scuffling over the gun. If that is so, naturally we will have to search for the cause of such a scuffling, bearing in mind that incident took place inside the hotel of the informant and there is nothing to show that informant was armed with any weapon, then hardly there is any case of asking for the explanation. Naturally, there would be a rebuttable inference that appellant took the law into his hand, whatever may be the nature of offence committed. In short, the explanation is not needed also as defence itself has given a statement as to how appellant sustained these injuries.
16. The later law relates to a question of exercise of right of private defence (The original citation was not made available to the court. Only a typed extract was submitted). It seems the law rendered in this context was of a fight between two groups of persons and court also observed that there was exercise of a case of right of private defence. Four out of five persons were acquitted by High Court. In that context Apex Court held that it was not proper to convict the appellant alone. Therefore, this law has no relevance under the facts and circumstance of the case in hand.
17. It is to be seen now, on these findings of facts as above said, whether any or which of the offence under I.P.C. was committed by the appellant. It will be quite probable that informant suffered the gunshot injury first otherwise there could have hardly been any necessity to scramble scuffle with the gun held by appellant. It is not practicable also for an unarmed man to seize/snatch the gun from the appellant and shoot at him first. Be that as it may, the evidence is not clear to show any case of an intention to 'attempt to murder' to bring the act of appellant strictly under the periphery of offence as defined Under Section 307 of I.P.C. P. W. 4 has deposed to prove the injury on person of P.W. 1 as simple, although caused by firearm Even. P.W. 3 proved the presence of appellant inside the hotel of the informant who was lying there injured. There is no evidence of animosity between the parties involved. Therefore, a clear case of house-trespass and voluntarily causing hurt is established on facts bringing the acts of appellant under the penal Section of 448 and 324 of I.P.C. and appellant cannot escape the implications there being no evidence to the contrary, suggestion notwithstanding.
18. In result, the appeal is partially allowed. Conviction Under Section 307 I.P.C. is set aside and charge is slided down to one Under Section 324 of I.P.C. on the reasons as stated and on the strength of enabling Section of 222 of Cr. P.C. and appellant is convicted accordingly under Section 324 of I.P.C. also maintaining the conviction rendered by trial Court Under Section 448 I.P.C. as it is.
19. Coming to question of the sentences. one passed for offence Under Section 448 I.P.C. is maintained. The appellant/accused is sentenced also Under Section 324 of I.P.C. to R. I., for six months and a fine of Rs. 1000/- (One thousand) and in default thereof, to R. 1. for one month. Fines, if realised, to be paid to victim of the crime, i.e. P. W. 1, as compensation.
20. The appellant being member of a disciplined force power of Court under Probation of Offenders Act is not invoked.
21. Seized articles are released from seizure. Stengun to go back to the department and other unimportant things destroyed/disposed of as needed. Trial Court to pass necessary orders to that effect, if needed.
22. Bail granted to appellant by this Court is cancelled. Appellant to surrender to Trial Court within 30 days from today to serve out the sentences and pay the fines. Order passed earlier suspending sentence gets modified accordingly. Sentences to run consecutively and Court below to execute the sentence as per law.