Gauhati High Court
Shri Choge Chen vs State Of A.P on 5 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 203
Author: Manish Choudhury
Bench: Manash Ranjan Pathak, Manish Choudhury
Page No.# 1/26
GAHC010209992015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 40/2015
1:SHRI CHOGE CHEN
VERSUS
1:STATE OF A.P.
2:DORJEE TSERING
S/O-KEJANG YUTEN
VILL-BETCHILLING
CAMP
KALAKTANG
P.S.-KALAKTANG
DIST.-WEST KAMENG
ARUNACHAL PRADESH
Advocate for the Appellant : Ms. Bijita Sarma.
Amicus Curiae
Advocate for the Respondents : Mr. N.N.B. Choudhury.
Senior Government Advocate Arunachal Pradesh.
Date of Hearing : 31.01.2019
Date of Judgment : 05.04.2019
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER (CAV)
(Manish Choudhury, J.)
The judgment and order dated 14.02.2015, passed by the learned Addl. Sessions Judge, Yupia, Itanagar, Arunachal Pradesh in Sessions Case No. 128/2002 (FTC) (G.R. Case No. 43/1985), convicting the accused-appellant under Section 302/34 of the Indian Penal Code (IPC, in short) and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- (Rupees one thousand), in default, to suffer further simple imprisonment for a period of 3 (three) months, is the subject matter of challenge in the instant jail appeal.
2) The prosecution case is that on 11.05.1985, a complaint in writing was submitted before the Circle Officer, Kalaktang, West Kameng district by one Dorjee Tsering of Betchilling village, against 4 (four) persons viz. Chochung, Choge Chen, Tsering Dorjee and Nowang Norbu stating that on 11.05.1985 at about 02-00 hours, the above accused persons attacked his family and killed his wife and daughter. It was further stated that the complainant was also beaten by them but he somehow managed to escape and that the accused persons also burnt his house and all belongings.
3) On receipt of the above complaint, the Circle Officer forwarded the complaint to the Officer-in-Charge, Kalaktang Police Station with a note to enquire and submit the report by booking the culprits and registering a case against them as deemed fit. On receipt of the said written complaint from the Circle Officer, Kalaktang, the Officer-in-Charge, Kalaktang Police Station treating the said complaint as the First Information Report (FIR), registered a case being Kalaktang Police Station Case No. 02/1985 under Sections 302/436/457/34, IPC. A G.R. case being G.R. Case No. 43/1985 was also, correspondingly, registered. Upon registration of the said case, S.I. Tas Tako, the then Officer-in-Charge, Kalaktang Police Station took up the investigation as the Investigating Officer (I.O.) himself.
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4) In the course of investigation, the I.O. visited the place of occurrence (P.O.), drew a rough sketch map of the P.O., held inquest over of the dead bodies of the deceased Namge Bhuti and Nawang Eton and sent the dead bodies for Post Mortem examination. Few materials were also seized viz. (a) wearing apparels containing suspected human blood stains from the possession of accused, Tsering Dorjee and Choge Chen; (b) one pair of half burnt clothing containing suspected human blood from the P.O.; (c) one stone containing suspected human blood. Those seized materials were sent to the Forensic Science Laboratory, Guwahati for expert opinion.
5) In the course of investigation, the I.O. arrested the accused Choge Chen (A-1), Chochung (A-2), Tsering Dorjee (A-3) and Nowang Norbu (A-4) and forwarded them to the Court of Judicial Magistrate, Second Class, Kalaktang for recording their confessional statements and their confessional statements under section 164, Code of Criminal Procedure, 1973 (CrPC, in short) were recorded on 13.05.1985.
6) Upon completion of investigation, the I.O. submitted a charge-sheet under section 173, CrPC on 02.01.1986 finding a prima facie case against the afore-mentioned four accused persons under sections 302/436/325/34/120B, IPC and also forwarded the original case diary and all other relevant documents to the Court. From the Court of Judicial Magistrate, Second Class, Kalaktang, the case on 24.05.1985 stood transferred to the Deputy Commissioner, Bomdila for the purpose of trial as the offences under which the charge-sheet was submitted were exclusively triable by the Court of Sessions. On 24.01.1986, the Court of Judicial Magistrate, First Class, Bomdila released the four accused persons on bail. On appearance of the accused persons before the Court, the copies were supplied to the accused persons, A-1, A-2, A-3 and A-4 under section 207, CrPC and, thereafter, the case records of G.R. Case No. 43/1985 were transmitted to the Court of Sessions by its order dated 21.07.1986 in terms of the provisions of section 209, CrPC. It transpires that in pursuance of a Government notification dated 19.05.1985, the then Deputy Commissioner transferred the case to the Court of Additional Deputy Commissioner, Bomdila, West Kameng district for trial and disposal. The learned Additional Deputy Commissioner, thereafter, appointed the Public Prosecutor and the defense counsel from the Government panel of lawyers.
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7) On appearance of the accused persons, after hearing and upon perusal of the materials on record, charges were framed under sections 302/324/436/34, IPC against the accused persons on 17.08.1987. On the charges being read over and explained to them, the accused persons pleaded not guilty and claimed to be tried and the case proceeded for trial. Later on, the case records were transferred to the Court of Additional Sessions Judge (FTC), Yupia, Itanagar from the Court of Deputy Commissioner, Bomdila, West Kameng district vide a notification dated 23.08.2002 and after receipt of the case records, the Additional Sessions Judge (FTC), Yupia, Itanagar registered the case as Sessions Case No. 120/2002 (FTC).
8) In the course of the trial, the prosecution side had examined 11 (eleven) number of witnesses on its behalf including the I.O., the Doctor who conducted the Post-Mortem Examination and the Forensic Expert and also exhibited a number of other documents. The defense side did not, however, adduce any evidence but cross-examined the prosecution witness. Thereafter, the accused persons were examined under section 313, CrPC. After closure of evidence and after hearing the arguments advanced by the parties, the learned Additional Sessions Judge (FTC), Yupia, Itanagar (hereinafter also referred to as the Trial Court) passed the judgment and order dated 14.02.2005 which has been assailed in the instant jail appeal by one of the convicted accused persons viz. Choge Chen (A-1). By the impugned judgment and order dated 14.02.2005, the learned Trial Court found all the accused persons guilty for commission of offence under sections 302/34, IPC and they have been sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 1,000/- each, in default of payment of fine, to suffer simple imprisonment of 3 (three) months each. During the pendency of the trial, one of the accused persons, Nowang Norbu (A-4) expired and the proceeding stood abated against him.
9) We have heard Ms. Bijita Sarma, learned Amicus Curiae for the accused-appellant and Mr. Niranjan Narayan Bhuyan Choudhury, learned Senior Government Advocate for the State of Arunachal Pradesh.
10) Ms. Sarma, learned Amicus Curiae, has submitted that the evidence led by the prosecution side were deficient in many respects and the same were not sufficient to implicate and convict the accused persons, more particularly, the present accused-appellant.
Page No.# 5/26 She submits that the statements of the accused persons recorded under section 164, CrPC were not properly recorded in accordance with law. In view of the abject violation of the procedure prescribed under the CrPC and the various pronouncements of the Apex Court and this Hon'ble Court, the same were inadmissible. Furthermore, there were inconsistencies and contradictions between the testimonies of two vital witnesses viz. P.W. 2 and P.W. 3, who claimed to be eye-witnesses to the alleged incident. It has been established that the entire incident had happened in the night. In such a situation, it could not have been possible for these witnesses to give a description as regards what had happened. Thus, the learned Trial Court had failed to appreciate the evidence in the proper perspective and therefore, the judgment and order of conviction and sentence of the Trial Court is required to be set aside and quashed.
11) Mr. Choudhury, learned Senior Government Advocate, has submitted that the incident was of double murder and the prosecution side had been able to bring the evidence on record which had gone to prove the case beyond all reasonable doubts against the accused persons including the present accused-appellant. There were no serious infirmities in the testimonies of the two prosecution witnesses, P.W. 2 and P.W. 3, and their testimonies had been amply corroborated by other evidence. The accused persons being known to the said two prosecution witnesses from earlier, it cannot be accepted that the accused persons could not have been identified by these prosecution witnesses just because there was darkness at the relevant point of time. The confessional statements of the accused persons are required to be considered along with the other evidence on record. In such view of the matter, the conviction and sentence of the present accused-appellant is not required to be interfered with and the appeal is deserved to be dismissed.
12) We have considered the submissions made by the learned counsels for the parties and also perused the records. In order to appreciate the submissions of the parties and before proceeding further, it is necessary to examine and scrutinize the evidence brought on record.
13) P.W.1, Shri T. Tamuk, was serving as the Circle Officer, Kalaktang on 13.05.1985. On 13.05.1985, the Officer-in-Charge, Kalaktang Police Station brought the accused persons before him. He deposed that when the accused persons were produced before him, he asked Page No.# 6/26 them whether they wanted to make confessions or not and the accused persons answered in the affirmative. He stated that he gave the accused persons sufficient time for reflection and informed them that they were not bound to make confessional statements. He stated to have explained to them the implications of the confessional statements. During the time of reflection, he stated to have kept the accused persons in his office, guarded by his P. I. He gave them about 1 to 2 hours for reflection and thereafter, he recorded the statements of the accused persons. After recording the statements, he read over and explained to each of the accused persons individually what he had recorded. He exhibited the confessional statements of Choge Chen (A-1) as Exhibit-4; of Chochung (A-2) as Exhibit-5; of Tsering Dorjee (A-3) as Exhibit-6 and of Nowang Norbu (A-4) as Exhibit-7. In all these statements, the thumb impressions of the accused were taken by him. At the time when he recorded the statements, the schedule form for recording the confessional statements was not available in his office at Kalaktang and he recorded the statements on plain papers. In his cross-examination, P.W.1 stated that on 11.05.1985, he directed the Officer-in-Charge, Kalaktang Police Station to register the case against the accused persons and to arrest them. He further deposed that the police brought the accused persons before him. After forwarding the accused persons before him, the police remained outside the Court. He was aware of the prescribed form and its contents. He knew the fact that it was to be recorded as to how the accused persons were brought to the Court and time of their arrival, etc. in a prescribed form. He also knew that as per the prescribed form, the Court was required to ask certain questions to the accused persons and to write their answers separately. He did not ask the accused persons the questions required to be asked as per Column V and VI of the prescribed form. He was also aware that all the accused persons were to be provided 3 (three) hours time for reflection. He did not mention in any statement that they were given time for reflection. He did not try to obtain the prescribed form required for recording the confessional statement. At the time of recording confessional statements, he recorded that "he believed that these confessions were voluntarily made". The accused persons gave their statements in Assamese and he recorded their statements in English. He denied the fact that the accused persons were not given sufficient time for reflection and the confessional statements were not voluntary. He denied the fact that he did not record the confessional statements of the accused persons as per the prescribed procedure. He deposed that after recording the confessional statements of the Page No.# 7/26 accused persons they were handed over to the police.
14) P.W.2, Dorjee Tsering was the complainant and the husband of the deceased, Namge Bhuti and the step-father of the other deceased, Nawang Eton. He is a resident of village- Betchilling, Police Station - Kalaktang, District - West Kameng, Arunachal Pradesh where the incident of alleged double murder had happened. He stated that he had a farm just below the village Betchilling. He was told by the accused, Nowang Norbu (A-4) that he should go to the farm to protect the crops which were damaged by cattle. Accordingly, he went to the farm and stayed there with his son, Kejang Wangdi (P.W.3) for one night. That night, Nowang Norbu (A-4) came there for fishing and went back. P.W.2 stated that on the next day, his wife, Namge Bhuti and her daughter, Nawang Eton came and joined him along with his other son i.e. Lobsang Yashi in the farm. They were 5 (five) in the farm on that night. In the morning of that day, the accused persons came to his farm and told them that they were going to Udalguri and asked him to look after their cattle also and after about 3 (three) days, they came back. Tsering Dorjee (A-3) gave him some betel-nuts but the other accused did not talk to him and 2 (two) days thereafter, at about 02-00 hours at night, all these 4 (four) accused persons entered into his farm land and house. The accused persons, Chochung (A-2) and Nowang Norbu (A-4), started beating him. Chochung (A-2) who carried a stick, beat him with it. Nowang Norbu (A-4) caught hold of his hands and Choge Chen (A-1) gave fist blows on his face. As a result, he sustained injuries all over his body including lacerated injuries on his head and other parts. The Gaon Bura, Karma Norbu also came along with the accused persons but he did not enter into the house. While he was being beaten, his wife was also being beaten simultaneously with stick and stone by Chochung (A-2) and Nowang Norbu (A-
4). Tsering Dorjee (A-3) also hit his wife with stone and her head was injured severely and she died afterwards. Nawang Eton, aged about 4/5 years, was his wife's daughter from her previous husband. P.W.2 deposed that Nawang Eton was also beaten and injured in the same night and died due to injuries. As he was beaten severely he fell unconscious and thereafter, when he felt the heat of fire he regained his senses and saw that his house was set on fire. He saw that Chochung (A-2) and Nowang Norbu (A-4) were standing at the door with sticks in their hands and his wife was lying dead inside the room. Then, he jumped through the fire to the backdoor and went outside. Both of his sons somehow managed to go out of the Page No.# 8/26 burning house. He did not see how Nawang Eton was killed. His entire farmhouse was completely burnt and all his clothes and belongings were destroyed in the said fire caused by the accused. Thereafter, he somehow managed to reach Ankaling village and he was bleeding profusely at that time. He managed to send one labour to report the matter to the Circle Officer, Kalaktang and the Circle Officer along with the police came to Ankaling. He was, thereafter, taken to Kalaktang Health Unit where he was kept and treated for about 22 (twenty-two) days. He stated to have reported the matter to the Circle Officer in writing. In his cross-examination, P.W.2 stated that in that night, they all slept at 24-00 hours. He stated that on being beaten, he became senseless. He saw who had beaten his wife and her daughter. He mentioned that the night was a completely dark night. He denied that what he stated in his deposition was not stated to the police during the investigation. He stated to have told the I.O. during investigation that he woke up at the shout of his wife and became senseless. He had not seen the dead bodies of his wife and her daughter personally. He did not see who set fire to his house.
15) P.W. 3, Kajang Wangdi is the son of one Chsetan Dhruba. The deceased, Namge Bhuti was his mother and the deceased, Nawang Eton was his sister, whose nickmame was Chilimu. He deposed that both his mother and sister were killed about 3 (three) years ago. On that night, all 5 (five) of them i.e. (1) he, (2) his mother, Namge Bhuti, (3) his step father, Dorjee Tsering (P.W. 2), (4) his sister, Chilimu and (5) his brother, Lobsang Yashi, were sleeping in the house inside the farm. At about 02-00 hours at night, the accused persons viz. Choge Chen (A-1), Chochung (A-2), Tsering Dorjee (A-3), Nowang Norbu (A-4) and Korma Norbu came to their house. Korma Norbu stayed outside the door with a stick in his hands and the other 4 (four) entered into the house. He was sleeping with his mother. The 4 (four) accused persons then started to assault his father. He woke up and saw that Nowang Norbu (A-4) caught hold of his father and Chochung (A-2) and Choge Chen (A-1) started beating his father. Choge Chen (A-1) gave fist blows on the face of his father and Chochung (A-2) was beating his father with a danda. Thereafter, Chochung (A-2) and Choge Chen (A-1) assaulted his mother with danda on the head and chest and his mother died on the spot. Thereafter, the accused persons went out of the house and Choge Chen (A-1) took his sister Chilimu. Choge Chen (A-1) held his sister by the legs and smashed her on the wooden steps of the Page No.# 9/26 house and as a result, Chilimu also died on the spot. Thereafter, Choge Chen (A-1) and Chochung (A-2) set fire to their house. When the house was set on fire, his father, Dorjee Tsering (P.W. 2) was lying unconscious inside the house and his mother was also lying dead inside the house. He was also inside the house but when the house was set on fire, he somehow came out of the house by jumping through the door. His brother as well as his father also somehow jumped out of the burning house. When the house was burning, his mother did somehow rolled and came out of the house. Thereafter, he and his father escaped to Ankaling village and went to one Sangje's house and through Sangje, a letter was sent to the Circle Officer, Kalaktang. In the next morning, his brother reached the village and said that he was hiding under the bamboo grove. In his cross-examination, P.W. 3 stated that there was only one room having one door in the house located at their farm. The night of the incident was a dark night. He deposed that he fled away before his father and he was hiding behind a stone which was about 30/40 yards away from the house. After fleeing away from the house, he did not see what had happened in the house. He denied that he did not state before the I.O. that he saw Nowang Norbu (A-4) catching hold of his father and Choge Chen (A-1) and Chochung (A-2) were beating his father. He also denied that he did not tell the I.O. that Choge Chen (A-1) and Chochung (A-2) assaulted his mother with stick on her head and chest and that Choge Chen (A-1) took his sister Nawang Eton by her legs and smashed her on the wooden steps of the house. He further denied that he did not tell the I.O. that Nawang Eton had died on the spot. He denied that it was not told to the I.O. that his father was lying unconscious inside the house and that his father came out of the house somehow when it was burning. He also denied that he did not state before the I.O. that when the house was burning, his mother did not die and she somehow crawled and rolled out. He denied the suggestion that the accused persons did not kill his mother and sister and he had not seen the actual occurrence.
16) P.W. 4, Nima Norbu is a resident of village Betchilling. He knew the accused persons. He, in his examination-in-chief, deposed that about 3 (three) years ago when he was proceeding to his cultivation land, he met the Circle Officer, the Officer-in-Charge of Kalaktang Police Station, the Prosecuting Inspector and another medical staff on the way. He was requested to accompany them to Khelliphu village and Kejang Yeshi (P.W. 5) was also with Page No.# 10/26 him. When they reached Khelliphu village, 2 (two) dead bodies were found lying behind one farm house on being shown by Choge Chen (A-1) and Tsering Dorjee (A-3). The dead bodies, lying in the jungle, were of Namgo Bhuti and her female child, whose name he did not know. In his cross-examination, he stated that about 5 villagers assembled on the spot and about 4/5 police personnel were already there on the spot near the dead bodies when they reached. He denied that he did not tell the police that Choge Chen (A-1) and Tsering Dorjee (A-3) had shown the dead bodies.
17) P.W. 5, Kejang Yeshi is also a resident of Betchilling village. He knew the accused persons. He deposed that one day, about 2/3 years ago, he was asked by the Circle Officer, Kalaktang, the Officer-in-Charge of Kalaktang Police Station and one Medical Officer to accompany them to Khelliphu village and accordingly, he went there and found 2 (two) dead bodies in the village jungle. The dead bodies were of Namgo Bhuti and her child whose name he forgot. Saga (sic) and Tsering Dorjee (A-3) showed them the dead bodies and they came along with the police personnel. In his cross-examination, P.W. 5 stated that police personnel were already there before they reached the spot. The police called him to the place/site where dead bodies were lying and they showed the dead bodies.
18) P.W. 6, D. Lollen was posted as Supervision Officer (Circle Office Inspector) at Kalaktang on 15.05.1985. On that day, he was on duty to supervise and he was a witness to the seizure list whereby one empty bottle containing some amount of kerosene, half burnt clothes containing suspected human blood stains and one wood suspected to be a weapon of offence, were seized and the seizure list (Exhibit-10) was prepared in his presence. He was also a witness to the seizure of one sweater containing suspected human blood stain spots and one full shirt also containing suspected human blood. The seizure list (Exhibit-11) was prepared in that respect on the spot and in his presence by the I.O. In his cross-examination, P.W.6 stated that the distance of the place of occurrence from the Police Station was about 30 Kms. He stated that the shirt (Exhibit-11) was seized from the place of occurrence in his presence. The place of occurrence was an isolated place, far from the village, and was surrounded by jhum cultivation and one thatched house, burnt down by fire.
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19) P.W. 7, Choi Jang is also a resident of Betchilling village. He deposed that he knew the accused persons of the incident that occurred about 3 (three) years ago. In the incident that occurred in the village, Namgo Bhuti and her child were killed. He did not know when and who killed them. The police asked him to identify the accused and he said that they were from his village.
20) P.W. 8, Dorjee Rhidar deposed that he knew the accused persons who lived in Betchilling village but he did not know their names. He stated that he did not know anything about the incident.
21) P.W. 9, Dr. Dipankar Das deposed that in May, 1985, he was posted at Kalaktang as Medical Officer. On 13.05.1985, he examined one Dorjee Tsering of Betchelling village on police requisition and on examination, he found the following injuries on the person of Dorjee Tsering, aged about 40 years, (i) a cut injury 2 ½'' X ½'' over the right temple; (ii) a cut injury ½"X ½" over the right ear; (iii) a bruise over the occipital region, ½"x ½"; (iv) a bruise ¼"X ½'' over the right angle of the mouth; & (v) a bruise over the right ear.
Upon examination he found the injury Nos. 1 and 2 as grievous in nature and the rest three simple. The injuries were one day old. He further opined that the weapon used for causing these injuries was probably blunt. He exhibited the injury report in respect of Dorjee Tsering (P.W. 2) as Exhibit - 1.
On the same day, he also held the post-mortem examination over two dead bodies- one of Namge Bhuti, a female of about 40 years, and the other was of Nowang Eton, a girl child aged about 4 years. The dead bodies were forwarded by the Officer-in-Charge, Kalaktang Police Station. On examination of the dead body of Namge Bhuti, he found that the body was decomposed with maggots crawling over the body. There was first degree burn of hand, palm of the body and face. The skull was fractured with decomposed matters oozing out. There was also a cut injury over fracture size 16'' x 6'' over the frontal area. On dissection and opening the skull, he found the bone in the interior posterior direction slightly to the right of the mid-line. The membrane and brain matters were lacerated. There was no fracture of the bones and joints. The thorax and the abdomen were completely healthy. Some bloods were Page No.# 12/26 found to have oozed from the mouth. All the organs were healthy except the uterus which had a fetus approximately two months old. In his opinion, the death was due to several contusions and lacerations which caused failure of all vita contras (sic) and the death was instantaneous. He deposed that after examination, the Post-Mortem Examination Report (Exhibit-2), was prepared on 13.05.1985 where his opinion was concurred by Dr. B.N. Kakoti, the then District Medical Officer (D.M.O.), Bomdila.
He also deposed that on the same day i.e. 13.05.1985, he carried out the post-mortem examination in respect of Nowang Eton. On examination, he found the body decomposed. There was a round gaping wound of size 2"x2"x6" on the centre of the fore head. The skull in that area was broken and some decomposed brain matters were found to have oozed out of the wound. The membranes and the brain matters in that area were torn. There were bruises scattered all over the back. The thor and abdominal cavity including its viscera, were found normal. As regards bones, muscles and joints the skull in the lob, were found torn and depressed fracture was seen. In his opinion, the death was due to cardio respiratory arrest as a result of cerebral shock and contusions. After examination, he prepared the Post-Mortem Examination Report (Exhibit-3) on 13.05.1985 wherein Dr. B.N. Kakoti, District Medical Officer (D.M.O), Bomdila had also concurred with his opinion. He further deposed that all the injuries in the case of Namge Bhuti were ante-mortem and caused by sharp and dangerous weapon. In the case of Nowang Eton, he found the injuries anti-mortem in nature and caused by sharp and dangerous and blunt weapon. In his cross-examination, P.W. 9 stated that the dead bodies were found decomposed at the time of examination.
22) P.W. 10, Sri P.K. Kalita deposed that on 28.05.1985, he was a working as Scientific Officer, Serology Division, Forensic Science Laboratory (FSL), Assam. On that day, the Director, FSL viz. Dr. K. Goswami received one paper sealed box from the Magistrate, First Class, Bomdila, West Kameng District, Arunachal Pradesh vide his Memo No. Jud-/A-2/85/86 dated 20.05.1985 in connection with Kalaktang Police Station Case No. 2/1985. Accordingly, the Director handed over the same to him for examination and report. After opening the sealed paper box he found the following - (Exhibit-5) Page No.# 13/26 (1) One woolen full sleeve red and white sweater having suspected blood stain on both the sleeves (Sero No. 172/85);
(2) One dark blue coloured synthetic full sleeve full open jacket having stain of suspected blood in the form of small drops which are scattered on it (Sero No. 173/85);
(3) One dirty soiled stone having suspected blood stain (Sero No. 174/85); (4) One piece of half burnt cloth said to have contained suspected blood (Sero No. 175/85); and, (5) Some soil mixed with suspected blood (Sero No. 176/85).
Result of examination-
(1) Human blood could be detected Sero Nos. 173/85, 174/85, 175/85 and 176/85;
(2) The origin of blood found in the exhibit Nos. 173/85 could not be determined due to insufficient test material;
(3) Human blood of group 'A' could be detected in Exhibit - Sero No. 172/85 and Sero No. 175/85 and the group of blood in Exhibit - Sero No. 174/85 and Sero No. 176/85 could not be given due to insufficient test material.
He submitted the report vide No. FSL.105/85/85/8118/Sero-653. Exhibit-8 is the forwarding letter from the Director-cum-Chemical Examiner to the Govt. of Assam, Forensic Science Laboratory (FSL), Assam, Guwahati. Exhibit-9 is the Forensic Report of Kalaktang Police Station Case No. 2/1985 with his signature as Exhibit 9(a) on the report. In his cross- examination, he stated that he examined Exhibit-9 by using the anti-Human globoin group, which was supplied by Serology Secretary, Govt. of India. He further deposed that there is a difference between human blood and animal blood. At the time of examination it was 11.05.1985, he did not examine the blood as to find out the date of occurrence. He did not detect, because what was required in the investigation as was given to them and accordingly, he had done the examination.
23) P.W. 11, Shri Tas Tako was the Investigating Officer (I.O.) of the case. He, in his examination-in-chief on 25.11.2004, deposed that in the year 1985, he was serving as Sub- Inspector and was posted as the Officer-in-Charge, Kalaktang Police Station. On 11.05.1985, a complaint was received from one Dorjee Tsering (P.W.2), through the Circle Officer (P.W.1), Kalaktang, in respect of murder of his wife and daughter. The said complaint was made against Choge Chen (A-1), Chochung (A-2), Tsering Dorjee (A-3) and Nowang Norbu (A-4) and he exhibited the same as Exhibit-12, wherein the endorsement of the Circle Officer, Page No.# 14/26 Kalaktang was available directing for registration of the case against the accused named therein. On receipt of the said complaint, he registered Kalaktang Police Station Case No. 2/1985 under Sections 302/431/457/34, IPC. He had visited the P.O. at Betchilling which was at a distance of 15-20 Kms from the Police Station. The P.O. was at an interior place having no road communication. He found the burnt down house (hut) of the complainant. Then he searched for the dead bodies, but he could not find any. Thereafter, he arrested the 4 (four) named accused persons from the market of Kalaktang, on being identified by the local constable who knew them. He brought the accused persons to the Police Station for interrogation and on interrogation, he came to know that the dead bodies of the mother and the daughter were thrown out by them near the river. The body of the mother was at a distance of 50-60 metres and that of the daughter was at about 80 metres. He drew a rough Sketch Map (Exhibit-13) wherein, he identified roughly the portions where the dead bodies of the mother and the daughter were found. He deposed that the accused persons first killed the small child and threw the dead body. Thereafter, the accused persons burnt down the house. The woman was then half burnt and fully naked. He had taken Choge Chen (A-1), and Tsering Dorjee (A-3) to the place and they helped him to find the dead bodies. He further deposed that the complainant sustained injuries on his person due to the assault by the accused persons and prior to the burning down of the house, the complainant was injured. He further stated that he also arrested Karma Norbu. He had sent the dead bodies of Namge Bhuti and her daughter for post-mortem examination. At that time he found the complainant was not in a position to walk. He further deposed that he sent all the arrested accused persons to the Court of Magistrate for the purpose of recording their confessional statements and the Magistrate had, accordingly, recorded the statements on 13.05.1985. Exhibiting the confessional statements, he stated that the same bore the thumb impressions of the accused persons who confessed as regards the involvement in committing the offence. He, however, stated that Karma Norbu did not confess on 13.05.1985 and Karma Norbu's statement had been exhibited as Exhibit-13. He further stated that during the course of investigation, he made seizure of some articles from the spot as well as from inside the burnt house. He exhibited one seizure list as Exhibit-10 pertaining to seizure of one whisky bottle containing some amount of kerosene oil inside as well as one soiled stone suspecting to have human blood stains. He also exhibited Exhibit-10 as regards seizure of one piece of half burnt cloth, Page No.# 15/26 one slightly burn metal ring from the spot. Vide Exhibit-11, he made seizure of one red and white strip shirt having blood stains and also a blue colour full shirt belonging to Choge Chen (A-1), containing suspected human blood and those were seized from the bodies of the two accused persons in presence of witnesses. Those seizures were made in the police station after their arrest. He stated that he seized three wooden sticks containing about 100 gms of soil and suspected human blood from the spot on 12.05.1985 vide seizure list, Exhibit-14. Exhibit-15 was an identification memo with regard to the identification of the seized danda. Choge Chen (A-1) and Tsering Dorjee (A-3) identified the items seized by him (P.W.11) at Sl. No. 1, 2 and 3 respectively of Exhibit-12 in presence of witnesses. He sent the seized articles to the FSL and on receipt of the reports, forwarded it to the Magistrate. Having found a prima-facie case established against all the 5 (five) accused persons under Sections 302/436/325/34/120B, IPC, he submitted a charge-sheet being Charge-Sheet No. 1/1886 (Exhibit-16) in connection with Kalaktang Police Station Case No. 2/1985 on 02.01.1986.
In his cross-examination, he deposed that he held inquest on the dead bodies and submitted the inquest reports prepared on plain papers to the Court. He deposed that from the P.O., the body of the mother was found at a distance of 50-60 metres and that of the daughter was at a distance of about 80-90 metres. He did not find any injury on the persons of the 5 (five) accused persons. The seized materials like soil and stone from the place of occurrence had blood and he sent all the seized articles to the FSL for examination. As per the Expert Reports, the same was said to have contained human bloods. Vide Exhibit-12, a metallic ornament was seized which had doted decoration and the same was supposed to have belonged to the deceased. He did not send the 3 (three) wooden sticks, seized vide Exhibit-14 from the P.O. for finger prints but the same were identified by the accused persons themselves. He testified that the accused had stated that they used 3 (three) sticks and also identified them. All the 4 (four) accused persons were arrested immediately and 1 (one) more was arrested during investigation. He denied the suggestion that the wife and the daughter were killed by the complainant. He also denied the suggestion that the complainant had lodged a false complaint. At first, he sent the injured complainant to the Public Health Centre and he had recorded the statement of the complainant only after the discharge of the complainant from the Public Health Centre, as he could not record his statement during the Page No.# 16/26 treatment of the complainant. He further testified that as the incident was one of the violent crimes, occurred 20 years ago, he remembered the incident vividly.
24) In the instant case, the prosecution stated to have recorded the confessional statements of the 4 (four) accused persons namely viz. A-1, A-2, A-3 and A-4 under Section 164, CrPC on 13.05.1985 before the Magistrate. P.W. 1 had stated that the accused persons were brought before him to make confessions. He stated that he gave the accused persons sufficient time for reflection for about 1-2 hours. From his testimony, it is, thus, established that on 13.05.1985 the accused persons were made to appear before the Magistrate for recording of their confessional statements after registration of Kalaktang Police Station Case No. 2/1985 on 11.05.1985. The accused persons were arrested immediately after the registration of the case. P.W.1 was well aware that he had to ask the accused persons and to find out from them by asking questions as to whether they were making the confessional statements voluntarily or not and as to whether they were forced, influenced, induced or coerced to make such statement. But it is evident that P.W.1 did not ask the accused persons the questions required to be asked as per the provisions of Sections 164, CrPC, though he was quite aware of the fact that it was incumbent on his part to ask those questions. Though he stated to have examined the accused persons after making them aware about the implications of the confessional statements, but the record does not show and corroborate the said testimony. From the testimony of P.W. 1, it is also established that after recording of their confessional statements, the accused persons were handed over to the police. We have perused the confessional statements i.e. Exhibits 4 to 7. It appears that in those exhibits, the thumb impressions of the accused persons were taken by P.W. 1. P.W. 1 stated that the accused persons gave their statements in Assamese, but he recorded their statements in English. It is also not evident from Exhibits 4 to 7 that the Magistrate had read over the contents of the statements and the makers of the statement had accepted the same as correct.
25) There are certain mandatory requirements which a Magistrate imperatively has to follow while recording a confessional statement of an accused under section 164, CrPC. In the event those requirements are not adhered to, the admissibility of such confessional statement shall not be accepted. In Shivappa vs. State of Karnataka, reported in (1995) 2 SCC 76, the Hon'ble Supreme Page No.# 17/26 Court considered the admissibility or otherwise of a confessional statement under section 164, CrPC and the procedural requirements required to be mandatorily followed in respect of such confessional statement. It was therein held :-
"6. From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused u/s 164 CrPC is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused u/s 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of Sub-section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declines to make the confession, he shall not be remanded to police custody.
7. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a 'voluntary' statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with."
26) In view of such mandatory procedural requirements, if we examine the testimony of P.W. 1, the Magistrate who recorded the statements of the 4 (four) accused persons under Page No.# 18/26 section 164, CrPC we find that the contemporaneous records do not show that the Magistrate had made any effort to find out as to why all the accused persons wanted to make the confessions or as to what led all of them to make the confession. The records do not show and it was also not stated by him that he made any searching enquiry to find out as to whether all the accused persons were out of the zone of influence by the police. On the other hand, the testimony of P.W. 1 is to the effect that after forwarding the accused persons before him, the police remained outside the Court and the accused persons were guarded by the P.I. The Magistrate should have taken care to ascertain that there was no undue influence or pressure on the accused persons exerted by the police during their custody or they were not tortured during such custody to extract the confessions. The Magistrate in his deposition as P.W. 1 stated that he asked the accused persons as to whether they wanted to make confessions and the accused persons confirmed that they were making the statements voluntarily. But the records of confession do not show that the specified questions were put to the accused persons whether any physical or mental pressure were put on them by the police. It is pertinent that the accused persons were made to make their confessional statements immediately after their arrest and after recording of their confessional statements, the accused persons were handed over to the police. There was, therefore, every possibility for the accused persons to have been physically and/or mentally pressurized for making confessional statements on some assurances. It is apparent that the Magistrate did not make any serious attempt to ascertain the voluntary character of the confessional statements. From his testimony what is further demonstrated that the Magistrate did not lend any assurance to the accused persons that they would not be sent back to the police custody in case they did not make the confessional statements. There was no evidence led by the prosecution that the accused persons were produced from jail custody. As the prosecution, from the evidence on record, has failed to establish that real endeavours were made by the Magistrate to ascertain the voluntary character of the confessions, it, thus, appears to us that the confessional statements of the 4 (four) accused persons recorded under section 164, CrPC cannot be accepted to be voluntarily made. The manner of holding the enquiry to ascertain the voluntary nature of the confession does not inspire the confidence to come to a finding that the confessional statements were voluntarily made. It is, therefore, not safe and prudent to act upon the confessional statements of the accused persons including that of the accused-
Page No.# 19/26 appellant. In such situation, the confessional statements are required to be ruled out of consideration to determine the guilt of the accused persons including the present accused- appellant. As such, the acceptance of such confessional statements by the Trial Court and opining that the same were corroborated by the testimonies of P.W. 2 and P.W. 3 to reach the finding of guilt against the accused persons were neither proper nor tenable.
27) It appears from the evidence on record that P.W. 2, Dorjee Tsering i.e. the complainant was not the first husband of the deceased, Namge Bhuti. P.W. 3, Kajang Wangdi is the son of one Chsetan Druba. The deceased, Namge Bhuti and Nowang Eto @ Chilimu were P.W. 3's mother and sister respectively. Lobsang Yashi was a brother of P.W. 3, Kajang Wangdi. Thus, it transpires that P.W. 2, Dorjee Tsering was the step father of P.W. 3, the deceased Nowang Eton @ Chilimu and Lobsang Yashi. On the other hand, the complainant, Dorjee Tsering (P.W.
2), and the present accused-appellant, Choge Chen (A-1) were brothers.
28) Both P.W. 1 and P.W.2 had testified about the incident of killing of the two deceased, Namge Bhuti and Nowang Eton. In the said fact situation, the testimonies of these two witnesses are required to be considered carefully. From the testimonies of both P.W. 2 and P.W. 3, it is evident that the night was a completely dark night and the incident was stated to have happened at 02-00 hrs. None of these two witnesses had said that there was any kind of light inside the house or on its outside. Further, none of these two witnesses deposed that accused persons had raised any voice or called each other by names. P.W. 2 and P.W. 3 did not say anything as to how they had identified the accused persons in that darkness inside the room. In the absence of light and in absence of any testimony about identification of the accused persons by voice, the fact of implicating the accused persons by names becomes a matter of doubt unless there are other corroborating evidence wherefrom it can be inferred that it was the four accused persons who had committed the crime.
29) It is noticed that the incident had happened in the year 1985 and P.W. 3 when he deposed in the year 1988, was about 13 years of age, meaning thereby, he was about 10 years old at the time of the incident. When we have scanned the testimony of P.W. 3, it is seen that P.W. 3 had vividly described the incident and the roles played by each of the accused persons. In his testimony, P.W. 3 had stated that he fled away before his father (P.W.
2) and he was hiding behind a stone which was at a distance of about 30/40 yards away from Page No.# 20/26 the house. After fleeing away from the house, he did not see what had happened inside the house. According to him, when the house was set on fire, he somehow came out of the house by jumping from the door. He, at one stage, said that due to the assault of Choge Chen (A-1) and Chochung (A-2) with sticks on the head and chest, his mother died on the spot. Later on, he again said that when the house was burning, his mother also somehow rolled out and came out of the house. If his mother, Namge Bhuti had died instantaneously inside the house due to the assault of Chochung (A-2) and Choge Chen (A-1), then she could not have come out of the house when the house was set on fire. But her dead body was allegedly found at a distance of about 50 meters from the burnt house. The doctor was of the opinion that the death in case of Namge Bhuti was instantaneous. Since P.W. 3 had said that he did not see what had happened in the house after coming out of the house, he could not have seen his mother coming out of the house. As such, those parts of his evidence appear to be contradictory to each other and not trustworthy.
30) As has been mentioned, the age of P.W. 3 was found to be about 10 years at the time of incident. It is not beyond the bounds of possibility that a ten years old child after sighting a gory incident, cannot perceive what he had seen and thereafter, retain in memory for a period of about three years so as to recapitulate the same graphically and precisely in tune with the deposition of the step father, P.W. 2 again after three years. Section 118 of the Evidence Act does not preclude a child from being a witness. It is settled position of law that every witness is competent to depose unless the Court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. In State of M.P. Vs. Ramesh, reported in AIR 1952 SC 54, the Supreme Court had observed as under:-
"11....... it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.''
31) In K. Venkateshwarlu Vs. State of Andhra Pradesh, reported in (2012) 8 SCC 73, it has been observed as under:-
"9......... A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily Page No.# 21/26 either by threat, coercion or inducement. Therefore, the Court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the Court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it."
32) In an instant case, the Trial Court did not record its opinion as regards the understanding of the child witness by ascertaining his suitability as a witness by asking questions to him before proceeding to record his evidence. In the backdrop of the events unfolded in the instant case, the two persons who were allegedly killed, were the mother and the sister of P.W. 3 and the wife and the step-daughter of P.W. 2. After the death of his mother and his sister, P.W. 3 had remained in the company of P.W. 2, his step-father. Absence of motive may not be fatal to the case of the prosecution in an incident of an attack if it is proved beyond reasonable doubt on the basis of direct evidence. It is settled law that the motive loses its importance in a case where direct evidence of eye-witnesses is available. But if the genesis of the occurrence is not fully proved and no reason is given for motive in the alleged attack, it might weigh against the prosecution.
33) If we go by the story projected by the prosecution in the instant case, it is seen that when the alleged attack was carried out allegedly by the assailants during midnight in a completely dark night inside the house equipped with weapons of assault, all the members of the family of the complainant were easy victims. But out of the five persons in the family, the assailants decided to pick only two of them when all the others were also easy pickings for the assailants. This is one case where in the face of such selective picking and choosing of victims, the motive assumes some importance. But from the case projected by the prosecution the motive behind such selective picking and choosing of victims has not come out. Having carefully evaluated the evidence of the child witness as regards his vivid and graphical description of the midnight incident in the background and the context of other evidence on record and considering the scope of such a child witness of being tutored or influenced either by threat, coercion, inducement or compulsion it appears to be not safe and Page No.# 22/26 prudent to rely entirely on the evidence of the child witness in the instant case i.e. P.W. 3.
34) P.W. 2 was the first, in point of time, to be attacked. On receiving serious injuries, he stated to have become unconscious and regained sense by the feel of heat of the fire. In examination-in-chief, he testified that he did not know how Nowang Eton was killed but in cross-examination he stated that he saw who had beaten the daughter. The above two versions in respect of the death of Nowang Eton appeared to be inconsistent with each other. P.W. 2 stated that on being beaten, he became senseless and regained senses only after he felt the heat of fire. On regaining his senses, he found his wife lying dead inside the room. He also said that it was a completely dark night. If it was a completely dark night and there was no source of light, it is difficult to infer that as to how P.W. 2 could found that his wife was dead without he himself touching the body of his wife.
35) What is noticeable is that in the complaint alleged to have been submitted by the complainant, Dorjee Tsering (P.W. 2) before the Circle Officer, Kalaktang (P.W. 1), there was no mention of the Gaonbura i.e. Karma Norbu therein but during the deposition, P.W. 2 mentioned that the Gaonbura, Karma Norbu was present at the time and place of incident and the Gaonbura also participated in the alleged attack on his family. In the deposition of P.W. 3, mention was made that Karma Norbu also came with the other accused persons although he did not say anything more about the role played by the Gaonbura, Karma Norbu in the complaint (Exhibit-12) filed by him. If the Gaonbura, Karma Norbu was present along with the other persons at the time and place of the incident the complainant (P.W. 2) could not be expected not to make a mention about the presence of the Gaonbura, Karma Norbu. The mentioning of the Gaonbura's presence at the time and place of the incident during the stage of evidence only but not in the complaint submitted to the Circle Officer makes the truthfulness of the version of the complainant, P.W. 1 a bit doubtful in its entirety.
36) P.W. 2 had deposed that the accused persons had set fire to the house and he regained sense when he felt the heat from the fire. When he regained his sense, he found his wife, Namge Bhuti lying dead inside the burning house. But the dead body of Namge Bhuti in a charred condition was found at a distance of 50 meters from the burnt down house. If the dead body was found at such a distance, two situations are plausible. The body of Namge Bhuti was to be taken out from inside the burning house or burnt down house by the accused Page No.# 23/26 persons and the dead body was thrown at the place from where it was found. In such situation, at least one of the accused persons must have some effect of burn on his person for the reason that it would not have possible to come out of a burning house with a burning body of a person unscathed. On the other hand, if the sole intention of the accused persons was to kill Namge Bhuti then it seems quite implausible to come to reason as to what purpose would be served for them to wait till the time the house to burn down completely and to take out the dead body from the remains of the burnt down house and to throw the body at a distance. But from the prosecution side, there is no evidence to that effect indicating that any of the accused persons, who were arrested thereafter, had any effect of burn. The other situation could be that Namge Bhuti was not dead at the time the house was burning and she somehow managed to crawl out. But that act of crawling out of the house must have to be done at a time when the house was burning. It could not have been possible after entire house was burnt down, as has emerged from the evidence on record. As nothing remained from the house after being burnt down, it was not possible for a human to survive inside the house till the very end of burning down of the house. Both P.W. 2 and P.W. 3 had unequivocally testified that Namge Bhuti met instantaneous death inside the house itself due to the injuries sustained in the attack and as such, this part of the matter remained unanswered by the prosecution. It was P.W. 2 who was the best person to indicate the reason for such alleged selective picking and choosing of victim. But this witness did not say anything as to why such kind of attack was carried out selectively. There was no evidence of him about any kind of enmity between him and the accused persons, more particularly, with his brother. Though injuries were on his person he was also, at the same time, under a duty to say the real facts, which in our considered opinion, he failed to discharge. When he managed to send the complaint on the same day of the incident citing the four names it is not discerned from the records as to why it took more than three weeks to record his statement from the date of the incident. In giving evidence, there is nothing more critical than the credibility. Evidence is evaluated whether or not someone has told the whole truth. If it found that a witness has hidden something or has not disclosed the whole truth then his credibility is dented and the same gives rise to a doubt. The testimony of P.W. 2 leaves a doubt on his credibility. The standard that must be met by the prosecution's evidence is proof beyond all reasonable doubt and that no other logical explanation can be derived from the Page No.# 24/26 facts except that the accused person(s) committed the crime.
37) From the evidence of P.W. 4 and P.W. 5, it is seen that by the time they had reached the place where the dead bodies were lying the police personnel were already present at the place and it was the police personnel who showed the two dead bodies to them. Thus, the attempt on the part of the prosecution, about recovery of the dead bodies after being identified by the accused persons is not acceptable. The evidence of P.W. 7 and P.W. 8 do not go to corroborate the story of the prosecution in any manner.
38) The medical evidence shows that the injuries sustained by the deceased were ante- mortem in nature. P.W. 9 had stated that all the injuries in the case of Namge Bhuti were caused by sharp and dangerous weapon. But the evidence of P.W. 2 and P.W. 3 did not mention use of any sharp and dangerous weapon by the assailants. Similarly, it is opined by the doctor that all the injuries in the case of Nowang Eton also were ante-mortem in nature and caused by weapon and dangerous and blunt weapon. P.W. 2's testimony as regards the manner of death of Nowang Eton, as has been mentioned above, is not consistent. It was P.W. 3 who had deposed as to how Nowang Eton was killed. But his version also did not make any mention of use of any sharp and dangerous and blunt weapon. Though human blood stains were detected by the forensic experts in some of the materials sent to him there is no other evidence so as to co-relate the said evidence with the alleged crime under investigation. We have also reservations to accept the evidence of the I.O. as regards seizure of shirts containing human bloods from the bodies of the two accused persons after their arrest at the police station. We are skeptical to believe that after committing such heinous crime of murder the accused persons would keep on wearing the blood stained shirts and would wait for the police to come and they be arrested without changing the shirts. The accused were not arrested at the P.O. right after the incident. There was a time gap of atleast a few hours from the incident to the time of their arrest. The testimony of the I.O. was that those were seized from the bodies of the two accused persons in presence of witnesses and those seizures were made in the police station after their arrest. In view of the reasons stated above, that part of the evidence of the I.O. as regards was seizures of blood stained shirts from the two accused persons is not acceptable and the same is to be discarded.
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39) The I.O. claimed that he seized three sticks containing suspected human blood from the spot but he did not send the same for examination. He merely testifies that the accused had stated that they used those three wooden sticks and also identified them. But the wooden sticks seized were not shown to the doctor, the forensic experts and the I.O. In Kartarey Vs. State of U.P., reported in (1976) 1 SCC 172, the Supreme Court emphasized the importance of eliciting the opinion of the medical witness who had examined the injuries of the victim and held that " it is the duty of the prosecution to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice ".
40) In view of above discussions, we are of the considered opinion that the Trial Court while appreciating and appraising the evidence available on record has not properly considered every factual aspect of the case vis-à-vis necessary circumstances. Considering the entire factual background and the legal positions stated above, we find that the prosecution has failed to prove the case against the accused-appellant beyond all reasonable doubt to bring home the guilt to the accused-appellant by unerringly proving that the accused-appellant had committed the crime. In the light of the above discussion and the conclusions arrived at by us, on re-appreciation of the evidence, we are of the firm opinion that the impugned judgment and order cannot be sustained and the accused-appellant deserves to be acquitted of the charge levelled against him. As a result, the impugned judgment of conviction and sentence of the accused-appellant for the offence under Section 302/34, Indian Penal Code passed by learned Additional Senior Judge, Yupia, Itanagar in Sessions Case No. 128/2002 with regard to the appellant Shri Choge Chen is set aside by allowing the instant appeal. The accused-appellant shall be set at liberty forthwith, if not required in connection with any other case.
41) We mention our appreciation for the services rendered by Me. Bijita Sarma, learned Amicus Curie and direct that an amount of Rs. 7,500/- be paid to her as remuneration by the State Legal Services Authority.
42) Return the L.C.R. along with a copy of this Judgment to the Court of learned Additional Sessions Judge, Yupia, Itanagar.
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43) A copy of this Judgment be forwarded to the Superintendent, District jail, North Lakhimpur for his necessary use.
JUDGE JUDGE Comparing Assistant