Delhi District Court
Cbi vs Hopeson Ningshen & Others on 31 May, 2014
RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL
CBI versus Hopeson Ningshen & Others
IN THE COURT OF SHRI VINAY KUMAR GUPTA,
SPECIAL JUDGE (PC ACT), CBI2, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No.36/10
RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL
U/s. 120B/364/364A/302/392/34 and 411 IPC & 16 r/w. 15 UA(P) Act
CBI versus 1. Hopeson Ninghsen,
ACB, New Delhi s/o. Shri N. Pishang,
R/o. village Nambashi,
District Ukhrul, Manipur.
2. RI. Yurhor @ Abo Sibo,
s/o. Shri RI. Phami,
R/o. village Tuinem (Teinam),
PO & PSSomdal,
District Ukhrul, Manipur.
3. S.K. Themhorshang @ Themshang
@ Ashang,
s/o. Shri S.K. Samson,
R/o. village Apong,
PSKamjong,
District Ukhrul, Manipur.
4. Jonney
s/o. Not known,
R/o. Not known
1 of 173
RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL
CBI versus Hopeson Ningshen & Others
Date of FIR : 02.04.2009
Date of filing of chargesheet : 31.10.2009
Date of Judgment : 31.05.2014
Appearance:
For prosecution : Shri Ashok Kumar Singh, Ld. Sr. PP for CBI
For accused persons : Shri N.D. Pancholi and Shri Kahorngam
Zimik, Advocates
J U D G M E N T
1. Brief facts of the case are :
1.1 Dr. Th. Kishan Singh, SDO, Kasom Khullen, District Ukhrul, Manipur alongwith five of his subordinate staff members namely, Ramsing Siro, Ramthing Shinglai, Kapangkhui Jajo, Y. Token Singh and A. Rajen Sarma were abducted by NSCN (IM) activists from Ukhrul on 13.02.2009 and were kept under illegal detention at village Langdang and on 14.02.2009, while Ramsing Siro, Ramthing Shinglai and Kapangkhui Jajo were released and sent back to Ukhrul, Dr. Th. Kishan Singh, Y. Token Singh and A. Rajen Sarma were shifted to village Seikhor and kept under the captivity till evening of 16.02.2009 and on 16.02.2009 on the complaint of Sh. Sudhan R., case FIR No. 8(2)/2009 dated 16.02.2009 u/s. 365, 368/34 IPC was registered at Police Station Ukhrul. The three persons in captivity were taken to Senapati and killed in the night intervening 16/17.02.2009 and their dead bodies were thrown on the bank of River Touphu Kuki, Distt. Senapati for which the FIR no. 3(2)/2009 dated 17.02.2009 u/s. 302/400 IPC was registered at PS
2 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Senapati.
1.2 The wife and father of the SDO Dr. Th. Kishan Singh, when he did not return home on 14.02.2009, searched for him, met the SP Ukhrul and also the Chief Secretary and the Chief Minister, Manipur and on 17.02.2009 received the information of his being dead alongwith two of his subordinate officials Y. Token Singh and A. Rajen Sarma.
1.3 The investigation was later on transferred to the CBI vide Government of India Notification dated 24.03.2009 and the Imphal branch of CBI registered two FIRs no. RC : IMPH.2009S0002 dated 02.04.2009 on transfer of case FIR no. 8(2)2009 dated 16.02.2009 of PS Ukhrul and FIR no. RCIMPH.2009S0003 dated 02.04.2009 on transfer of case FIR no. 3(2)2009 dated 17.02.2009 of PS Senapati.
1.4 Three dead bodies found at the bank River Touphu Kuki, Distt. Senapati, were identified as those of Dr. Th. Kishan Singh and two of his staff members namely, Y. Token Singh and A. Rajen Sarma who were amongst the six persons abducted from Ukhrul on 13.02.2009.
1.5 It is stated in the charge sheet that the investigation revealed that Minister (Works), Govt. of Manipur was scheduled to visit Kasom Khullen on 14.02.2009 and on 12.02.2009 the office of the Deputy Commissioner, Ukhrul sent a message to Dr. Th.
3 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Kishan Singh to attend the meeting at Ukhrul on 13.02.2009.
Dr. Th. Kishan Singh is stated to have sent a team of his staff to Kasom Khullen on 13.02.2009 for making arrangements in connection with the visit of Minister (Works) and he himself alongwith his five subordinate staff members came to Ukhrul in the morning of 13.02.2009 in the official Gypsy No. MN04/5799. Dr. Th. Kishan Singh stated to have attended the meeting with the Dy. Commissioner and was sanctioned Rs.30,000/ for meeting the expenses on the visit of Minister (Works) which he withdrew from the United Bank of India, Ukhrul and proceeded towards Kasom Khullen in his official Gypsy alongwith his five subordinate staff members. Dr. Th. Kishan Singh stated to have been carrying the mobile phone no. 9542010376 with him at that time.
1.6 The investigation stated to have been further revealed that the accused Hopeson Ningshen self styled Lieutenant Colonel in National Socialist Council of Nagaland (NSCNIM) alongwith Abo Sibo @ Yurhor, Themshang @ Themhorshang @ Ashang and Jonney had planned to abduct Dr. Th. Kishan Singh and for that purpose engaged a Bolero vehicle no. MN04 A 2645 driven by Shri Puizatleng Kasar @ Mahai as Taxi. It has further been stated in the charge sheet that while Dr. Th. Kishan Singh with his five staff members proceeded to Kasom Khullen in his official Gypsy they were followed by the vehicle driven by Shri Puizatleng Kasar @ Mahai who stopped his vehicle in middle of the road near the Naga Gate and Gypsy was forced to stop near the Naga Gate on Ukhrul Imphal Highway where they forced the SDO Dr. Th. Kishan Singh and his staff members to get down from the Gypsy and snatched the two mobile phones, one of the SDO Dr. Th.
4 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Kishan Singh and another of Shri Ramsing Siro and were taken to village Langdang situated at the distance of about 15 kms. from Ukhrul town.
1.7 The charge sheet further states that at Langdang, Abo Sibo alongwith other unknown NSCN(IM) militants joined and and a ransom of Rs.20 Lacs was demanded from Dr. Th. Kishan Singh which he refused to pay and after making arrangements for food and night stay of the abducted persons by threatening the exheadman of village Langdang and the authorities of the village Church, Ashang came back to Ukhrul in the vehicle driven by Shri Puizatleng Kasar @ Mahai.
1.8 The charge sheet further states that on 14.02.2009 Ashang again engaged the same vehicle alongwith one more vehicle driven by Shri Wungmi Raleng came to village Langdang and out of six abducted persons, three namely, Ramsing Siro, Ramthing Shinglai, Kapangkhui Jajo were released from the captivity under order of the accused Hopeson Ningshen and were dropped at Imphal through the vehicle driven by Shri Wungmi Raleng and the remaining three persons namely, Dr. Th. Kishan Singh, Y. Token Singh and A. Rajen Sarma were taken to another village Seikhor in the vehicle driven by Puizatleng Kasar @ Mahai where Ashang again threatened the village Headman and the Secretary ad forced them to arrange the stay of the six persons including three abducted persons and thereafter Ashang returned back to Ukhrul in the same vehicle. The three abducted persons were stated to be kept at village Seikhor from 14.02.2009 to the evening of 16.02.2009 and were taken out of village Seikhor in the vehicle driven by Puizatleng 5 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Kasar @ Mahai and taken to Senapati.
1.9 Dr. Th. Kishan Singh stated to have not given the contact numbers of his family members despite abductors kept on asking the same on which the accused Hopeson Ningshen directed Abo Sibo, Ashang and Jonney to physically assault and beat the three and they were beaten to death after tying their hands at back, face covered and their dead bodies dumped on the bank of River Touphu Kuki along NH39 about 2 kms away from Senapati towards Imphal as per the instructions of accused Hopeson Ningshen and went back to Ukhrul in the vehicle driven by Puizatleng Kasar @ Mahai.
1.10 The charge sheet further states that the dead bodies of the SDO Dr. Th. Kishan Singh and his two staff members were thrown on the river bed with a view to create panic and terrorize the general public which led to wide spread protest and created serious law and order problem for which curfew had to be imposed in Imphal on 19.02.2009. The amount of Rs.30,000/ and the mobile phone instrument with IMEI No. 355352007890060 were not found with Dr. Th. Kishan Singh while his dead body was recovered at Senapati on 17.02.2009 and the mobile phone bearing IMEI No. 355352007890060 was found with accused Hopeson Ningshen and was recovered from him by NSCNIM which handed over the same to CBI.
1.11 The accused Hopeson Ningshen is stated to have been arrested on 29.05.2009 and produced before the court at Ukhrul and was remained to Police Custody 6 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others till 12.06.2009. The CBI stated to have filed the Transfer Petition no. 219/2009 and 220/2009 before the Supreme Court seeking permission to produce the accused Hopeson Ningshen before the court at Delhi on expiry of the Police Custody Remand and for transfer of case to Delhi which the Supreme Court allowed vide order dated 09.06.2009.
After completion of investigation, CBI filed charge sheet for offences u/s. 120B, 364, 364A, 302, 392, 34 and 411 IPC and u/s. 16 r/w section 15 Unlawful Activities (Prevention) Act, 1967 before the court of CJM Ukhrul.
1.12 The copies were supplied to the accused Hopeson Ningshen and having complied with the provisions of u/s. 207 Cr. P.C., the case was committed to the Court of Sessions by the Ld. CMM vide order dated 02.11.2010 and was thereafter transferred to the designated CBI court vide order dated 13.12.2010 by the District and Sessions Judge, Delhi.
1.13 During the pendancy of the transfer petition before the Supreme Court the CBI filed the charge sheet before the court of CJM, Ukhrul and the request of CBI for transfer of trial case to Delhi was allowed vide order dated 30.06.2010 of the Supreme Court and accordingly the case file was transferred to Delhi.
1.14 The accused persons RI. Yurhor @ Abo Sibo, S.K. Themhorshang @ Themshang @ Ashang and Jonney could not be arrested and are absconding.
7 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 1.15 After hearing the prosecution and the accused, the charge for offences punishable u/s. 120B IPC read with 392/364A/302 IPC read with Section 15/16 UAPA and further charges for offences u/s. 392 read with 120B IPC; section 364 A read with 120B IPC; u/s. 302 read with 120B IPC, section 16 UAPA read with 120B IPC and under section 411 IPC were ordered to be framed against the accused vide order dated 21.02.2011 and formal charges which read as :
That during the month of February 2009, you alongwith coaccused RI. Yurhor @ Abo Sibo, S.K. Themshang @ Themorshang @ Ashang and Jonney (all three since absconding) entered into a criminal conspiracy to do an illegal act, that is, to kidnap Dr. T. Kishan Singh, SubDivisional Officer, Kasom Khullen, Distt. Ukhrul, Manipur, alongwith his staff, to rob them and to demand ransom for their release and in the event of their failure to pay ransom to kill them and to commit a terrorist act by causing their death by fire arms as the same will threaten the unity, integrity, security or sovereignty of India or strike terror in the people or any section of people and in pursuance to the conspiracy, you kidnapped Dr. Th. Kishan Singh, SDO, Kasom Khullen, on 13.02.2009, when he was proceeding in his official gypsy towards Kasom Khullen and reached near Naga Gate, Ukhrul alongwith his staff Sh. Y. Token Singh, Sh. A. Rajen Sarma, Sh. Ram Sing Siro, Sh. Ramthing Shinglai and Sh.Kapangkhui Jajo and robbed Dr. Th. Kishan Singh of his mobile phone and ash Rs. 30,000/ and also demanded a ransom of Rs. 20 lacs from him, out of whom Ram Singh Siro, Sh. Ramthing Shinglai and Kapngkhui Jajo 8 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others were released from detention on 14.02.2009 and shifted them from one place to another place, like village Langdang, Seikhor and Senapati, during 13.02.2009 to 16.02.2009 and in the event of their failure to pay the ransom the remaining three persons, that is, Dr. Th. Kishan Singh, Sh. Y. Token Singh and Sh. A. Rajen Sarma were killed by you in the intervening night of 16 / 17.02.2009 and their dead bodies were dumped in the bank of river Touphu Kuki along NH39, two kilometers away from Senapati towards Imphal and on account of their murder there were wide spread disturbances in Manipur, which led to imposition of curfew and thereby you committed an offence punishable under Section 120B read with 392/364(A)/302 IPC read with Section 15/16 UAPA and within my cognizance.
and That during the month of February 2009, you alongwith coaccused RI. Yurhor @ Abo Sibo, S.K. Themshang @ Themorshang @ Ashang and Jonney (all three since absconding) entered into a criminal conspiracy to do an illegal act, that is, to kidnap Dr. Th. Kishan Singh, SubDivisional Officer, Kasom Khullen, Distt. Ukhrul, Manipur, alongwith his staff, to rob them and to demand ransom for their release and in the event of their failure to pay ransom to kill them and to commit a terrorist act by causing their death by fire arms as the same will threaten the unity, integrity, security or sovereignty of India or strike terror in the people or any section of people and in pursuance to the conspiracy, you kidnapped Dr. Th. Kishan Singh, SDO, Kasom Khullen, on 9 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 13.02.2009, when he was proceeding in his official gypsy towards Kasom Khullen and reached near Naga Gate, Ukhrul alongwith his staff Sh. Y. Token Singh, Sh. A. Rajen Sarma, Sh. Ram Sing Siro, Sh. Ramthing Shinglai and Sh. Kapangkhui Jajo and robbed Dr. Th. Kishan Singh of his mobile phone and ash Rs. 30,000/ and thereby, you committed an offence punishable under Section 392 read with 120B IPC and within my cognizance.
Secondly, during the aforesaid dates, time and place, you demanded a ransom of Rs. 20 lacs from Dr. Th. Kishan Singh for their release and on account of their failure to pay the ransom, you murdered Dr. Th. Kishan Singh alongwith two of his staff, namely, Sh. Y. Token Singh and Sh. A. Rajen Sarma, and thereby you committed an offence punishable under Section 364 A read with 120B IPC and within my cognizance.
Thirdly, during the intervening night of 16/17.02.2009, you murdered Dr. Th. Kishan Singh alongwith two of his staff, namely, Sh. Y. Token Singh and Sh. A. Rajen Sarma, and thereby you committed an offence punishable under Section 302 read with 120B IPC and within my cognizance.
Fourthly, you kidnapped and murdered the aforesaid three persons in order to threaten unity, integrity, security, sovereignty of India or strike terror in people or a section of people by causing their kidnapping and death by use of fire arms as their murder led to wide spread disturbances in Manipur, Imphal and thereby you committed an offence punishable under Section 16 of UAPA read with 120B IPC and within my cognizance.
10 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Fifthly, the Nokia mobile phone belonging to Sh. Th. Kishan Singh was recovered from you in February 2009, which was retained by you knowingly that it was the stolen property of Th. Kishan Singh and thereby you committed an offence punishable under Section 411 IPC and within my cognizance.
were framed against the accused on 21.02.2011 itself to which he pleaded not guilty and claimed trial.
2. The prosecution in support of its case examined as many as 43 witnesses. The witnesses examined are :
PW1 : Shri K. Pukeho, SDPO, District Senapati, Manipur, who proved the FIR Ex. PW1/A dated 16.02.2009 of PS Ukhrul and the memo Ex. PW1/B vide which the record of the case was transferred to CBI.
PW2 : Dr. Pradip Kumar Singh, RIMS Hospital, Imphal,
who proved the postmortem reports Ex. PW2/A of Dr.
Th. Kishan Singh, Ex. PW2/B of A. Rajen Sarma and Ex.
PW2/C of Y. Token Singh.
PW3 : Shri Kachamthai Faiga Gangmei, SubDeputy
Collector, Myang, Imphal, to whom Dr. Th. Kishan Singh met before and after the meeting in DC office, Ukhrul on 13.02.2009.
PW4 : SI U. Shamu Singh, Senapati Police Station, Senapati District, Manipur, the investigating officer of case registered at PS Senapati and has proved the inquest 11 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others memos Ex. PW4/A of A. Rajen Sarma; Ex. PW4/B of Dr. Th. Kishan Singh; Ex. PW4/C of Y. Token Singh;
requisitions Ex. PW4/D for postmortem of Dr.Th. Kishan Singh; Ex. PW4/F for postmortem of A. Rajen Sarma;
Ex. PW4/H of Y. Token Singh; challans Ex. PW4/E, Ex. PW4/G and Ex. PW4/J through which the dead bodies of Dr. Th. Kishan Singh, A. Rajen Sarma and Y. Token Singh were sent for postmortem and identified the spade Ex.P7, boulders Ex.P8 and Ex.P9, woolen mufflers Ex.P10 and Ex.P11 and handkerchief Ex.P12, two metal wires and one electric and Ex.P13, ExP14 and Ex.P15.
PW5 : Ms. Marve Raleng, UDA, Manipur Sectt., Imphal, Manipur, whose husband Shri Levi Zimik was a Colonel in NSCN (IM) and who deposed about the accused as a rank holder in NSCN (IM) and also about disturbances and bandh in Imphal on account of murder of Dr. Th.
Kishan Singh.
PW6 : Shri Ningshen Khurye Wungshung, Sr. Bill Clerk in the office of Chief Engineer (PowerII), Imphal, brother of accused Hopeson Ningshen, who proved the mobile number of the accused Hopeson and had spoken to him (accused) on 13.02.2009 on his (accused) mobile number.
PW7 : Sh. Thingnam Surendra Singh, father of Dr. Th. Kishan Singh, who deposed about the non return of Dr. Th.
Kishan Singh on 14.02.2009 and efforts made till 17.02.2009.
12 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW8 : Smt. Thingnam Romita Devi, wife of Dr. Th. Kishan Singh who also deposed about his non return and the efforts made to trace him and identified the mobile phone Ex. PW8/A of Dr. Th. Kishan Singh which he was carrying at the time he went to Ukhrul.
PW9 : Sh. Thingnam Roshan Singh, brother of Dr. T. Kishen Singh who also identified the mobile phone Ex. PW8/A of Dr. Th. Kishan Singh.
PW10 : Ms. Ronibala wife of one of the staff members, namely, driver Aribam Rajen Sarma who also went missing on 13.02.2009 alongwith Dr. Th. Kishan Singh and deposed about the non return of her husband.
PW11 : Shri S. Bhubaneshor Singh, working as Accountant cumCashier in the office of SDO/BDO, Kasom Khullen, Ukhrul, Manipur, who deposed about the persons/staff members accompanied Dr. Th. Kishan Singh from Kasom Khullen to Ukhrul on 13.02.2009 and who was contacted by Ram Sing Siro after his release, and who met the father of Dr. Th. Kishan Singh on 15.02.2009 and 16.02.2009.
PW12 : Shri Pankaj Kumar Pal, Distt. Magistrate, Gopal Ganj, Bihar, who was the Deputy Commissioner, District Ukhrul, Manipur at the time of incident on 13.02.2009 and has deposed about calling of meeting of SDOs on 13.02.2009 and issuance of cheque for Rs.30,000/ to Dr. Th. Kishan Singh and proved the sanction order Ex. PW 12/A; and statement Ex. PW12/B; and the cheque for Rs.30,000/ Ex. PW12/C. 13 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW13 : Sh. Ningshem Vashum, s/o. Late Shri Khashim Vashum working as Dy. Resident Commissioner, Manipur Bhawan, New Delhi, who was the SDPO Ukhrul on 16.02.2009 proved the FIR no.8(2)/09 PS Ukhrul Ex. PW 13/A (which has also been proved as Ex. PW1/A) and carried out investigation in the case till his transfer on 02.03.2009 to Imphal.
PW14 : Ms. Marygrace Luikham working as Cashier in DC Office (DRDA Section), Ukhrul, Manipur, who had prepared the sanction order Ex. PW12/A, bill Ex. PW 12/B and cheque Ex. PW12/C and also proved the bill register Ex. PW14/A. PW15 : Shri T. Ngarnmi working as ClerkcumCashier, United Bank of India, Ukhrul Branch, Ukhrul, Manipur, who proved encashment of cheque Ex. PW12/C and was joined in tracing out the number plate of the vehicle of the SDO, and has also proved the spot verification memo Ex. PW15/A. PW16 : Shri Rangnamei Rang Peter working as SDO Phungyar, Distt. Ukhrul, Manipur, who met DC Pankaj Kumar Pal on 12.02.2009 was exempted from attending the meeting called by PW12 on 13.02.2009.
PW17 : Shri Sudhan working as Dy. Commissioner, District Ukhurul, Manipur, who was the SDO Ukhrul when PW12 was the SDO Ukhrul and has attended the meeting called by PW12 on 13.02.2009 and has lodged the complaint Ex. PW40/A about missing of Dr. Th. Kishan Singh, on the basis of which FIR Ex. PW1/ was recorded at PS Ukhrul.
14 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW18 : Ms. Mercina, working as SDM Lamphelpat, Distt. Imphal West, Manipur, who witnessed the identification of jeep no. MN04A 2645 and proved the identification memo Ex. PW18/1.
PW19 : Sh. Lanuyapang, Sr. Assistant, Govt of Nagaland, Kohima, who deposed about the ceasefire agreement marked M1, of 1997 between Government of India and NSCN (IM) and stated it to be still in existence.
PW20 : Mrs. Ch. Sachi, the then Executive Magistrate O/o the District Magistrate, Imphal West, Manipur who deposed about the strikes and unrest in Imphal following the death of Dr. Th. Kishan Singh and two others and imposition of curfew also proved the curfew order dated 19.02.2009 Ex. PW20/A. PW21 : Sh. Kapangkhui Jajo is amongst 6 persons who were abducted on 13.02.2009 and is also amongst 3 persons out of those 6 who were released on 14.02.2009 and have deposed about the factum of their abduction till their release on 14.02.2009 and has identified the Bolero jeep which was used in their abduction vide identification memo Ex. PW18/1.
PW22 : Sh. Ramsing Siro is amongst 6 persons who were abducted on 13.02.2009 and is also amongst 3 persons out of those 6 who were released on 14.02.2009 and have deposed about the factum of their abduction till their release on 14.02.2009 and has identified the Bolero jeep which was used in their abduction vide identification memo Ex. PW18/1.
15 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW23 : Sh. Wungmi Raleng, was the driver of jeep which was hired by the abductor on 14.02.2009 and had brought the three persons released on 14.02.2009 to Imphal.
PW24 : Dr. Amod Kumar Singh, Sr. Scientific OfficerII, CFSL, New Delhi has conducted the polygraph examination of accused Hopeson Ningshen and has proved his report Ex. PW24/A and the original file of conducting the polygraph examination Ex. PW24/B. PW25 : Sh. H. Jagadananda Singh, Scientific Officer, Forensic Laboratory, Pangei, Manipur examined the exhibits sent to CFSL and has proved the acknowledgment of having received the exhibits in CFSL Ex. PW25/A and the examination report Ex. PW25/B and its forwarding letter Ex. PW25/C and also forensic examination of Bolero jeep used in abduction and proved his report Ex. PW25/E and also proved the examination report of the accessories in the jeep vide his report Ex. PW25/G forwarded vide Ex. PW25/H. PW26 : Sh. Puizatleng Kasar Mahai, Driver of Bolero jeep used in abduction on 13.02.2009 and till the night of 16.02.2009 and has deposed about the events that has taken place from 13.02.2009 to 16.02.2009/17.02.2009.
PW27 : Sh. Lenkhomang Chongloi, was the headman of village Taphou Kuki and on receiving the information about the lying of three dead bodies at Tophou Kuki river went to the police station and brought the police to the spot from where three dead bodies were recovered and has also proved the inquest memo Ex. PW4/B and also the 16 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others articles lying at the spot which were seized by the police.
PW28 : Ms. H. Lakleiphy Hungyo, who is the relative of the accused Hopeson Ningshen through his wife and has spoken to her on 12th and 13th February 2009 by calling from her mobile phone.
PW29 : Ms. Hatlam alias Hatzalam who is the resident of village Tophou Kuki and had first seen the three dead bodies at the Tophou Kuki river bank and had informed the headman of the village about the three dead bodies.
PW30 : Sh. Th. Amalkumar Singh the then Deputy Secretary (Home), now Dy. Secretary (Works), Govt. of Manipur has proved the order Ex. PW30/A granting sanction u/s 45 of the Unlawful Activities (Prevention) Act 1967.
PW31 : Sh. Jojo Robertson, is the resident of village Kasom Khullen who met Dr. Th. Kishan Singh on 12.02.2009 in connection with the arrangement of the proposed visit of the Works Minister Shri K. Ranjit Singh to Kasom Khullen on 14.02.2009 and held protest, rallies and dharna about the killing of Dr. Th. Kishan Singh and his two subordinates on 18.02.2009.
PW32 : Dr. B. K. Mohapatra, Sr. Scientific Officer, Biology, CFSL, CBI, New Delhi deposed about the receipt of two parcels containing 6 exhibits each and proved the report Ex. PW32/A alongwith original file and forwarding letter Ex. PW32/B. PW33 : Sh. L. Thomas Salu, an Inspector in CBI is part of the 17 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others investigation team who recorded the statement of 13 witnesses and seized certain documents and has collected the articles seized by the police of PS Senapati vide seizure memo marked PW32/A and has seized the mobile phone Ex. PW8/A alongwith letter Ex. PW33/C vide seizure memo Ex. PW33/B and also identified the mobile phone Ex. PW8/A which was seized by him vide seizure memo Ex. PW33/B. PW34 : Sh. P. Shadang, is also an Inspector of CBI who also remained member of investigation team and collected the cheque Ex. PW12/C and the statement of account from the bank which was seized vide seizure memo Ex.
PW34/A. He also seized letter Ex.PW34/C vide seizure memo Ex. PW34/B. He also proved the seizure of certain documents handed over to him by Ms. Ningshimi Awungshi seized vide seizure memo Ex. PW34/E. He also proved the seizure of three pieces Ex. PW34/M1, Ex. PW34/M2 and Ex. PW34/M3 of the vehicle used by Dr. Th. Kishan Singh which was seized vide seizure memo Ex. PW34/F. He also proved spot verification memo Ex. PW15/A. PW35 : Sh. Shinglai Peter who was the schoolmate of accused Hopeson Ningshen and was headman of village Kangkum and has proved the complaint Ex. PW34/C made against Dr. Th. Kishen Singh.
PW36 : Sh. Sudesh Kumar Singla, Sr. Scientific Officer, Grade I, Serology CFSL, CBI, New Delhi, carried out the serological examination of six exhibits and has proved his report Ex. PW36/A. 18 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW37 : Ms. Shelly Arora, Ld. MM, Tis Hazari Courts (West Distt.), Delhi, recorded the confession statement of accused Hopeson Ningshen and has proved the application for recording confession Ex. PW37/B, order dated 12.06.2009, Ex. PW37/C, proceedings dated 14.06.2009 Ex. PW37/D, endorsement identifying the accused Hopeson Ningshen by the IO Ex.PW37/E, confessional statement of the accused and the certificate Ex. PW37/F, application for supply of copy of statement Ex. PW37/G and the order thereon Ex. PW37/H. PW38 : Sh. A.S. Wungmaso, who remained village headman of Langdang from 1995 to 2007, has stated about availability of some persons in his village who were not from that village on 13.02.2009 and 14.02.2009.
PW39 : Shri L. Hangshing, an Inspector in CBI, was the member of the investigatng team and examined some witnesses, took over the possession of the vehicle used in abduction from PS Ukhrul, has proved memo regarding handing over of the vehicle Ex. PW39/A, seized portion of the seat cover vide seizure memo Ex. PW39/B and has also proved identification memo of the vehicle Ex. PW18/1 and also proved statement Ex. PW38/A u/s 161 Cr.P.C. of PW1 OF A.S. Wungmaso (PW38).
PW40 : Ms. Ningshimi Awungshi, Project Officer in DRDA, Ukhrul, Manipur has proved seizure memo Ex. PW34/E regarding seizure of documents Ex. PW14/A and Ex.
PW14/B and has also proved the complaint made to PS Ukhrul Ex. PW40/A. PW41 : Shri L. Ronel Singh, Junior Telecom Officer, BSNL, 19 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Manipur, SSA, NEII Circle, has proved letter Ex. PW41/A through which call detail records generated by him and taken printouts of the same in respect of mobile phone mentioned in letter Ex. PW41/A. He also proved subscriber form Ex. PW41/B and generation of BTS Tower address list Ex. PW41/C and call detail records Ex. PW41/D. PW42 : Shri K.L. Chaudhary, Nodal Officer of Dishnet Wireless Ltd., Guwahati proved the letter dated 12.05.2009 of CBI marked PW42/A and letter Ex. PW42/A1 through which the annexures Ex. PW42/B and Ex. PW42/C were forwarded to CBI.
PW43 : Shri Ganesh Verma, SP, ACB, CBI, Imphal, the investigating officer of the case who proved his endorsement Ex. PW43/A on the notification dated 24.03.2009 through which the investigation of the case was transferred from the police of Manipur to CBI; the notification Ex. PW43/B vide which the Government of Manipur consented to refer the investigation of the FIR no.8(2)/2009 of PS Ukhrul and 3(2)/2009 of PS Senapati to CBI and proved the FIR Ex. PW43/C and FIR Ex.
PW43/D registered by CBI which were forwarded to CGM, Ukhrul and CGM Senapati vide forwarding letter Ex.PW43/E and Ex. PW43/F; receiving of record vide receipt Ex. PW1/B of the case registered by PS Ukhrul; the personal search memo Ex. PW43/G and arrest memo Ex. PW43/H of accused Hopeson Ningshen; the request of the accused for willingness to give statement before the Magistrate Ex. PW43/J; the application for recording the statement of accused Ex. PW37/B;
identification of the accused Hopeson Ningshen before 20 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others the Magistrate vide Ex. PW37/E and the application for copy of statement Ex. PW37/G; letter written to the Manager, Aircel Ex.PW43/K and the documents Ex.
PW42/A1, Ex. PW42/B and Ex. PW42/C made available by the service provider, Aircel; seizure memo of the mobile phone Ex. PW33/B and the letter Ex. PW33/C;
receiving of letter Ex. PW41/A from BSNL; seizure memo Ex. PW1/B; copy of letter sent to Branch Manager Union Bank of India Ex.PW43/L requisitioning the cheque and receipt of cheque Ex. PW12/C and the statement of account Mark S1 from Union Bank of India; letter written to Additional Director FSL, Manipur Ex. PW43/M; vehicle inspection reports Ex. PW25/E and Ex. PW25/F; letter written by him to Additional Director, FSL, Manipur Ex. PW43/N for forensic examination of seat covers regarding which report Ex. PW25/G was collected;
authorization letter to Inspector L.T. Salu and R.V.S. Lohmor for collection of documents/seizure memo of articles seized from PS Senapati Ex. PW43/P and the letter Ex. PW43/Q to CFSL, New Delhi whereby the sealed packets containing exhibits were sent to CFSL, New Delhi; authorization letter Ex.PW43/R to collect the FSL report Ex.25/C from FSL, Manipur; the site plan Ex.PW43/S (D7); the receipt memo through which records were received by CBI from PS Senapati Ex.PW43/T and the order dated 29.10.2009 Ex.PW30/A (D57).
3. The Ld. Sr. PP for CBI has argued that the accused has made the confession Ex.PW37/F and under the Indian Evidence Act, if any inducement, threat or promise etc. is not available in confession, it would be presumed to be voluntary and can 21 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others be acted upon. And the confession Ex.PW37/F is voluntary as there is no allegation of being beaten or tortured or extraction of confession by force and no question has been asked nor any suggestion given to PW34 Insp. P. Shadang, who remained associated with the investigation of the case all through or to PW39 DSP L Hangshing, who remained associated in investigation during the police custody remand of the accused, during their crossexamination in this regard though only suggestion regarding for forcing the accused to make a confession has been given to the investigating officer PW43 DSP Ganesh Verma.
3.1 It has further been submitted that DW2 Ms. K. Joyrita the wife of the accused had been visiting the accused while he was in police custody and the accused never made any complaint about any threat/pressure etc. even to DW2 or even to doctor during his medical examination, at any time during the period of police custody or on 12.06.2009 when he was medically examined after completion of period of police custody remand before production in the court.
3.2 It has further been submitted that the application Ex.PW43/J expressing willingness to make a statement before a Magistrate was not written in court premises and was already attached to the request application Ex.PW/C for recording of confession moved on 12.06.2009. On 12.06.2009, the accused was asked about his willingness by PW37 Ms. Shelly Arora, MM and the accused expressed his willingness and sought time and made a confessional statement Ex. PW37/F on 14.06.2009 and there was no police 22 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others pressure on the accused on 14.06.2009 and he made no statement regarding police torture/beating or pressure either on 12.06.2009 or 14.06.2009.
3.3 The Ld. Sr. PP has also submitted that the accused was allowed sufficient/ adequate time of 48 hours to think and accused is a well educated person able to read, write and speak English and conversation between him and PW37 is without the aid of any third person and PW37 complied with all the procedural formalities/legal procedures as stated in para 9 to 14 of the proceedings Ex.PW37/F, and as such the validity of the confessional statement cannot be questioned. The accused is stated to have been allowed to go through the statement Ex.PW37/F and he had put his signature thereon after being satisfied that it is as stated by him before her (PW37) and as such correctness of statement Ex.PW37/F is not in question, its truthfulness not disputed by the accused even in his statement u/s 313 Cr.P.C. and as such the confessional statement Ex. PW37/F is voluntarily and truthful and has to be acted upon, and has relied upon the decisions in Shankaria v. State of Rajasthan AIR 1978 SC 1248.
3.4 It has further been argued that nonavailability of the advocate or non consultation with the lawyer shall not make the confession void; no effort made during 12.06.2009 to 14.06.2009 to have a meeting with the accused in jail by his family member or his advocate, though as stated by DW3 Shri SGK Murthy the DG Prison is empowered to permit meeting with the under trial prisons even on holidays and has relied upon the decision in Mohd. Ajmal Kasab v. State of Maharashtra (2012) 9 SCC, 1.
23 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 3.5 As regards the charges, it has been submitted by the Ld. Sr. PP that Dr. Th. Kishan Singh was having a mobile phone as stated by his wife PW8 Smt. Romita Devi, PW21 Sh. Kapangkhui Jajo and PW22 Sh. Ramsing Siro and Dr. T. kishen Singh was asked to hand over the mobile phone and was taken over by kidnappers who were armed with firearm (small gun) as deposed that PW21Sh. Kapangkhui Jajo, PW22 Sh. Ramsing Siro and PW26 Sh. Puizatleng Kasar Mahai and the mobile phone Ex.PW8/A has been recovered from the accused by Shri Levi Kachui. Further as deposed by PW12 Shri Pankaj Kumar Pal, DC that he issued a cheque for Rs.30,000/ and gave it to Dr. Th. Kishen Singh and other witnesses have deposed encashment of cheque and handing over of Rs.30,000/ to Dr. T. Kishen Singh and no money was found on the person of Dr. Th. Kishen Singh and this amount was looted by the kidnappers who were the associates of the accused working under his directions while he was alone and as stated by PW26 expenditure has been incurred by his associates in payment of charges for hiring of taxis, purchase of food items and this gives an inference that the abductors have taken that money as no suggestion was given to any of the witness in their crossexamination in this regard, the deceased Dr. Th. Kishen Singh was not in a position to spend anything being in captivity and as such the offence u/s 392/120 B IPC stands proved against the accused.
3.6 As regards the charge for offence u/s 411 IPC, the Ld. Sr. PP has submitted that the mobile phone Ex.PW8/A was robbed on 13.02.2009 from Dr. Th. Kishan Singh who was murdered on 17.02.2009 and the accused came in possession of the mobile after 4/5 days and from accused to Levi Kachui. And there had been dialouge between the 24 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others accused and Levi Kachui about the mobile and accused had the knowledge, that the phone Ex.PW8/A belongs to Dr. T. Kishen Singh when he handed over the phone to Levi Kachui and that knowledge not possible unless specifically informed by his subordinate. And by virtue of theory of agency as contained in Section 10 Indian Evidence Act, the accused is equally responsible for robbery alongwith other accused persons who are beyond the reach of the court.
3.7 It has further been argued that the seizure of the phone cannot be doubted as there is no reason to disbelieve the police witnesses relying on the decisions in Prem Datta Gautam v. State of U.P. AIR 1973 SC 2496 and State of Madhya Pradesh v. Jagdish Jogilal Baloi 1992 Crl.L.J. 746 MP.
3.8 For the charge of offence u/s 364 A IPC, it has been submitted that the deceaseds were abducted alongwith PW21 and PW22 and one more, on 13.02.2009 as deposed by PW21 and PW22, and there was a demand of ransom of Rs.20 lacs made from the deceased Dr. Th. Kishan Singh. The accused in his confession statement Ex.PW37/F has stated that the deceased Dr. Th. Kishan Singh was known to him by name and designation and had prior knowledge of the meeting in the office of DC Ukhrul and abducted Dr. Th. Kishan Singh to recover the money pocketed by him under NREGHS.
3.9 The demand is first stated to have made in isolation and later on in presence of others as deposed by PW22 and PW26. And it is not necessary that the 25 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others ransom demand should reach the family in view of the decision in Malloshi v. State of Karnataka (2004) 8 SCC 95 and the demand made to the victim is admissible u/s 32 IEA and the accused has also stated the same in his confessional statement Ex.PW37/F. Further PW22 has deposed that he had heard about the ransom from the abductors and also from the victim and being direct evidence is admissible u/s 60 IEA. It has been submitted that the intention to kill Dr. T. Kishen Singh and others was available since beginning when three Thangkul persons were released and abduction was for the sole purpose of demand of ransom and since ransom was not paid, they were murdered. The cause of death of Dr. Th. Kishan Singh stated to be injury caused to the brain vide postmortem report Ex.PW2/A and similar findings have been given for other dead persons.
3.10 The time of death as given by PW2 Dr. Pradip Kumar Singh in his report Ex. PW2/A is stated to have been corroborated by PW26 Sh. Puizatleng Kasar Mahai who has deposed that three were alive till midnight.
3.11 It has further been submitted that the case of prosecution as regards death of the three is concerned matches with the deposition of PW2 Dr. Pradip Kumar Singh, PW26 Sh. Puizatleng Kasar Mahai and PW29 Ms. Hatlam alias Hatzalam who had first seen the three dead bodies, with postmortem reports and not with the confession. It is argued that as per postmortem reports, cause of death is the injury caused to the brain and such type of injuries cannot be caused by beating, and the statement in confession in this regard is not exculpatory. Further beating being the reason of death stated by the accused 26 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others in his confession is hearsay evidence, not admissible in law and is incorrect on facts in view of deposition of PW26 Sh. Puizatleng Kasar Mahai. And on this aspect the confession is to be excluded and not to be accepted as a whole as this part is not possible in view of the deposition of other witnesses and relied on the decision in Bhagwan Singh Rana v. State of Haryana AIR 1976 SC 1797.
3.12 The Ld. Sr. PP has further argued that identity of the coconspirators, date, time and place of abduction, where the abducted persons taken and kept as stated that the accused in confession is fully corroborated by the deposition of PW11 Shri S. Bhubaneshor Singh and PW 26 Sh. Puizatleng Kasar Mahai and could not have been known to the accused unless he himself was involved in the conspiracy and as such the confession is truthful.
3.13 The Ld. Sr. PP also submitted that PW6 Shri Ningshen Khurye Wungshung who is the brother of the accused used to speak to the accused from his office land line number on the mobile phone of the accused and has spoken to him on 13.02.2009 as well at about 11.00 AM and on 13.02.2009 only the accused had issued orders of abduction as stated in his confession, and as per PW41 Shri L. Ronel Singh the location of mobile was at Ukhrul and as such accused was present in Ukhrul to organize everything.
3.14 As regards the charge for offence u/s 15 r/w 16 Unlawful Activities Act, it is submitted that after the news of abduction and murder of three non naga persons broke 27 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others out, there had been widespread protests, dharna and disturbances for which curfew was imposed as deposed by PW20 Mrs. Ch. Sachi and all this was done to create a fear/terror in the mind of public and as such the offence u/s 15 and 16 of the Act stand proved against the accused.
4. On the other hand, Ld. Counsel for the accused has submitted that there is no evidence brought on record to prove the charges as framed.
4.1 It has been argued that there is no evidence of any meeting of mind to kidnap and to demand ransom; purpose of kidnapping not proved, no evidence that they wanted to kill them, no statement about robing of Rs.30,000/ and as such no offence of criminal conspiracy is made out against the accused.
4.2 It has further been argued that the confession has been retracted in the June/July 2009 and again in August 2009 and retracted confession is a very weak evidence and can be considered in evidence with several cautions.
4.3 The Ld. Counsel for the accused submitted that the application dated 10.06.2009 Ex.PW43/J nowhere states about willingness for making confession and refers to statement only and the procedure prescribed for recording a statement and for recording a confession are different and the application Ex.PW43/J which itself is a result of pressure cannot be said to be a desire to make a confession.
28 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 4.4 It has further been submitted that copy of the application Ex.PW37/B was not supplied to the accused nor the application was moved in the presence of the counsel for the accused at the first instance when his counsel was present rather was moved later on when his counsel was not present on 12.06.2009 and no any legal assistance made available to the accused when the application Ex.PW37/B was moved, the confession recorded in such circumstances is vitiated and cannot be used against the accused.
4.5 The Ld. Counsel for the accused has further submitted that the procedure laid down in section 164 and 281 Cr.P.C. has to be strictly followed while recording confession which has not been followed as no question as to why he (the accused) is making a confession or what has prompted the accused to make a confession, was asked from the accused; no assurance of non remand to police custody if refused to make a confession which was necessary to remove the fear of police was given; no warning was given and the consequences of making a confession not explained to the accused on 12.06.2009.
4.6 Still further PW43, the investigating officer, was present when the accused stated 'yes' to the making of the statement on 12.06.2009 who should not have been present at that time; and was also present on 14.06.2009 when the confession was recorded though there was no direction on 12.06.2009 for appearance of the IO on 14.06.2009; the presence of IO throughout on 12.06.2009 and 14.06.2009 had 29 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others psychological impression on the accused and creates doubts on the proceedings and as such confessional statement Ex.PW37/F cannot be taken note of.
4.7 It has also been submitted that neither on 12.06.2009 nor on 14.06.2009 the proceedings sheets all pages were got signed from the accused as required under section 381 Cr.P.C.
4.8 Further the confession Ex.PW37/F has been recorded in haste as no time was given to the accused specifically to reflect and think over on this decision to make a confession; the accused was made to sit alone for three hours on 14.06.2009 without being asked to think over his decision as there there was no problem of time and as stated by PW37 she was prepared to give him the facility of interpreter which would have necessitated adjournment as the interpretor was not readily available. And has relied on the decision in :
1. Sarwan Singh v. State of Punjab 1957 SCR 953
2. Mohd. Ajmal Kasab v. State of Maharashtra (2012) 9 SCC 1
3. Rabindra Kumar Pal alias Dara Singh v. Republic of India (2011) 1 SCC (Cri) 706
4. Alok Nath Dutta v. State of West Bengal (2008) 2 SCC (Crl.) 264 in support of his submissions.
30 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 4.9 It has further been submitted that no evidence collected by investigating agency which corroborate the confession Ex. PW37/F made by the accused and there are inconsistencies in evidence visavis confession of the accused. And the surrounding circumstances, like non presence of any advocate at the time of moving of application, right to consult a lawyer not being allowed to be exercised, nonmentioning of time for reflection, nonexplaining the consequences of confession, non obtaining of signature of the accused on proceedings conducted on 12.06.2009 and all the pages of the proceedings conducted on 14.06.2009, non recording of satisfaction as to voluntariness of confession on 12.06.2009 and the accused being forced to make a confession, are such that the confession cannot be accepted/believed relying on the decisions in :
1. Mohd. Hussain alias Julfikar Ali v. State (Govt. of NCT), Delhi 2012 Crl. L.J. 1069 (SC)
2. Babubhai Udesinh Parmar v. State of Gujarat (2007) 1 SCC (Cri) 702
3. Mt. Ram Sakhia v. Emperor AIR 1934 Patna 651
4. Palvinder Kaur v. The State of Punjab AIR 1952 SC 354 4.10 Further it is submitted that the confession has to prove the charge, however the confessional statement Ex. PW37/F is not commensurate with the charge.
4.11 The Ld. Counsel for the accused further submitted that the confession is not truthful as the confession does not say about demand of Rs.20 lacs as ransom and plan of causing death on failure to pay ransom or that they intended to spread insecurity 31 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others and cause danger to the integrity of India; there is no mention of robbing of cash of Rs.30,000/ from the persons kidnapped.
4.12 Still further as per confessional statement, the three died of beatings given to them by the kidnappers and as per deposition of PW26 they had firearms and when they were in possession of fire arms, it was very easy to kill them by shooting and it is very unlikely that the persons in possession of fire arm shall cause death by beatings and as such what has been stated in confessional statement is highly improbable and cannot be accepted as truthful.
4.13 The Ld. Counsel for the accused also submitted that the accused was the leader of the camp and was interacting with civil authorities and it was not possible that Dr. Th. Kishan Singh was not knowing him, and as such there was no reason for Dr. Th. Kishan Singh to ask as to 'who is their leader' as deposed by PW2.
4.14 It has further been submitted that the authority to issue cheques under the NREGA Scheme was the DC and the accused being in interaction with civil authorities, it is not possible that the accused does not know as to who is authority to issue cheque to headman etc. and as such the confession is wrong which cannot be believed.
4.15 It has further been submitted that the CBI is otherwise not relying on the confessional statement of the accused as in the charge sheet presented in Ukhurul Court 32 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others on 03.11.2009 there is no mention of any confessional statement having been made by the accused.
5. CRIMINAL CONSPIRACY Criminal Conspiracy has been defined u/s. 120A IPC as:
When two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation : It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
5.1 It has been laid down in State of Maharashtra and others v.
Som Nath Thapa and Others (1996) 4 SCC 659 that to establish a charge of conspiracy, knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, unlawful intent may be inferred from the knowledge itself. And when the ultimate offence consists of a chain of actions, it would not be 33 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.
5.2 It has been held in Noor Mohammad Mohd. Yusuf Momin v. The State of Maharashtra AIR 1971 SC 885 that criminal conspiracy postulates an agreement between two or more person to do, or cause to be done, an illegal at or an act which is not illegal, by illegal means. Such an agreement itself is an offence even if no step is taken to carry out that agreement.
5.3 It has also been observed that conspiracy from its very nature is generally hatched in secret and it is therefore extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, criminal conspiracy can be proved by circumstantial evidence and is largely inferential. Surrounding circumstances, antecedent and subsequent conduct among other factors, constitute relevant material. And once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes according to the law of evidence, relevant for proving both conspiracy and the offence committed pursuant thereto.
34 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 5.4 The elements of criminal conspiracy as stated in Chaman Lal and Ors. v. State of Punjab & Anr. 2009 (2) JCC 1188 are
(a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object.
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
It has further been laid down that the essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed and unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence.
It has also been laid down that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
5.5 The decision also lays down that the actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two 35 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.
5.6 Further in Yashpal Mital v. The State of Punjab AIR 1977 SC 2433 it has been laid down that the very agreement, concert or league is the ingredient of the offence of criminal conspiracy u/s. 120A IPC and it is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. There may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators.
It has further been laid down that even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it would not affect the culpability of those others they are associated with the object of the conspiracy.
5.7 In E.G. Barsay v. The State of Bombay AIR 1961 SC 1762 it has been held that the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy though the illegal act 36 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act.
6. CONFESSION 6.1 As to what amounts to confession, the Supreme Court in Palvinder Kaur v. State of Punjab AIR 1952 SC 354 has held that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence and an admission of a gravely incriminating fact even a conclusively, incriminating fact, is not of itself a confession. A statement that contains self exculpatory matter cannot amount to a confession if the exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed. A statement which when read as a whole is of exculpatory nature and when the prisoner denied his guilt on confession it cannot be used in evidence to prove his guilt.
6.2 The decision in Sarwan Singh v. The State of Punjab (1957) SCR 953 has held that the act of recording confession under section 164 of the Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take care to see that the requirements of sub section (3) of section 164 are fully satisfied.
6.3 As regards how the confession has to be recorded, the Supreme Court in 37 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Shivappa v. State of Karnataka (1995) 2 SCC 76 the Supreme Court has held that the provisions of Section 164 Cr. P.C. must be complied with not only in form, but in essence and before proceeding to record the confession 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.
6.4 It has also been held that Section 164 Cr. P.C. emphasize an inquiry by the Magistrate to ascertain the voluntary nature of the confession and non compliance of Section 164 Cr. P.C. and the rules framed by the High Court goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
6.5 In Babubhai Udesinh Parmar v. State of Gujarat (2007) 1 SCC (Cri.) 702 it has been held that Section 164 Cr. P.C. provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with in letter and spirit and not in a routine or mechanical manner.
6.6 In Bhagwan Singh v. State of M.P. (2003) 3 SCC 21, the Supreme Court has held that first precaution that the judicial magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency and in Rabindra 38 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Kumar Pal alias Dara Singh v. Republic of India (supra), the Supreme Court has laid down the principles that emerge with regard to section 164 Cr. P.C.
(i) The provisions of Section 164 Cr. P.C. must be complied with not only in form, but in essence.
(ii) 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.
(iii) A magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured for protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii)Noncompliance with Section 164 Cr. P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii)During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording 39 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of accused, no police or police official shall be present in the open court.
(x) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement.
It has further been held that section 164 Cr. P.C. requires strict and faithful compliance with subsections (2) to (4), the failure to observe safeguards not only impairs the evidentiary value of confession but casts a doubt on the nature and voluntariness of confession on which no reliance can be placed.
6.7 In Sarwan Singh v. The State of Punjab (supra) it has been observed that even if a confession is voluntary, it must also be established that it is true and for that purpose, it is necessary to examine it and compare it with the rest of the prosecution evidence and the probabilities of the case. And usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement.
It has also been stated that it is open to the court to convict an accused on his confession even though he has retracted his confession.
6.8 And in Devender Prasad Tiwari v. State of UP AIR 1978 SC 40 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 1544, it has been held that before a confessional statement made under section 164 Cr. P.C. can be acted upon must be shown to be voluntary and free from police influence.
6.9 In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600, also it has been held that deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law, however, before acting on a confession the court must be satisfied that it was freely and voluntarily made.
It has also been held that a confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of the confession. The confession should have been made with full knowledge of the nature and consequences of the confession.
6.10 Further in Babubhai Udesinh Parmar v. State of Gujarat (Supra) it has been held that a judgment on conviction can also be based on a confession if it is found to be truthful, deliberate and voluntary and if clearly proved. And the voluntary nature of confession depends upon whether there was any threat, inducement or promise and its truth is judged on the basis of entire prosecution case.
6.11 In Shankaria v. State of Rajasthan (supra) the Supreme Court has observed :
It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the 41 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others accused primarily on the basis of his confession recorded under section 164 Cr. P.C., the Court must apply a double test :
(1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and truthworthy?
Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.
It has further been laid down that There is no statutory provision in Section 164 Cr. P.C. or elsewhere, or even an executive direction issued by the High Court, that there should be an interval of 24 hours or more between the preliminary questioning of the accused and the recording of his confession. The condition precedent for recording a confession by the Magistrate in the course of the 42 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Police investigation is provided in section 164(2) Cr. P.C. which mandates the Magistrate not to record any confession, unless upon questioning the accused person making it, he has reason to believe that it is being made voluntarily.
It has also been laid down :
How much time for reflection should be allowed to an accused person before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the accused, is to ensure that he is completely free from Police influence. If immediately before the recording of the confession, the accused was in judicial custody beyond the reach of the investigating police for some days, then such custody from its very nature, may itself be a factor dispelling fear or influence of the police from the mind of accused. In such a case, it may not be necessary to send back the accused person for any prolonged period to Jail or Judicial Lockup.
6.12 In Alok Nath Dutta and others v. State of West Bengal (supra), it has been held that Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances..... form the basis for conviction and for that purpose the court has to satisfy itself in regard to (I) voluntariness of the confession; (ii) truthfulness of the confession (iii) corroboration It has further been held that a detailed confession which would otherwise be within the special
43 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified.
The Supreme Court also laid down that the Court's scrutiny in regard to the acceptability of a judicial confession would not stop only because there was a failure on the part of the defence counsel to cross examine the said witnesses, more so when the offence is said to be a grave one.
It further laid down that in a case where confession is made in presence of a Magistrate conforming the requirements of section 164 Cr. P.C. if it is retracted at a later stage, the court should probe deeper into the matter and must look for truthfulness and voluntariness thereof. The court must play a proactive role in unearthing objective evidence forming the backdrop of retraction and later the examination of such evidence of retraction.
The Supreme Court further laid down that the court should be a little slow in accepting the confession although the accused may not be able to justify the reasons for his retraction. And if a retracted confession is found to be corroborative in material particulars, it may be the basis of conviction and no judgment of conviction shall be passed on an uncorroborated retracted confession.
It also laid down that the retracted judicial confession should be corroborated by other independent and cogent evidence which would lend adequate assurance to the court that it may seek to rely thereupon. And requires the general assurance that the retraction was an afterthought and the earlier statement was true.
44 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 6.13 In Bharat v. State of U.P. (1971) 3 SCC 950, It has been held that the confession must fit into the proved facts and not run counter to them.
6.14 In Purnanada Das Gupta and others v. Emperor AIR 1939 Cal. 65 (FB) it has been held that normally a confession of guilt is the most conclusive evidence which one can have. But if that confession is retracted then it is certainly desirable, if not absolutely necessary, that there should be some corroboration of what the accused has said about himself even in respect of his own actions and an accused person cannot get aid of a statement merely by saying that he retracts it or that he withdraws it.
6.15 And in Puran v. State of Punjab AIR 1953 SC 459, it was observed that "caution and prudence in accepting a retracted confession is an ordinary rule" and in Balbir Singh v. State of Punjab AIR 1957 SC 216, it was laid down that although if a retracted confession is found to be corroborative in material prosecution, it may be the basis of conviction.
6.16 In Parmananda Pegh v. State of Assam, AIR 2004 SC 4197 in respect of retracted confession, the Supreme Court has held that evidence brought on record by way of judicial confession which stood retracted, should be substantially corroborated by other independent and cogent evidence, which would lead adequate assurance to the Court that it may seek to rely upon.
45 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others
7. Confession of accused Hopeson Ningshen s/o. Shri N. Pishang R/o. Nambashi Khullen, District Ukhrul, that has been recorded without administering oath reads as under:
Before giving my Confessional Statement I want to give a briefing regarding my Background, my Organizational and Nationality. There has been a Cease Fire between Government of India and NSCN/GPRN (National Socialist Council of Nagalim (Nagalim means Nagaland)/Government of the Peoples Republic of Nagalim (Nagalim means Nagaland)). The cease fire has been since the year 1997. There have been peace talks for political solution between Government of India and NSCN/GPRN. It was agreed that the talk should be at the highest level i.e. Prime Minister Level. Secondly, without any percondition. Thirdly, at some third country means outside India, the borders of India.
Under this NSCN/GPRN, we have Army Wing called Naga Army. There, I have been serving as Lieutenant Colonel. Then I was Commandant of Battalion namely Kiusumong Battalion i.e. Naga Army. We have many Battalions as part of Naga Army. Kiusumong Battalion is one of the Battalion under Naga Army. Kiusumong Battalion is one of the Battalion under Naga Army. My jurisdiction was the whole District of Ukhrul which is my own native District. There we the Naga Army under my command have dealing with 46 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others public/civilian freely without any restriction. Dealing means walking together/meeting freely without any restriction i.e. mingling with each other freely. This mingling was possible because of cease fire and peace talks between Government of India and NSCN/GPRN. Even I used to meet DC (Deputy Commissioner) of that District, other Indian Government officials/any Indian Government Official in the District. Though it is used to be informal meetings. Sometimes formal also. Then I used to meet Assam Rifles i.e. Indian Security Forces, 10 Sector Brigade Headquarters located at Somsai, Ukhrul.
I used to meet the DIG, the Addl. DIG and under them there is one Battalion also (17th Battalion Assam Rifles). What I mean to mention and state is that there was no distance or enemical distance between the Office Holders of the Indian Army and that of NSCN/GPRN. There was a good conducive atmosphere. But suddenly, on 19th January, 2009 my Battalion Headquarters i.e. Kiusumong Battalion Headquarters was surrounded by 17th Battalion, Assam Rifles under the command of Colonel Dharmesh Yadav and they were about to raid our headquarters without any prior information otherwise it was Designated Camp. How many Battalions or Headquarters we have to set up was completely known and negotiated with Government of India through Cease Fire Monitoring Group. In that manner, my Kiusumong Battalion was a 47 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Designated Camp. So there was a stand off between Kiusumong Battalion and 17th Assam Rifles for 14 days and night. No firing was there but we were surrounded by them and they were trying to force themselves inside our headquarters but we guarded our Headquarters and we prevented our Headquarters from them. Then they had cut out our Water Supply, Electricity Supply and even Food Supply also. Even the Red Cross Society was not allowed to enter in the Headquarters. That was the situation at that time. Then with the help of/with the initiative of Civil Societies of Tangkhul Naga Long. Long means Union. Tangkhul is my tribe's name. Tangkhul Naga Long formed a Committee with Name "Committee on Shirui Siedge". With the intervention of this "Committee on Shirui Siedge", certain amicable solutions were reached between the Naga Army and the 17th Assam Rifles. Then we shifted our Headquarters to a nearest Designated Camp i.e. at Senapati District of Manipur on 02.02.09 with full understanding and escort with 17th Assam Rifles. So our presence at Ukhrul District Headquarters was restricted by 17th Assam Rifles. This was the background of the situation which was there. Now, I wish to start with my confession.
At this stage, accused Hopeson was keeping silent for 23 minutes. On 13.02.2009, I gave verbal order to my subordinate official Major Abo Sibo to arrest Dr. Kishan Singh and his Accomplice. Dr. Kishan 48 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Singh was Sub Divisional Officer (SDO) of Kasom Khullen Sub Divion of Ukhrul District, Manipur. I gave order of arrest for the purpose of questioning his Corruption Cases. Previously, he was warned about his corruption cases that he force the village Headmen (Many villagers) to put signature on blank cheques. Actually, the SDO is the authority to issue the cheque to the head men. There is one NREGS Scheme according to which the Indian Government shall issue a Job Card to every house holder, that means 100 days wages in a year.
Then again there is NREGS fund given to every villager for material component that means to purchase tools etc. Then this money the SDO kept in his hand that means he was not disemanating the fund to the villagers which supposedly was to be given to them as per the NREGS Scheme. All the villagers used to get job cards but the money and the material components used to be received only through village Head Men/Secretary (In one village one Headmen and one Secretary). The SDO Dr. Th. Kishan Singh used to handover 50% of the fund amount to the village headmen and the rest of 50% he used to keep in his own hand without disbursing the said amount to the villagers. When he was questioned about it by village Headmen about how he kept 50% with him then his reply was that this 50% should not be given to the villagers because he 49 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others deducted it to hand it over to militants/UGs (Under Grounds). That was the case we wanted to question him about and he was previously warned about it also by my Subordinate Officials with my consent and order. Then at the time when warning was given to him, he had assured us that he shall not indulge in any such corruption activity again and that he shall not repeat it again. He did not rectified his mistake despite warning and he kept on indulging in the same activities and did not comply with the warnings issued earlier. For this and therefore, he was arrested alongwith his accomplice on 13.02.2009 from Ukhrul. He was in a meeting with District Commissioner at Ukhrul Headquarters. After conclusion of the meeting while he was returning back to his posting place at Kasom Khullen Sub Division Head Quarters, he was arrested while on way only 12 kms. from Ukhrul Headquarters. I was reported that the place of arrest was Naga Gate. Then he was taken away to a nearby village called Langdang village. Alongwith Dr. Kisan, there were Mr. Token (Handpicked Cashier of Dr. Kishan that means he was not using the actual official who was appointed cashier but was using by his own will and discretion some other person who is Mr. Token), and Driver Rajen and other three Tangkhuls (means Tribals) exactly I don't remember the name of those three Tangkhuls. At the same time, these three Tangkhuls were not related with this case. So after 50 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others identification of these three Tangkhuls, they were released the very next day i.e. 14.02.09 from Langdang village by my Major Abo Sibo with my orders. On 14.02.09, Dr. Kisan and his two staffs i.e. Mr. Token and Driver Rajen were shifted from Langdang village to Seikhor village because some Indian Security Forces were disturbing the situation there. All this was done by my Subordinate Official Major Abo Sibo and his party/group. Sargent Major Themshang and Corporal Johny were part of Major Abo Sibo's group. They kept Dr. Kisan, Mr. Token and driver Rajen for three days in Seikhor village i.e. 13th to 14th at Langdang and shifted on 14th Evening to Seikhor village and kept there till 16th February, 2009. During 13th to 16th February, 2009 when questioned about misappropriation of public funds then Dr. Kisan confessed that 10 to 20 Laksh was the misappropriated fund amount of NREGS Scheme collected by him and kept by him and the he said he was handed over that fund amount to UGs (Under Grounds) but actually he had not handed over the whole amount to UGs and that he had kept some of the amount with himself/used some of the amount by himself. UGs are MNRF (Manipur Naga Revolutionary Front) and UNPC (United Naga Peoples Council) and many others but I remember only these two. So my intention was to make recovery from him of that misappropriated fund as to what he has done with 51 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others that misappropriated fund, what amount exactly he has handed over to UGs and what amount he has kept with himself and where is the total amount as the public money must go to the public and to UGs or anyone else. Dr. Kisan was just telling lie to Major Abo Sibo and his party. I told Major Abo Sibo and his party to contact the family members of Dr. Kisan through his own mobile but the number he gave as his own wife's number was not the correct number and that number was not working as he actually gave his own mobile number to my boys inclusive of Major Abo Sibo so he cheated and acted smart on us. Again he pretended to be sincere and asked Major Abo Sibo and other of his party/group members to release him so that he can get the misappropriated fund amount which he did not keep in his own hand but he had kept within Bank so he submitted that he needed to sign some cheques to draw the money from the Bank. That was a story he made in an attempt to escape from our hands. He said that Mr. Token and driver Rajen can be kept in the custody of Major Abo Sibo and his group while he can be released/he can go to get the money. He said that he would come back with the money and that after he comes with the money all should be released as per his request made to Major Abo Sibo and his group. It was revealed to Major Abo Sibo and his group on 16.02.09 that the mobile number given by Dr.Kisan as his wife's 52 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others number was actually his won number and that he was actually cheating on them. Major Abo Sibo had reported to me on 16.02.09 around 11:00 AM to 12:00 Noon about the above mentioned factum of mobile number and the cheating by Dr. Kisan, I then gave verbal order on phone to Major Abo Sibo that some whipping and beating is required to be given to all of three of them to extract the correct information. In the course of interrogation during the day in peripheral part of village Seikhor, Major Abo Sibo reported to me that at around 56PM on 16.02.09, the three of them in captivity started fighting and hitting back while they were being whipped and beaten up. They got up while being whipped and attacked my boys (Major Abo Sibo and his party as per the report there were only two officials as mentioned above along with Major Abo Sibo, regarding others there is no report). My boys i.e. Major Abo Sibo, Sergeant Major Themshang and Corporal Jonney had small arms (9MM Pistol) with them, so with the help of that arm, they could over power Dr. Kisan, driver Rajen and Mr. Token as they got frightened looking at those arms. So in fit of anger, my boys gave beatings in a very severe manner. Because of this severe beatings by Major Abo Sibo, Sergeant Major Themshang and Corporal Johny to Dr. Kisan, Mr. Token and Driver Rajen, all three of them dies as was reported to me by Major Abo Sibo on 16.02.09 at around 56 PM. I, hearing that 53 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others news myself got very panicky and confused means I could not decide immediately as to what next to do as it was not our intention to kill them but only to threaten them so that correct information about the misappropriated funds can be extracted from them and public money be put to the use it is supposed to be put to so that public money can be handed over to the rightful eligible public persons. The situation in Ukhrul Town was very tensed so to divert the attention, I after deliberating upon the issued decided and ordered Major Abo Sibo and other two party/group members to dumb the dead bodies of Dr. Kisan, Mr. Token and Driver Rajen on NH39 so that the dead bodies can be easily discovered/seen and so that the respective family members can take their dead bodies. I did not tell the exact place on NH39 where those dead bodies were to be dumped as part of my order. Then as per the orders the dead bodies of Dr. Kisan, Mr. Token and Driver Rajen were dumped on NH39. The distance between Sheikhor village and H39 is around 100 kms. Then on 17th the very n ext day at around 1011 AM after Major Abo Sibo, Sergeant Major Themshang and Corporal Johny came back to Ukhrul Town, I met Major Abo Sibo and I received a detailed report but it was only verbal. Then just taking those accounts I told Abo Sibo to be at Ukhrul Town in a secure way and myself also have to report to my higher authorities. Though it was 54 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others not intentional killing I felt that only because of my order that fateful death of those three persons happened. So I decided myself to own the moral responsibility of the killing. Any necessary legal action by my government i.e. GPRN/NSCN be given to me for the death of those three persons. So I went and reported the whole thing to my Army Authorities at General Headquarters, Naga Army. It was on 19.02.09 that I reported the matter to my Higher Authorities at GHQ (General Headquarters). Then I was arrested by my Authorities and was kept in custody. Then on 28.05.09 I was handed over to the CBI by my authorities through Naga Hoho (Naga's Apex Body of Civil Society). This Naga Hoho Committee had received my custody from the hands of my Authorities from GHQ. Then they harbored me upto Dimapur Airport which is in Nagaland State and handed over me to CBI. On 28.05.09, that very day itself by a small Aircraft I was taken to Calcutta. Then we halted there for that night in Calcutta Central Lock Up. Then the next day we flied back to Imphall Airport. Two CBI Inspectors were there with me. One was Inspector Khamrang and KR Kabui. Then at Imphal at about 11 AM we reached Imphall Airport and I was produced before Ukhrul District Magistrate (actually he was CJM of Ukhrul but he came down to Imphal and waited for us there at airport only and I was produced before him at the airport only). It was a mobile court or something like that where 55 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others I was produced. Then this SP Verma was there and one Public Prosecutor ( I do not know him but Public Prosecutor was there). At that time, I did not have any legal assistance. Then on 29.05.09 itself with that small Aircraft, Inspector Khamran was there and Inspector KR Kabui was replaced by Inspector Alam Hangsing alongwith SP G. Verma as my Investigating Officer. I was brought to Delhi CBI Headquarters and kept there in the custody for 14 days. Many statements were given as I said here and after that on 12.06.09 I was brought here in Court no. 38 and sent to Judicial Custody. Personally I have not seen anyone being killed but it is only through information that I have come to know about it and whatever I have spoken is truth as reported to me by Major Abo Sibo.
8. The Ld. Counsel for the accused has submitted that the CBI has not relied upon the confessional statement of the accused as no reference of the confessional statement has been made in the charge sheet filed before the CJM Ukhrul.
8.1 The submission of the Ld. Counsel for the accused is without any merit as the confessional statement of the accused dated 14.06.2009 finds mentioned at S. No. 31 of the list of documents and the name of the Ld. Magistrate Ms. Shelly Arora finds 56 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others mentioned at S. No. 50 of the list of witnesses, and as such it cannot be said that the CBI has not relied upon the confessional statement of the accused.
9. It has been stated that the accused has first retracted the confession vide application dated 26.06.2009 and secondly vide application dated 20.08.2009.
9.1 Through the application dated 26.06.2009, the accused has stated that he rebuts all the statements made or signed before the CBI during his custody.
9.2 The application dated 26.06.2009 reads :
1. That the applicant/accused has made discloser statement and has signed on various blank papers under duress during the CBI custody.
2. That the applicant/accused was illegally produced before the Link Magistrate on 14.06.2009 subsequent to the previous production before The Hon'ble CMM Court on 12.06.2009 without duly informing to the Counsel of the accused and was forced to make a statement before the Court by the prosecution.
3. That the applicant/accused therefore wishes to rebut all the statements made or signed before the CBI during its custody.
57 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 9.3 The CBI in reply dated 07.08.2009 has stated that the statements made before it by the accused was given out of the free will and was not made to sign any of such statements. And during the period of custody, his wife, relatives and the counsel of the accused were allowed to meet him several times and no complaint of any kind was made by the accused or his counsel or his relatives to CBI or the court.
9.4 In his application dated 20.08.2009 the accused has stated that CBI put pressure on the applicant/accused and made him sign several blank sheets of papers and has invented facts about the accused and the circumstances of the arrest and the crime they have given a communal colour to the murders; CBI had hoodwinked the applicant/accused to write an application stating that he wanted to make a confession on June 12th 2009 while the applicant/accused was in their custody; the CBI refused to allow the applicant/accused to any lawyer and dictated a statement on his behalf before the CMM S. Arora at Tis Hazari Court; applicant/accused was not given a copy of this so called confession despite repeated requests; that applicant is a Naga from the Naga inhabited Hill District of Manipur bordering Burma and he had no access to any lawyers and the family member requested the help of some junior lawyers from his community practicing in Delhi who have filed an application without instructions and it is only from August 7, 2009 that the applicant/accused was able to engage a senior lawyer Mr. N.D. Pancholi and explain the circumstances of the so called confession made and retract them as false and made under compulsion, by deceit and without being allowed to consult a 58 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others lawyer; that the applicant/accused has neither admitted nor is he involved or responsible for the murder of the SDO and his subordinates, the said murder was condemned equally by the Nagas and Meiteis; that he has not made any disclosure statement to police/CBI;
the application dated 26.06.2009 filed in this court was filed without any consent or approval.
9.5 The accused through his application dated 20.08.2009 has disowned his application dated 26.06.2009 stating that the same was filed without his consent and approval.
9.6 The CBI in its reply dated 11.09.2009 to this application has the Ld. Counsel for the accused has addressed arguments on the application dated 26.06.2009 on 24.07.2009 in presence of the accused who did not raise any objection to that on that day.
9.7 Further denying having ever pressurized the accused for making a false statement or having obtained signatures on blank papers, the CBI has stated that the accused has not reported any such fact to the superior officers nor to the court and the statement was made by the accused out of his free will and most of the disclosures made by him were within his special knowledge.
59 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 9.8 It has further been stated that during the police custody his advocates and relatives were frequently allowed to visit the accused, on several occasions.
9.9 The accused had also filed rejoinder to the application wherein it is stated that the accused could not fully comprehended as to what kind of proceedings were undertaken on 24.07.2009. And further stated that Inspector Alam Hongsing Kuki wrote the statement which the accused was forced to copy.
9.10 In Sarwan Singh v. The State of Punjab (supra) it has been observed that usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. And as regards retracted confession, it has been laid down in Alok Nath Dutta & others v. State of West Bengal (supra) that the court should probe deeper in the matter and must look for truthfulness and voluntariness thereof and the court must play a proactive role in unearthing objective evidence forming backdrop of retraction. And if a retracted confession is found to be corroborative in material particulars it may be the basis of conviction.
9.11 The retracted judicial confession should be corroborated by other independent and cogent evidence which would lend adequate assurance to the court it may seek to rely thereupon. It requires the general assurance that the retraction was an 60 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others afterthought and the earlier statement was true.
9.12 It has further been held in Sarwan Singh v. State of Punjab (supra) that corroboration does not mean that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. Corroboration means necessary assurance that the main story disclosed by the approver is reasonable and safe to be treated as true. And such corroborative evidence, however, need not be sufficient for sustaining the conviction of the accused.
9.13 In Dagdu & others v. State of Maharashtra AIR 1977 SC 1579, it was observed that evidence is "corroborated and material particulars" means that there is some independent evidence to incriminate a particular accused in the commission of the crime and nothing more.
10. The statement Ex.PW37/F of the accused does not contain any exculpatory matter. The confession Ex.PW37/F first details about the organization NSCN and the accused has narrated the facts as to how and why the abduction was done (though he has described it as arrest), the names of the persons abducted (SDO Kishan Singh, cashier Token, driver Rajen; the place from where they were abducted (Naga Gate, Ukhrul), the names of his subordinates who has executed the abduction (Major Abo Sibo, Sergeant 61 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Major Thamshang and Corporal Johny)l how many of them were released (three Tangkhulstribals), why they were released, the place at which they were initially taken (Langdang village) and the places where they were shifted (Seikhar village and Senapati), asking his subordinate to give whipping and beating to the three captives, givng of severe beatings to the captives and their death; dumping of the dead bodies at Senapati near NH39 and thereafter meeting with Major Abo Sibo at Ukhrul on 17.02.2009 at about 1011 AM and reporting of the matter to his higher authorities at General Headquarter, Naga Army, and his own arrest, keeping in custody by Naga Army.
10.1 The statement Ex.PW37/F, as stated above, does not contain any exculpatory matter. And the bold narration of facts as given by the accused is inculpatory as regards he himself and his subordinates Major Abo Sibo, Sergeant Major Thamshang and Corporal Johny, and as such amounts to confession.
11. PW43 has deposed that during the police custody remand advocates of accused, family members including his wife and people from his community used to come and meet him almost on daily basis and they were allowed to meet the accused and he was free to take legal advice. DW2 Ms. K. Joyrita who is the wife of the accused has also deposed that she had met the accused in the CBI Headquarter while he was in police custody and PW43 during his crossexamination has denied the suggestion that he stated wrongly that during the police custody remand the lawyers, family members and friends 62 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others had been regularly visiting the accused on daily basis and also denied that only two advocates were allowed to meet the accused and that too for 510 minutes in the presence of CBI officials or that the advocates were not allowed to talk to the accused freely.
11.1 The accused in his statement u/s 313 Cr.P.C. in answer to Q420 admitted that his family members, persons belonging to his community and advocates were allowed to meet him during the police custody remand, however these meetings were for short duration lasting for 10 to 15 minutes and were in presence of CBI officers conversant with Tangkhul language and in reply to Q421 stated that he was not allowed to talk freely and it was not legal advice in true sense.
11.2 Absolutely nothing brought on record to show that accused Hopeson Ningshen was improperly treated by the CBI during police custody rather he was extended all facilities of meeting with his lawyers; family members including his wife and people from his community as stated by PW43 the IO and DW2 the wife of the accused.
11.3 The deposition of PW43 and DW2, and the admission of the accused in his statement u/s 313 Cr.P.C. leaves no doubt that during the police custody remand, the accused was allowed to meet his family members, people from his community and advocates, and in fact all of them did meet the accused during the police custody remand.
12. PW43 has further deposed that the accused was produced before the 63 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Magistrate on 12.06.2009 on expiry of the police custody remand and on that day he also moved the application Ex.PW37/B for recording of confession of the accused stating that accused has expressed his willingness to make a statement before a Magistrate vide his application dated 10.06.2009 Ex.PW43/J in his own handwriting.
12.1 PW43 has further deposed that on 10.06.2009 one advocate came to meet the accused at CBI Headquarter, New Delhi during the police custody remand and thereafter the accused firstly made a request orally and then gave it in writing vide Ex.PW43/J that he is willing to give a statement before a Magistrate. And in his cross examination denied the suggestion that he has wrongly stated about meeting of an advocate with the accused on 10.06.2009 and also denied the suggestion that no advocate was allowed to meet the accused on 10.06.2009. During his crossexamination PW43 produced a photocopy of the pass dated 10.06.2009 Ex.PW43/DB which was taken on record whereby meeting with the advocate was allowed and also denied the suggestion that Ex.PW43/DB is a fabricated document.
12.2 The accused in his statement in reply to Q422 stated that he does not remember whether any advocate met him on that date, however, denied having expressed his willingness to make a statement and in reply to Q423 stated that he was forced to write the willingness Ex.PW43/J and he was not knowing as to what statement he is to make before the Magistrate and as such there was no question of expressing any willingness.
64 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 12.3 PW43 in his crossexamination recorded on 19.12.2012 denied the suggestion that the accused never stated or gave in writing while in police custody that he was willing to make a statement before the Magistrate. And denied the suggestion that the request of accused for giving statement was falsely prepared by him and on his dictation by Insp. L. Hangsingh. He also denied the suggestion that firstly the application in the name of accused was written by Insp. L. Hangsingh and then on his instructions another application was got written from accused forcibly in the handwriting of the accused.
12.4 PW43 has further deposed that the application Ex.PW37/B was assigned to a Magistrate but perhaps that Magistrate was busy and that application Ex.PW37/B was marked to PW37 and the accused was produced before PW37.
12.5 The accused was produced before three Magistrates on 12.06.2009 - one the Chief Metropolitan Magistrate, second Ms. Jyoti Kler Metropolitan Magistrate and third Ms. Shelly Arora PW37, however, before none of them he made any complaint of any torture, harassment, force, pressure etc. nor the accused stated of any torture, harassment, force, pressure etc. while in police custody in his statement u/s 313 Cr.P.C.
13. When the accused is produced before the Magistrate by the investigating officer it is of utmost importance that the mind of the accused persons should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him 65 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others adequate time to consider whether he should make a confession at all as laid down in Sarwan Singh v. The State of Punjab (supra).
13.1 In the proceedings dated 12.06.2009 Ex. PW37/C it has been recorded that the accused was already remanded to jail custody till 26.06.2009 and was produced from jail lock up which reflects that the accused was already out of the any possible influence of police. And further after the proceedings before PW37 on 12.06.2009, the accused was sent to jail and remained in judicial custody. Still further there is nothing on record to show that any CBI / police official contacted or tried to contact the accused once he was sent to judicial custody on 12.06.2009, and as such the accused was out of any possible influence of police.
13.2 The proceedings dated 12.06.2009 Ex.PW37/C further records and PW37 has also deposed that when accused was produced before her, she made enquiry as to whether he wishes to make any statement and get it recorded before the Magistrate, which he answered in affirmative saying "Yes off course, but not today."
13.3 The accused in his statement u/s. 313 Cr. P.C. in answer to Q. 431 admitted having stated so before the Magistrate PW37 and the Magistrate PW37, observing that the accused needs time for himself to prepare for the eventuality if any, and keeping in view the legal mandate, adjourned the recording of statement to 14.06.2009.
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14. The proceedings dated 14.06.2009 Ex.PW37/D records and PW37 deposed that the accused was again asked as to whether he wishes/intends to make a confessional statement before a Magistrate or not. And he responded saying "Yes, I want to make a Statement".
14.1 The accused in his statement u/s 313 Cr.P.C. in answer to Q435 and Q436 admitted having been asked and responded uttering the said words, however, stated that he said so because he was taught by the IO to say so.
14.2 In view of the deposition of PW43 and the entry pass Ex.PW43/DB it stands established that an advocate had met the accused on 10.06.2009. Further, the deposition of PW43, PW37 and the proceeding Ex.PW37/C dated 12.06.2009 and Ex. PW37/D dated 14.06.2009 the tenor of the words and expressions used by the accused in reply to the question of PW37 and the answer of the accused to Q431, Q435 and Q436 in his statement makes everything clear that the accused very well knew and was very much willing to make a statement and had also in mind as to what he has to state before the Magistrate and had he not known and not willing, he would have never answered with words "Yes, of course, but not today" and "Yes, I want to make statement", which reflect that he had made up his mind to make a statement and also very clear about as to what to state, and was totally out of any police influence.
15. In answer to Q423 in his statement the accused has stated that he was 67 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others forced to write the application Ex.PW43/J. In his crossexamination dated 19.12.2012 PW43 has denied the suggestion that he forced the accused to give a statement before the Magistrate as per his wishes and according to the contents told to him (the accused) by him (PW43). He also denied in his crossexamination dated 03.01.2013 that he forced, pressurized and tricked the accused to go before the Magistrate and that he told the accused as to what he has to state before the Magistrate. As stated above, the accused was produced before three Magistrates on 12.06.2009, however, he did not inform any of three Magistrates that he has been forced to write the willingness Ex.PW43/J. Further in answer Q431 he has admitted that that when asked by PW37 about his willingness to make a statement, he said "Yes, of course, but not today". The use of these words which are reflective of comfort and confidence falsify the answer of the accused to Q423 in his statement u/s 313 Cr.P.C. that he was forced to write the willingness Ex.PW43/J as a person acting under force will not use such words.
15.1 And in view of the answers given by the accused to question nos. 423, 431, 435 and 436, the expressions used by the accused in response to questions asked by PW37, and his conducts not informing any of three Magistrates, the question whether he expressed his willingness in writing or was forced to write Ex.PW43/J becomes insignificant and meaningless and the submissions of the Ld. Counsel for the accused that the presence of IO PW43 on 12.06.2009 when the accused said 'Yes' vitiates the the confessional statement, cannot be accepted and is not of any help to the accused.
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16. In her deposition PW37 has deposed that she fixed the matter for 14.06.2009. In his statement u/s. 313 Cr. P.C. in answer to Q432 the accused has stated that the date was given against his wish and he asked for 45 days time to consult his lawyer. However, in answer to Q431 in which he admitted having said 'Yes, of course, but not today', he did not state that while saying so he asked for 45 days time.
16.1 In her cross examination PW37 stated that the accused has not requested the particular date i.e. 14.06.2009, but the said date was fixed keeping in view the other one already fixed. She has further stated in her crossexamination that on 14.06.2009 she was working as Duty Magistrate during summer vacation and for that reason she deemed it proper to fix the matter for 14.06.2009. Though a suggestion has been given to PW37 during her cross examination which he has denied, however, it is not necessary that the time as sought by the accused should be allowed and it is for the Magistrate to allow a reasonable time keeping in view the mandate of law and the attending circumstances.
16.2 In Babubhai Udesinh Parmar (supra), the Supreme Court has laid down that sufficient time must be given to the accused to ponder over and decide whether he would be willing to make a confession or not.
16.3 In Shankaria v. State of Rajasthan (supra), it has been held that how much time for reflection should be allowed to an accused person before recording his confession is a question which depends on the circumstances of each case.
69 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 16.4 In Sarwan Singh (supra) it was observed that it would be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. And speaking generally accused person be given at least 24 hours to decide whether or not he should make a confession and where there are reason to suspect that the accused has been persuaded or coerced to make a confession a longer period may be given to him before his statement is recorded.
16.5 In Shankaria v. State of Rajasthan (supra), 38 to 40 hours of judicial custody and thereafter 15 minutes more and in Mohd. Ajmal Amir Kasab v. State of Maharashtra (supra), 72 hours time was held sufficient time given to the accused for reflection/thinking over.
16.6 In the present case the accused was produced before the court on 12.06.2009 and recording of his confession was fixed for 14.06.2009 and as such was given 48 hours time to decide whether or not he should make a confession. Not only that on 14.06.2009 also the accused was given sufficient time to think by leaving him in the chamber alone for more than an hour as reflected in the proceedings dated 14.06.2009Ex. PW37/D, and further he remained out of sight of any police official for more than three hours before recording his statement Ex. PW37/F. Nothing has been brought on record to show that he was persuaded or coerced to make a confession, so as afford him a longer period. And as such the accused was given sufficient time for reflection/think over his decision to make a confession. Reference with advantage can be had to the decisions in 70 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Babubhai Udesinh Parmar (supra) and Sarwan Singh (supra), Shankaria (supra) and Mohd. Ajmal Amir Kasab (supra).
17. The Ld. Counsel for the accused had submitted that the lawyer of the accused was not present when application Ex.PW37/B for recording of confession was moved before the MMs and the Magistrate did not make available any legal aid to the accused which should have been provided in view of the constitutional mandate and the judicial decisions. And not making any counsel available vitiates the recording of confession. And has relied on the decisions in Mohd. Hussain alias Julfikar Ali v. State (Govt. of NCT), Delhi 2012 Crl. L.J. 1069 (SC) and Mohd. Ajmal Amir Kasab v. State of Maharshtra (Supra).
17.1 The accused in answer to Q432 has stated that the date of 14.06.2009 for recording of his confession was given against his wishes and he sought 45 days time to consult his lawyer.
17.2 The proceedings dated 12.06.2009 Ex.PW37/C does not find recorded therein that the accused sought 45 days time to consult his lawyer. PW37 in her cross examination has denied the suggestion that the accused sought for grant of 45 days time so that he may consult his advocate.
71 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 17.3 Accused was in judicial custody from 12.06.2009. And if at all he was to consult a lawyer, that lawyer had to visit Tihar Jail. As per DW3 Shri S.G.K. Murthy meeting with lawyer can be held with permission of DG Prisons on Saturdays and Sundays. And if the accused intended to consult his lawyer, he could have very well consulted on Saturday and Sunday at Tihar Jail premises.
17.4 The proceedings dated 14.06.2009 Ex. PW37/D records that the accused asked as to whether it would be fine without his advocate or his presence and she responded saying that this is not the stage for requirement of any advocate and the only question is his voluntariness to make statement.
17.5 The Ld. Counsel for the accused was present when the accused was remanded to judicial custody on 12.06.2009 as recorded in the proceedings however, not present when application Ex. PW37/B was presented before PW37.
17.6 The decision in Mohd. Hussain alias Julfikar Ali v. State (Govt. of NCT) Delhi (supra) relied upon by the Ld. Counsel for the accused lays down that in a trial before the Court of Sessions if the accused is not represented by a pleader and has not sufficient means, the Court shall assign a pleader for his defence at the expense of the State. And the entitlement to free legal aid is not dependent upon on 72 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others the accused making an application to that effect, in fact, the court is obliged to inform the accused of his right to obtain free legal aid and provide him with the same.
And it has further been laid down that the trial of the accused in which he was not provided legal assistance cannot be said to be fair and unreasonable.
17.7 In Mohd. Ajmal Amir Kasab v. State of Maharashtra (Supra) the Supreme Court observing that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a Magistrate, held that it is the duty and obligation of the Magistrate before whom a person accused of a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and in case he has no means to engage a lawyer of his choice, that one would be provided to him at the expense of the State.
17.8 It has further been observed that the accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of section 164 Cr.P.C.; to represent him when the court examines the chargesheet submitted by the police and decides upon the future course of proceedings and at the stage of framing of charges, and beyond that for the trial.
73 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 17.9 It has been further laid down that the failure to provide a lawyer to the accused at the pretrial stage may not have the same consequences of vitiating the trial. And it would not vitiate trial unless it is shown that failure to provide him legal assistance at the pre trial stage had resulted in some material prejudice to the accused in the course of the trial.
17.10 It has also been laid down that any failure to provide legal aid to the accused at the beginning or before his confession is recorded under section 164 Cr.P.C. would render the trial illegal is stretching the point to unacceptable extremes.
17.11 In the present case, it stands established that the accused was visited by advocates during his police custody remand upto 12.06.2009, and was duly represented by a lawyer on 12.06.2009 who filed vakalatnama for the accused before the court of Ld. CMM, however, he was not present when the accused was produced before PW37. The nonpresence of lawyer who had filed vakalatnama for the accused, when the accused was produced before PW37, does not mean that the accused was not represented by a lawyer at all or that he did not have the means to engage a lawyer and the Magistrate PW37 was under a duty to provide him the legal aid at the expenses of the State. It is also quite relevant as it stands established that during the police custody remand, lawyers were visiting the accused.
74 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 17.12 The decision in Mohd. Hussain alias Julfikar Ali v. State (Govt. of NCT) Delhi (supra) relied upon by the Ld. Counsel for the accused is no help to the accused as it relate to the trial and in the present case, the accused has been represented by a lawyer of a standing, throughout the trial.
17.13 And in view of the decision in Mohd. Ajmal Amir Kasab (supra), though the accused was not represented by a lawyer and no lawyer at the State expenses was made available to him by the Ld. Magistrate PW37, when application for recording confession of the accused was considered or before recording of the confession, does not vitiate the confession recorded u/s 164 Cr.P.C.
18. As to recording of confession it has been laid down in Sarwan Singh v. The State of Punjab (supra), Shivappa v. State of Karnataka (supra), Rabindra Kumar Pal alias Dara Singh v. Republic of India (supra) that while recording confession the provision of Section 164 Cr.P.C. must be complied with not only in form but also in essence.
18.1 In the present case PW37 has deposed on 14.06.2009, the accused was produced before her at about 11.20 AM and she asked him as to whether he wishes/intends to make confessional statement before a Magistrate or not. It has so been 75 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others recorded in proceedings Ex.PW37/D as well. The accused in answer to Q435 in his statement u/s 313 Cr.P.C. stated it to be correct that he was so asked.
18.2 PW37 further deposed and the proceedings Ex.PW37/D also records that the accused responded saying "Yes, I want to make a statement". The accused in his statement in answer to Q436 admitted having said so.
18.3 As per Ex. PW37/D, the accused was offered the wash room facility to freshen up, which he refused to avail stating that he is comfortable and does not need to use the washroom.
18.4 The deposition of PW37 further records that she retired to her chamber and as per her instructions the accused was produced in her chamber where the IO PW43 was also called who identified the accused vide his statement Ex.PW37/E. The accused in his statement in answer to Q438 admitted that he was taken in the chamber of the Magistrate PW37 and the IO also followed, however, he does not know as to what proceedings were conducted by the Magistrate with the IO.
18.5 PW43 in his deposition dated 21.11.2012 stated that on 14.06.2009 he was called inside the chamber by the Ld. MM (PW37) where he identified the accused vide 76 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others statement Ex.PW37/E. And after identifying the accused he came out of the chamber. PW37 has also deposed that PW43 was then asked to leave the chamber. There is nothing on record to show that IO did anything else except the identification of the accused vide statement Ex.PW37/E. No question asked nor any suggestion given to PW43 or as PW37 as to anything else done by him (PW43) at that time. Nor there is anything on record to suggest that the accused and PW43 had any eyecontact with each other at that time.
18.6 The proceedings Ex.PW37/D further records that the accused was again asked whether he is willing/intends to make a confessional statement to which the accused nodded his head and said "Yes". The accused in his statement in answer to Q440 and Q441 stated it to be correct, however, stated that he was under the influence of IO. However, what was that influence has not been elaborated.
18.7 The proceedings dated 14.06.2009 Ex.PW37/F also records that the accused was told that he is not bound to make any confession and that he is absolutely free to refused to do so, if he wishes so; and that once he makes a confessional statement, same may be read against him that he is completely at his will and risk to make any confessional statement whatsoever if he voluntarily wishes so. The accused in his statement under section 313 Cr.P.C. in answer to Q442 and Q444 stated that it to be correct with the rider that he was under the influence of IO.
77 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 18.8 The proceedings Ex.PW37/F also records that the accused was asked as to whether he is understanding what she is telling him and again was asked whether he has understood what she has said or asked and on both the occasions the accused replied saying "Yes". In reply to Q443 and Q445 in his statement, he stated it to be correct but again with the rider of under influence of the IO.
18.9 It has also been recorded in the proceedings Ex.PW37/F that the accused was specifically asked whether he is feeling any pressure or influence from any person specifically any police official to which he replied saying "there is no influence". And in answer to Q446 and Q447 admitted having been so asked and answered, but stated that he said so as instructed by the IO.
18.10 The proceedings Ex.PW37/F states that the accused was asked whether he is feeling comfortable to which he replied saying "Yes, he is feeling comfortable", which also he stated to be correct in answer to Q448. The accused was thereafter left alone in the chamber as stated in PW37/F and admitted by the accused in answer to Q449.
18.11 The accused is stated to be again told that he is absolutely free not to make any confession and he is like a free bird before a Magistrate, out of any police influence, any local authority influence or any other influence whatsoever, in the proceedings 78 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Ex.PW37/F and the accused in answer to Q450 in his statement stated it to be correct.
18.12 It is further recorded in the proceedings Ex.PW37/F that the accused was again told that he can refuse to make confession and nothing shall be done without his open and conscious consent and that making a confession may be read against him at a later stage unless he is very sure of making a confession, he is free to refuse. The accused in his statement in answer to Q451 and Q452 stated it to be correct.
18.13 The proceedings Ex.PW37/F further records that PW37 told the accused that he is sitting before a Magistrate and he is beyond any influence whatsoever by anyone inclusive of the police officials which has also been admitted by the accused in answer to Q453 in his statement.
18.14 The accused is stated to have left alone in the chamber for quite some time. The proceedings Ex.PW37/F states that the PW37 asked the accused whether he is able to hear her voice and whether he could read whatsoever is being typed on the computer screen and nodded his head and said "Yes", which the accused in his statement in answer to Q455 and Q456 stated it to be correct, however, stated that he remained under the influence of the IO.
79 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 18.15 The accused was also asked whether he needs something to eat or drink and the accused asked for a glass of water saying "nothing, only water will do" and a glass of water was already lying before him on the table.
18.16 The accused is stated to have been again cautioned and warned that he is not bound to make any confession and he can refuse to do so and if he chooses to make a confession it would be read against him at a later stage, and he responded saying that he wishes to make a confessional statement and not feeling any pressure from any side, as recorded in Ex.PW37/F. The accused in answer to Q458 and Q459, stated it to be correct adding a rider that he responded as instructed by the IO.
18.17 PW37 has stated that she made inquiries to satisfy herself about the voluntariness of the accused. The proceedings Ex. PW37/F further records that the Ld. Magistrate PW37 has asked as many as 27 questions to adjudge his voluntariness and even after questioning he was again told that he is free to refuse to make a confession and unless he is conscious of everything, he is free to refuse to make any confession to which he submitted that he wishes to make a confession.
18.18 The accused in his statement u/s. 313 Cr. P.C. in answer to Q460 admitted having inquiries been made from him by PW37, however, expressed his ignorance about 80 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others making such inquiry.
18.19 PW37 has deposed that after satisfying herself, she recorded his (accused's) statement.
18.20 The proceedings Ex. PW37/F records the satisfaction recorded by the Ld. Magistrate PW37 as regards the voluntariness of the accused in making the confession in the following words:
By the question I have asked the accused Hopeson Ningshen and the responses which I have received from him, I opine that he is not stating anything under any fear, pressure, coercion or undue influence and that he is conscious of what he is doing or stating and that he is making the confession voluntarily out of his own free will and volition.
I further adjudge that he has understood that he is not bound to make a confession and that if he so makes it same may be used against him as an evidence. He also understands that he is making a confession before a Magistrate and that he is sitting in a Court. I further opine that he looks composed and confident. I also opine that he is able to speak his mind out and is grasping properly any question which have been posed 81 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others to him. He does not look puzzled or confused. He looks comfortable with himself and the environment around him.
Accordingly, I opine that he is very much willing to make a confession voluntarily and that I am unable to adjudge any sort of pressure or undue influence from any quarter on him specifically of the police custody or the police officials concerned. Now, he has been sitting inside the chamber for the past 3 hours away from the site of any police official whosoever.
18.21 In her crossexamination PW37 has denied the suggestion whatever incriminating facts accused stated before her was stated under the pressure, threat and tutoring of CBI. She also denied the suggestion that the accused did not make the statement voluntarily and stated that she herself assessed that voluntariness of the accused and then only recorded his statement Ex. PW37/F. 18.22 From the deposition of PW37 and the proceedings dated 12.06.2009 Ex.PW37/C and dated 14.06.2009 Ex.PW37/D and Ex.PW37/F and admissions of the accused in his statement u/s. 313 Cr. P.C. it stands proved that the confession Ex.PW37/F made by the accused was voluntary, all the legal procedure as stated in section 164 Cr. P.C. stand complied with and as such the first requirement as to the admissibility of 82 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others confession as laid down in various decisions stands fulfilled.
19. Coming to the second requirement of truthfulness of confession, usually some corroboration is required for the confessional statement before it can be said to be truthful and convicting the accused on such a statement.
19.1 The accused in his confessional statement Ex.PW37/F has boldly stated about his background, his organization and his nationality and gave that description which runs into 3 pages from page no.10 to page no.13 of Ex.PW37/F. 19.2 While describing his organization and nationality the accused stated that there has been a cease fire between Govt. of India and NSCN/GPRN [National Socialist Council of Nagalim (Nagalim means Nagaland)] and that cease fire has been since the year 1997.
19.3 PW19 Sh. Lanuyapang an official working in the Govt. of Nagaland has deposed that there is an agreement of cease fire between Government of India and NSCN (IM) which was executed in the year 1997. He further deposed that the ceasefire agreement has been extended from time to time and still in existence, the details of which are contained in the booklet Mark M 1. The testimony of PW19 remained unrebutted and 83 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others unchallenged 19.4 In the statement Ex. PW37/F, the accused has stated that NSCN/GPRN has an Army Wing called Naga Army, and he is serving as Lt. Colonel there. He has further stated that he was Commandant of Kiusumong Battalion under Naga Army, and his jurisdiction was the whole district of Ukhrul which is his own native district.
19.5 PW5 Ms. Marve Relang has deposed that the accused is a rank holder in NSCN (IM).
19.6 PW6 Shri Ningshen Khurye Wungshung the brother of the accused in his crossexamination by the Ld. Sr. PP has stated that the accused is a member of NSCN (IM). DW2 Ms. K. Joyrita wife of the accused has deposed that her husband i.e. the accused, is a Commander or NSCN (IM). Even in her crossexamination she has stated that at the time of her marriage she knew that the accused i.e. her husband is a member of NSCN (IM).
19.7 The accused in his statement u/s. 313 Cr. P.C. has in answer to Q8 admitted that he is a member of NSCN and in answer to Q11 admitted that he holds a rank in NSCN (IM) and further in answer to Q9 admitted that NSCN (IM) has its 84 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others headquarter in Dimapur, Nagaland.
19.8 And that being so this portion of his statement Ex. PW37/F stands fully corroborated by the depositions of PW5, PW6, PW19 and DW2 and his admission in statement u/s. 313 Cr. P.C. and as such the confession is truthful.
20. In his confession Ex.PW37/F, the accused has stated that he gave verbal order to his subordinate Major Abo Sibo to arrest Dr. Th. Kishan Singh, SDO of Kasom Khullen, Sub Division of Ukhrul, District Manipur and his accomplice for the purposes of questioning his corruption cases. He also stated that previously he was warned about his corruption cases as he forced the village Headmen (many villagers) to put signature on blank cheques.
20.1 The confession Ex. PW37/F of the accused further states that NREGS funds given to every villager. This money the SDO kept in his hand and was not disseminating the funds to the villagers which was given to them as per NREGS scheme. The money and the material components used to be received only to village Headmen/Secretary (in one village, one Headman and one Secretary). The SDO Dr. Th. Kishan Singh used to hand over 50% of the fund amount to the village Headman and rest 50% he used to keep in his own hand without disbursing the said amount to the villagers 85 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others and when he was questioned by village Headman, his reply was that this 50% has been deducted to hand it over to militants/UGs (under grounds). This was the case they wanted to question him and he was previously warned about it also by his subordinates with his consent and order.
20.2 The confession Ex. PW37/F further reads that at that time when warning was given to him (Dr. Kishan Singh), he (Dr. Kishan Singh) had assured them that he shall not indulge in such corruption activity and shall not repeat it again. He did not rectify his mistake despite warning and kept on indulging in the same activities and did not comply with the warning issued earlier. For this he was arrested alongwith his accomplice on 13.02.2009 from Ukhrul.
20.3 PW3 Shri Kachamthai Faiga Gangmei, SubDeputy Collector, Myang, Imphal has deposed that the Dy. Commissioner Shri Pankaj Kumar Pal (PW12), had called a meeting in his office of all SDOs on 13.02.2009.
20.4 PW12 Shri Pankaj Kumar Pal, Dy. Commissioner, Ukhrul has deposed that he had called a meeting of all the SDOs in his office at Ukhrul on 13.02.2009 and the meeting was attended by SDO, Kasom Khullen Dr. Th. Kishan Singh amongst other SDOs. In his crossexamination, PW12 stated that the meeting was scheduled and convened in 86 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others DC office in Ukhrul on 13.02.2009.
20.5 PW16 Shri Rangnamei Rang Peter, SDO, Phungyar has deposed that Dr. Th. Kishan Singh was his batch mate and was SDO, Kasom Khullen and has further deposed that on 12.02.2009 he met PW12 who told him that he has called a meeting of all SDOs on 13.02.2009 for which he (PW16) was exempted.
20.6 PW17 Shri Sudhan has deposed that when he joined as SDO, PW12 was the DC, Ukhrul who had called a meeting of all the SDOs in his office on 13.02.2009. And in his crossexamination denied that PW12 never called any such meeting of SDOs.
20.7 PW21 Sh. Kapangkhui Jajo, Peon on the office of SDO, Kasom Kullen has deposed that Dr. Th. Kishan Singh was the SDO Kasom Khullen and on 12.02.2009 he told them that they have to visit Ikhrul for an official meeting on 13.02.2009 and asked them to report early on 13.02.2009. He further deposed that on 13.02.2009 at 7.30 am he reported at the residence cum office of the SDO at Imphal where the driver A.Rajen Sarma, Ram Sing Siro, Ramthing Singhai (PW22) and Token Singh also reported. And they all went to Ukhrul by gypsy of SDO at about 8 a.m. 20.8 PW22 Ramsing Siro has deposed that Dr.Th. Kishan Singh joined as SDO 87 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others in June/July 2008, he was working in SDO office Kasom Khullen. He further deposed that in the evening of 12.02.2009 SDO informed about meeting in DC office at Ukhrul on 13.02.2009 as instructed they assembled at the residence of SDO at about 7 AM and he, Ramthing Singhai, A. Rajen Sarma (Driver), Kapangkhui Jajo (PW21), Y. Token Sing and SDO went to Ukhrul by official Gypsy of SDO and reached Ukhrul at about 10/10.30 AM.
20.9 PW7 Shri Thingnam Surendra Singh, father of Th. Kishan Singh and PW8 Smt. Romita Devi, wife of Shri Th. Kishan Singh have deposed that Dr. Th. Kishan Singh was the SDO, Kasom Khullen and he went to Ukhrul to attend the meeting and left for Ukhrul on 13.02.2009 at about 8.00 AM alongwith 5 supporting staff member. PW10 Ms. Ronibala w/o driver Shri Aribam Rajen Sarma has deposed that her husband was on duty on 13.02.2009 and had told her that a meeting has been called at DC Office, Ukhrul and he had to go with Th. Kishan Singh to Ukhrul. PW11 Shri S. Bhubaneshor Singh, AccountantcumCashier in the Office of SDO, Kasom Khullen has deposed that on 12.02.2009 he had met Dr. Th. Kishan Singh who informed him about his plan for 13th and 14th February 2009 and SDO Th. Kishan Singh alongwith 5 staff members proceeded for Ukhrul at about 7.30 AM on 13.02.2009.
20.10 PW21 further deposed that they reached Ukhrul at about 10.30 AM. He also stated that he alongwith driver A. Rajen Sarma and Y.Token Sing and the SDO went to the residence of DC Ukhrul and the SDO went to the residence of DC Ukhrul. PW12 in his 88 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others cross examination had stated that SDO Dr. Th. Kishan Singh met him at his residence at about 11.15 AM before the meeting, and thereafter in the meeting at about 12.00 noon 20.11 PW17 has also deposed that he attended the meeting in DC office on 13.02.2009 and Dr. Th. Kishan Singh was also present in the meeting. PW3 has also deposed that Dr. Th. Kishan Singh who was the SDO, Kasom Khullen and his batch mate was there in the meeting and had met him in his chamber before and after the meeting.
20.12 The depositions of all these witnesses corroborate each other in all aspects and establish beyond doubt that PW12 had called a meeting of SDOs on 13.02.2009 in his office at Ukhrul and to attend the same SDO Kasom Khullen Dr. Th. Kishan Singh alongwith five of his staff members who include his driver, had come to attend that meeting on 13.02.2009 to Ukhrul and attended that meeting and nothing has been brought on record in the cross examination of these witnesses suggesting that the SDO Dr. Th. Kishan Singh had not come to Ukhrul to attend the meeting on 13.02.2009 or that he has not attended the meeting.
20.13 The accused in his confessional statement Ex. PW37/F has stated that he (referring to Dr. Th. Kishan Singh) was in a meeting with District Commissioner at Ukhrul Headquarters. And this portion of confessional statements is fully corroborated by the 89 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others deposition of all the aforesaid prosecution witnesses, and as such the statement Ex. PW37/F is truthful.
21. PW12 has also explained the purpose of calling the meeting and has deposed that the meeting was called to brief the SDOs as he was proceeding on leave w.e.f. 14.02.2009 and the other purpose of the meeting was to coordinate the visits of two ministers of Manipur Government, namely Shri Ranjeet Singh who was scheduled to visit Kasom Khullen subdivision of 14.02.2009, and Shri Allaudin Khan who was likely to visit the subdivision on 16.02.2009 in relation to implementation of NAREGA Scheme. PW16 Shri Rangnamei Rang Peter, SDO Phungyar who has deposed that on 12.02.2009 he met PW12 at Ukhrul DC Office in the morning where he (DC) briefed him about the visit of Shri Allaudin Khan, Rural Development Minister who shall be monitoring the work carried out under the scheme of NAREGA. The deposition of PW12 as regards visit of the Minister Shri Allaudin Khan has been corroborated by the deposition of PW16 Shri Rangnamei Rang Peter, SDO, Phungyar.
21.1 PW8 Smt. Romita Devi has deposed that before leaving the house on 13.02.2009, her husband told her that firstly he will go to Ukhrul and after attending the meeting he will go to Kasom Khullen where a meeting of works Minister Shri K. Ranjeet is scheduled for 14.02.2009 which will be attended by him and he will come back by the evening of 14.02.2009.
90 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 21.2 PW7 Shri Surendra Singh father of Th. Kishan Singh deposed that on 13.02.2009 Th. Kishan Singh went to meet DC Ukhrul accompanied by A. Rajen Sharma, Y. Token Singh, Ram Singh Siro, Ramthing Shinglai and Kapangkhui Jajo. And on 14.02.2009 Works Minister Shri K. Ranjeet Singh was likely to come in subdivision Kasom Khullen and therefore Th. Kishan Singh was on duty being incharge of the subdivision and they were expecting his return at home in Imphal by the evening of 14.02.2009.
21.3 PW8 further deposed that she was expecting call from her husband but she did not receive any call on 13.02.2009 or 14.02.2009, and he could not be contacted on his telephone. She also stated that she waited for his return till the night of 14.02.2009 but he did not return. PW7 also deposed that Th. Kishan Singh did not return on 14.02.2009.
21.4 PW10 Ms. Ronibala wife of the driver A. Rajen Sarma has deposed that her husband was on duty on 13.02.2009 who had told her that a meeting has been called at DC Office Ukhrul and he has to go with Th. Kishan Singh to Ukhrul and from Ukhrul he would go to Kasom Khullen alongwith Th. Kishan Singh where a meeting of Works Minister Shri K. Ranjeet Singh has been fixed for 14.02.2009. She has further deposed that her husband had told her that he would came back to Imphal after the meeting of the minister. And on 15.02.2009 at about 9.00 PM she was informed by one Shelina, working in the office of SDO Kasom Khullen that her husband and SDO Th. Kishan Singh had not 91 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others reached in the meeting of Works Minister. She further deposed that on 16.02.2009 at about 7/8 PM she was informed that her husband has been captured by NSCN(IM) people on their way to Kasom Khullen from Ukhrul. In her crossexamination she denied the suggestion that she has deposed under the influence and pressure of CBI.
21.5 PW12 has further deposed that he instructed Dr. Th. Kishan Singh, SDO, Kasom Khullen to make necessary arrangements for the visit of Shri Ranjeet Singh who was likely to visit his subdivision on 14.02.2009. The testimony of PW12 as regards the visit of minister Shri Ranjit Singh has been corroborated by PW31 Shri Jojo Robertson, Chairman of Kasom Khullen SubDivision Development Association (KKSDDA) who has deposed that they had invited Works Minister Shri K. Ranjit Singh to Kasom Khullen and Shri K. Ranjit Singh was to hold a meeting at Kasom Khullen on 14.02.2009. And he alongwith the committee members and one village headman had met the SDO Dr. Kishan Singh on 12.02.2009 at Imphal to seek financial assistance for arrangements for the proposed visit of the Works Minister wherein they were told that he (SDO) does not have the funds and would request DC Ukhrul to provide funds and also told that there is a meeting with DC Ukhrul on 13.02.2009.
21.6 The deposition of PW31 stands corroborated by PW12 who has further deposed that Dr. Th. Kishan Singh requested for sanction of funds for arrangements of the visit of the minister and he sanctioned Rs.30,000/ to meet out the expenses vide sanction 92 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others order Ex.PW12/A and a cheque Ex.PW12/C for Rs.30,000/ and was issued in accordance with the sanction order. PW14 Ms. Marygrace Luikham, a cashier in DC office Ukhrul, Manipur has deposed having prepared the cheque Ex.PW12/C which was handed over to SDO, Th. Kishan Singh, in her presence.
21.7 The deposition of PW12, PW16 and PW31 corroborate each other as regards visits of the two ministers and the testimony of PW12, PW14 and PW31 corroborate each other as regards non availability of funds with SDO Dr. Th. Kishan Singh on 12.02.2009 and making funds available to him on 13.02.2009 for making necessary arrangements for the visit of the minister Shri Ranjit Singh to Kasom Khullen on 14.02.2009.
22. The confession Ex.PW37/F of the accused further states that on 13.02.2009 he gave verbal order to his subordinate official Major Abo Sibo to arrest Dr. Th. Kishan Singh and his accomplice, and also explained reasons for so doing stating that he gave order of arrest for the purpose of questioning his corruption cases as he was previously warned about his corruption cases. The confession Ex.PW37/F further states that he (Dr. Th. Kishan Sigh) forced the village headman (many villagers) to put signature on blank cheques. It further states that the SDO Dr. Th. Kishan Singh used to hand over 50% of the fund amount to the village headmen and the rest of 50% he used to keep in his own hand without disbursing the said amount to the villagers on the pretext of handing it 93 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others over to militants/UGs.
22.1 PW31 in his crossexamination has stated that he villagers made complaint to their organization KKSDDA that SDO Kasom Khullen and his staff used to keep 50% of the payment and were asking the village headman to sign the blank cheques. PW35 Shri Shinglai Peter, village headman of village Kangkum has deposed that his village falls within the jurisdiction of subdivision Kasom Khullen and Th. Kishan Singh was the SDO of Kasom Khullen and the scheme of NREGs was implemented in the area. He has further deposed that all the headmen of the villages are the members of an organization named Tangkhul Naga Wungnao Long and he being headman of his village, he was also a member of the same. He also testified that Shri Thonpam Jajo, Secretary of his village had lodged a complaint Ex.PW34/C to Tangkhul Naga Wunglao Long and has identified the signatures of various village headmen on the same. The complaint Ex. PW34/C is against the SDO Th. Kishan Singh as regards the funds under NREGA scheme.
22.2 PW34 Insp. P. Shadang who had also participated in the investigation and carried out the instructions of PW43 DSP Ganesh Verma, has deposed that during investigation he seized letter dated 18.09.2008 Ex.PW34/C and dated 12.09.2008 Ex.PW34/D vide zeizure memo dated 27.07.2009 Ex.PW34/B (D46). There is no cross examination of PW34 on the seizure of the letters Ex.PW34/C and Ex.PW34/D nor there is any challenge to the authenticity of these letters Ex.PW34/C and Ex.PW34/D. The 94 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others testimony of PW35 also remained unrebutted in this regard. The testimony of PW31, PW34 and PW35 corroborate what the accused has stated in his confession Ex.PW37/F as regards non payment of full amount to the villagers, retaining 50% with him and taking signature of village headmen on blank cheques, by SDO Th. Kishan Singh and lodging of complaint against SDO Th. Kishan Singh to the Tangkhul Naga Wunglao Long.
22.3 The accused in his confession statement Ex.PW37/F has explained the reasons for giving order of arest of SDO Kishan Singh and his accomplice stating that he gave order of arrest for the purpose of questioning his corruption cases. He also added that previously he (SDO Th. Kishan Singh) was warned about his corruption cases by his subordinates with his consent and order, however, he (SDO Th. Kishan Singh) did not rectify his mistake despite warning and assurance given by him and indulged in the same activities. And, therefore, he was arrested alongwith his accomplice on 13.02.2009 from Ukhrul, on the way back to Kasom Khullen, 12 kms from Ukhrul Headquarters.
22.4 The deposition of PW31 and PW35 corroborate what the accused in his confessional statement Ex. PW37/F has stated as regards retention of 50% of wages under NREGA by the SDO Th. Kishan Singh and taking signatures of village headman on blank cheques.
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23. As per the prosecution case, SDO Th. Kishan Singh and his five subordinates were abducted in a black colour Bolero Jeep.
23.1 Prosecution has examined PW26 Sh. Puizatleng Kasar Mahai, a driver by profession who has deposed he was working as a driver on a Bolero jeep bearing Nagaland number owned by Shri Masopam, which he used to take out from his (owner's) house to Hungpum Junction (a taxi stand), Ukhrul Junction taxi stand when at about 1.00 PM two persons came on a motorcycle and asked about the driver of the Bolero jeep, one of them sat on the front seat of his Bolero jeep and asked to drive the vehicle. And on his asking again and again as to where we have to go, shown him a firearm by putting of his (that person) clothes, and that person forced him (PW26) to go with him, and asked him to take the taxi towards DC office Ukhrul. PW26 in his deposition has given the description of that person and has further deposed that on reaching the DC office he turned the vehicle and parked it where three other persons who were already present near the gate of DC office, came inside the Bolero jeep while the person who brought his Bolero Jeep to DC office gate left the jeep and moved towards Hungpum Junction, and on asking they informed him that they have to follow a car which will come from inside the DC office. He further testified that a car (Gypsy) came from the DC office and he could see from the side mirror of his car that the gypsy was carrying red light and he recognized it to be a Government official vehicle and though he refused to follow the gypsy, he was asked not to speak and follow the gypsy. The person who was sitting on the front seat is stated to be 96 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others giving the instructions to him and when they reached near KG School Ukhrul, he was instructed to overtake the gypsy, and accordingly he overtook the gypsy and when they reached Naga Gate, he was instructed to stop the vehicle in just middle of the road and not to switch off.
23.2 In his crossexamination PW26 confirmed that he parked his Bolero jeep near DC office after having been picked at about 12.30 pm on 13.02.2009. And also confirmed that he resisted following the gypsy but the three persons forced him to follow the gypsy and therefore, he followed the gypsy.
23.3 PW21 and PW22 who were with the SDO Th. Kishan Singh in the gypsy both have deposed that at about 1.30/2.00 pm they all left the DC office Ukhrul and proceeded for Kasom Khullen in the gypsy of SDO Th. Kishan Singh which was driven by Shri A. Rajen Sarma. While PW21 has given the details as to who amongst them was sitting where in the gypsy, PW22 stated that he was sitting on the back seat and expressed his inability to tell as to who was sitting where in the gypsy.
23.4 PW21 has further deposed that within about 10 minutes they reached the Naga Gate, Ukhrul and when they just crossed the Naga Gate, they saw a black colour Bolero jeep parked in the middle of the road and since the driver of gypsy could not have 97 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others proceeded further he stopped the gypsy. The testomony of PW22 Shri Ramsing Siro is exactly on the same lines.
23.5 PW26 has further testified that the official gypsy which was being followed by him also reached there and stopped near his Bolero jeep because due to parking of his vehicle in the middle of the road there was not enough space to pass through his vehicle. The gypsy is stated to be first vehicle reaching that point after parking of his vehicle there. In his crossexamination PW26 stated that it took about 5 minutes in reaching Naga Gate from DC office and also stated that he did not notice any vehicle of security personnels (policy/army) while following the gypsy of SDO from DC office to Naga Gate and also did not notice any check post between DC office and Naga Gate. In his crossexamination PW22 also stated that he did not see any check post of local police or the Army on the way between DC office to Naga Gate. In his crossexamination PW26 also stated that no other vehicle passed his Bolero jeep from either side while Bolero jeep was parked at Naga Gate for about 5 minutes.
23.6 There is no crossexamination of either PW21 or PW22 as to the gypsy in which they were travelling reaching Naga Gate and stopping of the same on account of parking of Bolero jeep of PW26 in the middle of the road and their deposition remained unchallenged. The testimonies of PW21, PW22 and PW26 are quite consistent and fully corroborate each other on this aspect.
98 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 23.7 PW21 has further testified that when the gypsy stopped one person standing on the road came near to the gypsy and asked to hand over their (the occupants of gypsy) mobile phones to him. And again asked hurriedly to hand over mobile phones to him and SDO Th. Kishan Singh and PW22 Ramsing Siro handed over their mobile phones to him. That person is stated to have been carrying a shot gun with him which he showed to them.
23.8 PW22 has also deposed that one person came near gypsy and directed to hand over the mobile phones, and that person was having a small gun.
PW22 has further deposed that he and SDO Th. Kishan Singh had mobile phones and they handed over the mobile phones that person as per his direction. They could not resist handing over their mobile phones to that person since that person was having gun. PW21 also deposed that SDO Th. Kishan Singh and Ramsing Siro (PW22) handed over the mobile phones to him.
23.9 The testimony of PW21 and PW22 both remained unrebutted and unchallenged in this regard as not even a single question has been asked nor any suggestion given to PW21 during his crossexamination.
99 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 23.10 PW8 Smt. Romita Devi, wife of Dr. Th. Kishan Singh has deposed that her husband alongwith his five supporting members went to attend the meeting at Ukhrul on 13.02.2009 at about 8.00 a.m. and had his mobile phone of Nokia make bearing no. 9856210376 which he took away with him while leaving the house on 13.02.2009 and had identified the mobile phone Ex.PW8/A to be the same as was kept by her husband Th. Kishan Singh when he left the house on 13.02.2009. PW9 Th. Roshan Singh, the brother of Th. Kishan Singh has deposed that his brother Th. Kishan Singh was using mobile phone no. 9856210376 and he handset of Nokia make which he was using, was used by him (PW9) for some time and he also identified the handset Ex.PW8/A to be the same as was being used by his brother.
23.11 The testimony of PW8 and PW9 in this regard is unrebutted as no question has been asked nor any suggestion given to them during their crossexamination on the subject of availability of mobile phone with Dr. Th. Kishan Singh.
23.12 PW26 has deposed that one of the persons sitting at the back seat came down of his vehicle. PW26 has also deposed that perhaps two or three mobile phones of the persons of gypsy were taken by one of the persons who was earlier sitting in his Bolero jeep.
100 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 23.13 The deposition of PW26 in this regard also go unrebutted as there is no crossexamination of the witness on this point.
23.14 PW21 has further deposed that mobile phone of PW22 which was snatched by the abductors at the Naga Gate was not returned to him. PW22 also deposed that he neither asked for the return of his mobile phone which was taken by one of the abductors at Naga Gate nor it was returned to him by any of the abductors.
23.15 The testimonies of all these prosecution witnesses establish beyond doubt that SDO Th. Kishan Singh and PW22 Rasing Siro were having the mobile phones, one of which is Ex.PW8/A, which were taken from them by the person who was carrying a small gun which he had showed to them, and not returned to PW22.
23.16 PW12 has also deposed that he has sanctioned Rs.30,000/ vide sanction order Ex. PW12/A and issued a cheque Ex. PWE12/C for Rs.30,000/ for making arrangements for the visit of the minister. PW14 has deposed that she has prepared the cheque Ex. PW12/C for Rs.30,000/ and was signed by PW12 and handed over to Dr. Th. Kishan Singh in her presence.
23.17 PW21 has deposed that they went to United Bank of India, Ukhrul and 101 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others SDO went inside the bank and met the manager. After sometime SDO stated to have called PW21 and introduced him to the bank manager and requested him to hand over Rs.30,000/ to him. PW21also deposed that the cheque for Rs.30,000/ was handed over by SDO to the bank manager. PW15 Shri T. Ngarnmi, clerkcumcashier in United Bank of India, Ukhrul has deposed that he had paid Rs.30,000/against the cheque Ex. PW12/C. And as deposed by PW21 after collecting the cash Rs.30,000/ from the bank, he handed it over to Y. Token Singh and reached DC office. And when SDO asked for the money, Y. Token handed it over to the SDO.
23.18 There is no cross examination of PW12, PW14, PW21 or PW15 on the assertion of these facts and thus it stands proved that Dr. Th. Kishan Singh was sanctioned Rs.30,000/for making necessary arrangements for minister visit and a cheque for Rs.30,000/ was issued by PW12 which SDO Th. Kishan Singh got encashed and that amount of Rs.30,000/ was available with him when he left DC office, Ukhrul for Kasom Khullen.
23.19 No amount has been recovered from the person of Dr.Th. Kishan Singh when his dead body was found alongwith other two at Senapati.
24. The accused has been charged for offence u/s 392 IPC. Section 392 IPC 102 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others provides punishment for robbery, and robbery has been defined u/s 390 IPC as kind of theft or extortion.
25. Extortion has been defined u/s 383 IPC as:
Whoever intentionally puts any person in fear of anyinjury to that person, or to anyother, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
25.1 Section 390 provides when the extortion becomes robbery. It reads:
In all robbery there is either theft or extortion. When theft is robbery - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained bythe theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commit the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
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26. In the present case PW21 and PW22 whose testimony remained unrebutted and unchallenged, have categorically deposed that when they just crossed Naga Gate, their gypsy was stopped as a black colour Bolero jeep was parked in the middle of the road and one person standing on the road, who was having a small gun, came near the gypsy and asked to hand over the mobile phones. Two mobile phones, one of SDO and the other PW2 were handed over to him. It has been stated that handing over of mobile phones could not be resisted as that person was having gun, which he had showed to them.
26.1 Possessing a gun and showing the same to the occupants of gypsy and asking them to hand over their mobile phones to him, itself suggests that the gun was shown to them for putting them in fear of instant death or hurt in the event of their refusal to hand over the mobile phones.
26.2 The mobile phones are movable properties and were actually taken out of the possession of the SDO Th. Kishan Singh and PW22.
26.3 There is nothing in the examination or crossexamination of either PW21 or PW22 suggesting that the SDO Th. Kishan Singh and PW22 handed over their mobile phones to that person of their free will.
104 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 26.4 The Ld. Sr. PP has argued that SDO Th. Kishan Singh with five of his staff members was abducted within a very short time when he left Ukhrul, on 13.02.2009and remained in the captivity of the accused and his associates till his dead body was found, and he had no occasion to spend anything from that Rs.30,000/ and since the abductors have paid taxi fares and also incurred expenses on eatables/food items etc., the amount of Rs.30,000/has been taken by abductors and utilized for the same.
26.5 On the other hand the Ld. Counsel for the accused has submitted that there is no evidence of taking Rs.30,000/ by anyone much less the accused Hopeson and there is no evidence to show that the expenses incurred by abductors was from that Rs.30,000/ no liability for the same can be fastened on the accused.
26.6 There is no crossexamination of any of the witnesses as regards incurring of certain expenditures by the abductors which established incurring of expenditure by the abductors, however, neither PW21 nor PW22 have deposed about taking of Rs..30,000/ from the SDO by any of the abductors nor they have stated that the SDO Th. Kishan Singh at any point of time had told them about the abductor having taken Rs.30,000/ from him. Simply because the abductors had incurred some expenditure, it cannot be said, that the same was done by them after taking Rs.30,000/ from Dr. Th. Kishan Singh or that the same was incurred out of that Rs.30,000/ only and as such the submission of the Ld. Counsel for the accused that no liability can be fastened on the accused has substance/ 105 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others merits and thus it cannot be said that the accused has taken Rs.30,000/from the SDO Th. Kishan Singh.
Accordingly the offence u/s. 392 IPC stands proved, as regards the taking of mobile phones.
27. PW21 has further deposed that the four persons sitting at the back seats of gypsy including him were directed to sit in black Bolero jeep and the person who took mobile phones from SDO and Ramsing Siro directed the driver A. Rajen Sarma to leave the driving seat of the gypsy and to sit at the back seat of the gypsy. And as per the command he himself, PW22, Ramthing, and Y. Token Singh shifted to the Bolero jeep.
27.1 PW22 has deposed that the person having gun directed him, Ramsing Singlai, Kapangkhui Jajo PW21 and Y. Token Singh to sit at the back seat of black colour Bolero jeep and A. Rajen Sarma, the driver of the gypsy was asked to leave the driving seat and sit at the back seat of the same gypsy. He further deposed that he (PW22), Ramsingh Singlai, Kapangkhui Jajo and Y. Token Singh shifted and sat at the back seat of black colour Bolero jeep. And the person who was having the gun took over the driving seat of the gypsy of SDO. PW21 also deposed that there were total six persons in Bolero jeep and four persons in the gypsy and the entire operation at Naga Gate took approximately 5 minutes. PW22 gave the approximate time of remaining at Naga Gate to be 1520 minutes.
106 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 27.2 The testimony of PW21 remained absolutely unchallenged and unrebutted as no question asked or no suggestion given on this point during his crossexamination. The testimony of PW22 also remained virtually unchallenged and unrebutted on the point as during crossexamination he is not asked any question on the point.
27.3 PW22 has deposed that five persons came to his Bolero jeep and sat inside and out of these five, four persons were from the gypsy and one person was out of the three who was earlier sitting in his Bolero jeep. And the person who was earlier sitting on the front seat of his Bolero jeep took over the driving seat of official gypsy.
27.4 The testimony of PW26 also remained unchallenged and unrebutted on the point as there is no crossexamination on the point. The testimony of PW26 corroborates the deposition of PW21 and PW22, and the deposition of PW21 and PW22 are quite consistent.
27.5 The accused in his confessional statement Ex.PW37/F has stated that it was reported that after conclusion of the meeting while he (referring to SDO Th. Kishan Singh) was returning back to his posting place at Kasom Khullen Headquarters, he (again referring to SDO) was arrested while on the way, 12 kms away from Ukhrul headquarters. And he (reference to himself) was reported that the place of arrest was Naga Gate.
107 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 27.6 As per the testimony of PW21, PW22 and PW26, the gypsy had stopped at the Naga Gate. In his crossexamination PW26 has stated the distance between DC office and the Naga Gate to be around one and a half to two kms and that it took about 5 minutes to reach Naga Gate from DC office.
27.7 The confession Ex.PW37/F of the accused has been fully corroborated by the testimony of prosecution witnesses and reflects that the accused was in full knowledge of the things and was being reported every development in matter and was supervising the operation.
27.8 PW21 has further deposed that the gypsy took a U turn and the black Bolero jeep followed the gypsy and both the vehicles started towards Ukhrul. He also deposed that by taking Jesami road, the Gypsy and Bolero reached Langdang village and it took about 30 minutes to reach village Langdang from Naga Gate.
27.9 PW26 also deposed that the gypsy was ahead of his Bolero jeep and he was following the gypsy.
27.10 PW22 has deposed that after starting from Naga Gate ultimately the gypsy and bolero jeep were stopped at Langdang village.
108 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 27.11 In his crossexamination, PW21 stated that from Naga Gate to village Langdang he did not notice any check post and the Bolero jeep and gypsy were not stopped by anyone at any check post for checking. PW22 in his crossexamination stated when they were being taken by abductors from Naga Gate to Langdang village through Ukhrul, he saw an escort vehicle on the way to Ukhrul.
27.12 PW26 in his examination in chief stated that he was instructed by one of the persons (out of three who were earlier sitting in his jeep) to turn the Bolero jeep and go towards Langdang village and in his crossexamination confirmed having been taken to Langdang village stating that from the Naga Gate his Bolero jeep was taken to Langdang village and it took about half an hour to reach village Langdang from Naga Gate the distance being 1315 kms. PW26 also stated in his crossexamination that between Naga Gate and Ukhrul junction on the way to Langdang village he noticed the car of DC Ukhrul and his escort vehicle coming from Langdang village side.
27.13 What has been stated by PW22 in his examination in chief has been confirmed by PW26 in his crossexamination and no inconsistency or contradiction has been brought on record. The testimonies of PW21, PW22 and PW26 fully corroborate each other as regards moving of the gypsy and the Bolero with all its occupants to Langdang village from Naga Gate.
109 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others
28. The accused in his statement Ex. PW37/F has stated that he (reference to SDO) was taken away to a nearby village called Langdang village. He also stated that alongwith Dr. Kishan Singh there were Mr. Token (handpicked cashier of Dr. Kisan that means he was not using the actual official who was appointed cashier but was using by his own and discretion some other person who is Mr. Token) and driver Rajen and other three Tangkhuls (Tribals) whose names he does not remember.
28.1 What has been stated by the accused in his cofession Ex.PW37/F as regards the number of persons abducted with names of some of them and the presence of three Tangkhuls (Tribals) in those persons also stands fully corroborated by the testimonies of prosecution witnesses.
28.2 The accused in his statement Ex.PW37/F has given a unique description of one of the persons namely Y. Token Singh, as a handpicked cashier of Dr. Kishan, which none of the witnesses has said nor anything asked from PW21 and PW22 during their crossexamination. This reflects the extent knowledge the accused had about the functioning of SDO Dr. Kishan Singh and his office as it was PW11 who was the designated cashier in the office of SDO Kasom Khullen as deposed by him.
28.3 The testimonies of these prosecution witnesses which are quite cogent and 110 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others consistent and corroborate each other in all material particulars and also the confession Ex.PW37/F of the accused establish beyond doubt that the subordinate staff of Dr. Th. Kishan Singh were forcibly removed to black Bolero jeep driven by PW26 and arranged by the associates of the accused and the gypsy, with SDO Th. Kishan Singh with his driver A. Rajen Sarma who was removed from the driving seat of gypsy, was driven by one of the associates of the accused, were taken to Langdang village.
29. Abduction has been defined under section 362 IPC as:
Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
29.1 As discussed above that the testimonies of the prosecution witnesses PW21, PW22 and PW26 establish beyond doubt the subordinate staff members were forcibly removed to black Bolero jeep, the driver of gypsy of SDO was removed from the driving seat and they all were taken to Langdang village.
29.2 As per the facts proved on record, SDO Th. Kishan Singh and his subordinate staff were to go to Kasom Khullen and were on the way to Kasom Khullen on 13.02.2009 as the Works Minister Shri K. Ranjit Singh was to visit Kasom Khullen on 14.02.2009 and necessary arrangements were to be made for the visit at Kasom Khullen.
Nothing has been brought on record to show that they had the plan to go to Langdang 111 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others village or had any reason to visit Langdang village or that they had gone to Langdang village with their own free will. And the necessary inference is that they all were compelled to go from Naga Gate to Langdang village instead of Kasom Khullen as the person having firearm was there who on the driving seat of gypsy had taken U turn from Naga Gate towards Ukhrul and proceeded to Langdang village followed by the black Bolero jeep in which also the associate of that person was sitting.
29.3 The accused in his confession Ex.PW37/F has stated that he had given the order to arrest SDO Th. Kishan Singh and his accomplice and has also given the reason for the same. The accused is not an official with the Government of Manipur and does not enjoy and exercise any State power to arrest any persons and as such does not have any legally vested power to arrest anyone.
29.4 In arrest if, by the official exercising legal state power, though compelling the the person to go from that place is there, but the same is protected by the state power and that person is not said to have been abducted. However, in present case, accused is not vested with any legal state power and as such his act is not protected and his act can only be said to amount to abduction within the meaning of section 362 IPC. Accordingly, it is held that SDO Th. Kishan Singh and 5 of his subordinates staff members were abducted from Naga Gate, Ukhrul by the accused through his accomplices.
112 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.5 PW21 and PW22 both were made to sit in Balero jeep at Naga Gate from where they all were taken to Langdang village. PW21 has deposed that from Naga Gate to Langdang village they could not understand as to what was happening and they all were so scared that during the journey they did not speak anything and did not ask anything from the abductors as to who they were and why they were taking them. PW22 has also deposed that in the journey from Naga Gate to Langdang village neither of them tried to talk to any of the NSCN person present in the Bolero Jeep.
29.6 PW26 has deposed that in Langdang village all the persons came down from the vehicles. And the person driving the gypsy was talking on his mobile in Tangkhul language and was telling somebody that they have reached Langdang village. In his cross examination PW26 stated on reaching village Langdang the persons sitting in Bolero Jeep and in the gypsy remained seated in the vehicles for a while and then came down and went inside a house except him. PW26 in his cross examination has confirmed what he has stated in his examination in chief and further is corroborated by PW21 who has deposed that the person who had driven the gypsy to village Langdang was seen from a distance while talking on mobile phone after reaching village Langdang and by PW22 as well who has deposed that on 13.02.2009 in Langdang village in front of house of headman, he saw the abductor who was driving the gypsy of SDO was talking with someone on mobile phone, but he could not hear the conversation.
113 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.7 PW21 has further testified that they are (named them all) were taken to the house of headman of the village Langdang. PW22 also deposed that in Langdang village they were taken to the house of exheadman of the village. In his crossexamination PW22 stated that he did not see any villager around the house of the headman and also stated that they had crossed 23 houses to reach the house of headman and on the way he had seen some villagers.
29.8 PW38 A.S. Wungmaso has deposed that he remained headman of village Langdang from 1995 to 2007 and NSCN (IM) had a camp in that village who left the village in 2004. He further deposed that on 13.02.2009 when he reached his house at about 2.30/3.00 p.m. he saw a gypsy parked in the courtyard of the neighbouring house and he noticed 78 unknown persons outside his house. PW38 has turned hostile, however, his testimony corroborates PW21, PW22 and PW26 who have stated about they being taken to Langdang village.
29.9 PW22 in his crossexamination corroborates PW38 saying that the wife of headman was present in the house and in reply to the court question stated that from the behaviour of abductors and the wife of headman, he could assess that abductors were very close to the family of headman. PW38 had remained village headman from 1995 to 2007 and NSCN (IM) had a camp at village Langdang till 2004, it is quite not possible that, when the wife of PW38 and the abductors were behaving as if very close to each other, 114 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW38 did not know anyone of the abductors who were very much present in/outside his house and as such the testimony of PW38 who otherwise has turned hostile, cannot be believed.
29.10 PW21 has further deposed that after reaching village Langdang, the abductors removed the number plate and red light from the gypsy of SDO Th. Kishan Singh. This fact has also been deposed byPW22 who has stated that the number plate and red light of the gypsy was removed by these persons. PW26 has also deposed that name plate of SDO, number plate and red light of gypsy were removed by one of the abductors.
29.11 PW34 Ins. P. Shadang who was associated in the investigation has deposed that PW43 instructed him for participations in investigation and as per instructions of PW43 he visited Langdang village in order to trace and seize the number plate and redbeacon removed from the gypsy. He further deposed that search was carried out in and around the house of headman including his garden and surroundings, however the redbeacon light, original number plate and name plate could not be placed and he recorded the proceedings vide memo Ex. PW15/A (D50).
29.12 PW15 has also deposed that on 24.07.2009, he accompanied the CBI team 115 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others to trace the number plate of the vehicle used by deceased SDO on 13.02.2009 and he signed the spot verification memo Ex. PW15/A prepared by PW34 Insp. P. Shadang though he expressed inability to tell as to whether the number plate was recovered or not.
29.13 PW26 has deposed that the person who appeared to be SDO asked the person driving gypsy at Langdang village within his (PW26) hearing as to why they have been brought to the Langdang village and they have to tell the reason and that person replied Sir Yurhor is coming who will reply his (SDOs) question. And after about half an hour the person called Sir Yurhor came on foot.
29.14 PW21 has also deposed that at Langdang village apart from the group of persons who abducted them from Naga Gate, one another person came and asked them who was the SDO at which PW22 Ramsing Siro pointed towards Th. Kishan Singh and introduced him as SDO. PW22 also deposed that after some time one of the leader came at the house of village headman and asked in Tangkhul who is the SDO on which he replied and introduced Th. Kishan Singh as SDO.
29.15 PW21 and PW22 both further deposed that the SDO was asked to come out of the house of the headman and he took SDO Th. Kishan Singh alongwith him outside the house of the headman and after about 510 minutes SDO Th. Kishan Singh came back 116 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others alone. There is no crossexamination of either PW21 or PW22 on the point nor there is anything on record suggesting that no one joined the abductors at Langdang village who had taken the SDO Th. Kishan Singh out of the house for some time.
29.16 PW22 further deposed that he asked the SDO as to what they have asked him on which SDO informed that they have asked for an amount of Rs. 20 lacs from him (SDO) and when asked about the abductors, he mentioned them NSCN people.
29.17 PW22 in his crossexamination stated that SDO Th. Kishan Singh told him about the demand of Rs. 20 lacs by the abductors at the house of headman before going to the jungle. And in an answer to a court question stated that he cannot say any other reason behind their abduction except that the SDO himself told him that the abductors were demanding Rs. 20 lacs. He denied the suggestion that the SDO had never told him about the demand of Rs. 20 lacs by the abductors and had stated so at the instance of CBI. No question has been asked nor any suggestion given to PW43, the IO in this regard. And as such nothing has been brought on record suggesting as to what PW22 has stated was not the correct statement and he has so stated at the instance of CBI.
29.18 In his examination in chief PW22 stated that while they were in jungle on 13.02.2009 he also told Kapangkhui Jajo (PW21) and Ramthing Shinglai that the 117 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others abductors were demanding Rs. 20 lacs from the SDO.
29.19 PW21 has also deposed that PW22 had told him (PW21) that the abductors had asked an amount of Rs. 20 lacs from him (SDO). And his crossexamination denied the suggestion that he was never told by PW22 that SDO had told him (PW22) that abductors had demanded an amount of Rs.20 lacs.
29.20 PW21 and PW22 also deposed that the abductors asked Th. Kishan Singh to talk to his wife on phone to arrange Rs. 20 lacs demanded by them, on which he told him not to force him to talk to his wife as his wife and father are heart patients and his wife on hearing of abduction may faint and neighbours may also assemble there. PW22 also deposed that the SDO also told them that news of abduction in Imphal may cause major problem of protest, Dharnas and rallies which will be a major problem.
29.21 PW26 in his examination in chief has identified the person called by the name Sir Yurhor, to be the person who for the first forced him to take his vehicle from taxi stand Ukhrul to DC office Gate, Ukhrul. And further stated that this person Sir Yurhour addressed one person as Ashang and the person addressed as Ashang was the person who was sitting at the front seat of his Bolero jeep from DC office gate to Naga Gate and was the person driving the gypsy from Naga Gate to Langdang village.
118 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.22 The testimony of prosecution witnesses establishes beyond doubt that the abductors, who were named Yurhour and Ashang demanded a sum of Rs. 20 lacs from the SDO Th. Kishan Singh and asked him to make a call to his wife.
29.23 PW21 has further deposed that they all six were taken to the jungle before sunset, before it became dark by two abductors who were having something like shotgun / pistol. PW22 also deposed that they all six including SDO went to jungle alongwith two them (referring to abductors) and one another person joined them in the jungle later on.
29.24 PW21 and PW22 further testified that SDO asked the abductors to let him to talk to their leader. And PW21 testified that the abductors chained Y Token Singh and A Rajen Sarma and when they tried to chain the SDO PW22 asked them not to chain the SDO as he was their officer and requested that instead of SDO he alongwith others may be chained. PW22 corroborated PW21 saying that when the abductors tried to chain the SDO Th. Kishan Singh, he asked not to chain him being their officer and instead he or any other of them may be chained. And, on his request, they did not chain the SDO and also removed the chains of Y Token Singh and A Rajen Sarma.
29.25 As per PW22 in the evening at about 7.00 p.m on 13.02.2009 they were brought to village Langdang in the same house of exheadman where they were served 119 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others food and in the night taken to women society building in the village where they spent the night. PW21 also stated on the same lines that they all six were taken to Langdang village and at the house of headman of Langdang village they took their dinner and taken to women's hostel to sleep. In his crossexamination PW22 stated the women society building to be a single storey building.
29.26 PW22 has further been crossexamined on the women society building, however, nothing could not be brught on record to point out any contradiction as there is no crossexamination of PW21 on these lines and PW21 and PW22 are the only witnesses to this fact.
29.27 PW21 has further deposed that after reaching Langdang village (from the jungle) he did not see the black Balero Jeep which took them from Naga Gate. PW26 deposed that he stayed in Langdang village for about one or one and a half hour and then came to Ukhrul in his Bolero Jeep and the person called Yurhor also travelled with him, and he dropped him at Council's gate where the person addressed as Ashang at Langdang village was already standing.
29.28 He further stated that when Yurhor got down from the jeep, Ashang came inside the Bolero jeep who told him that he has to purchase fruits and other eatables from 120 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others the market and taken to Langdang village. From the testimony of PW26, what has been stated by PW21 as to nonavailability of Bolero jeep at Langdang village at that point of time stand fully corroborated.
29.29 PW26 has also testified that on the way to Ukhrul, he stopped the jeep at Har farm as asked by Yurhor where Yurhor stepped out of the jeep and made a telephone call and while he was standing there he noticed SDO's gypsy being driven by the person Ashang crossed his Bolero jeep. In his crossexamination he stated that when he left Langdang village he noticed SDO's gypsy being driven behind him which was without name plate and number plate. He also confirmed in his crossexamination that the SDO's gypsy overtook his Bolero jeep when he had stopped at Har farm.
29.30 And after purchasing rice, potatoes, tomatoes, fish etc. Ashang alongwith one another person whom he had called, travelled to Langdang village on the same day.
29.31 PW26 further deposed that after dropping the eatables/articles at Langdang village he returned back to Ukhrul on the same day and the person Ashang also travelled with him to Ukhrul whom he dropped at Council's gate, Ukhrul. Ashang stated to have instructed him to be available at 3 p.m the next day as they have to again purchase food and other articles and take the same to Langdang village.
121 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.32 PW26 has not informed the police about the incident after returning to Ukhrul. He has stated that Yurhor had threatened him if he (PW26) disclosed anything he will be shot dead and because of the fear he did not report the matter to the police.
29.33 PW26 further deposed that on 14.02.2009 he did not reach the Council's gate at 3 p.m as instructed by Ashang, however, Ashang caught him while he was driving his Bolero jeep at some other place and asked him to drop the foods at Langdang village. In his crossexamination PW26 stated that on 14.02.2009 he started his duty at 5.30 a.m and Ashang caught him at 3.30 p.m near Council's gate.
29.34 The testimony of PW26 further goes to state that one another driver Wungmi Raleng (PW23) known to him was also called with his vehicle and Yurhor was also sitting in the vehicle of Wungmi Raleng. In his crossexamination he stated that when he saw the Bolero jeep of Wungmi, he was not carrying any passenger in the jeep. The prosecution has examined Sh. Wungmi Raleng as PW23 who has deposed that on 14.02.2009 he was driving silver colour Bolero jeep bearing registration no. MN01/K9412 of which his father is a registered owner. He further deposed PW26 Sh. Mahai is a taxi driver and known to him who requested him to take the Bolero jeep to Langdang village. And he took the Bolero jeep to Langdang village.
122 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.35 In his crossexamination PW26 stated that both the vehicles were taken to Langdang village. He also stated in his examinationinchief that Ashang was sitting in his Bolero jeep while Yurhor was in the vehicle of PW23. In his crossexamination PW26 stated that from Council's gate Ukhrul to Langdang village apart from driver, one person travelled in each of the Bolero jeep. PW23 also deposed that one person wearing spectacles was sitting on the front seat of his Bolero, who was not known to him nor did he spoke to that person. The depositions of PW23 and PW26 corroborate each other in all material particulars and there is nothing in their lengthy crossexamination suggesting otherwise than what they have stated.
29.36 PW21 further deposed that on 14.02.2009 after they all six had taken their meal at the house of headman and were taken to jungle again. PW22 also deposed that on 14.02.2009 they were served morning meal at the house of village headman and were again taken to the jungle to the same place where they were taken on 13.02.2009. PW21 and PW22 further deposed that SDO requested the abductors to call their leader. There is nothing in the crossexamination of PW21 and PW22 suggesting contrary or inconsistent to what they have deposed in their examinationinchief.
29.37 PW21 deposed that they were kept in the jungle the whole day and in the evening the person who was driving the gypsy from Naga gate to Langdang village came and directed him, Ramsing Siro (PW22) and Ramthing Shinglai to come with him. He also 123 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others stated that they were again taken to Langdang village and the SDO, Y.Token Sing and A.Rajen Sarma were kept in jungle. This was stated to be the last meeting and after leaving the jungle he did not see any of them alive.
29.38 PW22 also deposed on the same lines and stated that in the evening of 14.02.2009 the person who was driving the gypsy of SDO from Naga Gate to Langdang village came in the jungle and had some conversation with the three abductors and then took him, Ramthing Shinglai and Kapangkhui Jajo (PW21) to the house of exheadman in village Langdang.
29.39 He has also deposed that one of the abductors spoken to them in Tangkhul and it was clear to them that they three belong to Naga Community and the other three SDO Kishan Singh, Y.Token Sing and A.Rajen Sarma do not belong to Naga Community.
29.40 PW21 further deposed that they were asked to tell their names, father's name, villages, addresses, etc. and were asked to sign papers, and they accordingly told their particulars and signed the papers as asked by the abductors. PW22 also deposed that they were asked to sign on papers.
29.41 PW21 and PW22 both went on stating that they were taken in Bolero jeep 124 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others and left the Langdang village. While PW21 stated it to be the same black colour Bolero jeep which took them from Naga Gate to Langdang village, PW22 stated it not to be the same Bolero jeep, however, both of them expressed their inability to tell whether the driver was the same or not. And further deposed that two abductors also came in the jeep, and they were dropped at bus stand Khuman Lampak, Imphal.
29.42 PW21 also deposed about the threat extended by the abductors not to say anything to anyone and not to go anywhere from their houses. PW22 also deposed that they were warned not to tell anybody about their abduction otherwise they will shoot us and also the other three captives.
29.43 PW23 deposed that from Langdang village he drove his Bolero jeep to Ukhrul and four other persons also travelled in his jeep, one of whom was the person who had travelled from Ukhrul to Langdang in his jeep and he dropped three person at bus stand Khuman Lampak, Imphal, who paid him vehicle charges Rs.2100/. PW26 also deposed that the three Tangkhul persons were instructed to sit in the vehicle of PW23 and said vehicle left from Langdang village and he noticed Yurhor also sitting in that vehicle.
29.44 There is no crossexamination of PW21, PW22, PW23 or PW26 on this aspect. And the deposition of these witnesses establish that the three Tangkhuls PW21, 125 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW22 and Ramthing Shinglai were released by the abductors on 14.02.2009 and were brought to Imphal in the Balero jeep of PW23 who dropped them at bus stand Khuman Lampak at Imphal, while the other three remained in the custody of the abductors.
29.45 The accused in his confessional statement Ex.PW37/F has stated that after identifications three Tangkhuls were released the very next day i.e. 14.02.2009 from Langdang village by his Major Abo Sibo with his orders. The accused has also given the reason for their release stating that they were not related with this case. As such he refers to the so called corruption case of SDO Th. Kishan Singh.
29.46 What the accused has stated in his confession statement Ex.PW37/F is fully corroborated by the deposition of prosecution witnesses. And the reason for the release of three was only known to the accused and none else and as such the confession Ex. PW37/F is truthful to that extent.
29.47 PW8 further testified her husband did not come back by 15.02.2009 morning nor she received any call from him nor telephone call from her side got connected and in the afternoon of 15.02.2009 she contacted her friend Dr. Joymati who after some time informed her that her husband had not attended the meeting at Kasom Khullen with Works Minister Sh. K. Ranjeet and then she spoke to Sh. S. Bhubneshwar (PW11) an 126 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others accountant in the office of SDO and asked him to come her house.
29.48 PW7 has deposed that on 15.02.2009 at about 4.00 p.m. he was informed by his daughter in law - wife of his younger son Th. Ved Prakash that Th. Kishan Singh has not returned. And on receipt of this information he contacted officer incharge PS Imphal (West) and on reaching home PW8 informed him that she has received information that Th. Kishan Singh was not present in the welcome ceremony of the Works Minister at Kasom Khullen on 14.02.2009. PW7 has also deposed ;that they met PW11 on the same day.
29.49 PW8 further testified that PW11 informed her that the staff members who had gone to Kasom Khullen have not come back, however, he was not knowing whether her husband was present in the meeting at Kasom Khullen. PW7 also deposed that PW11 had no information about his son other persons though PW10, wife of driver had also contacted him (PW11).
29.50 PW11 had met PW7 and PW8 in the evening of 15.02.2009 as deposed by them. PW11 in his examination in chief has deposed that on 15.02.2009 at about 78 AM he received a telephonic call from PW22 Ram Sing Siro, who told him that when they were going to Kasom Khullen after the meeting with DC Ukhrul on 13.02.2009 they were 127 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others captured by people of NSCN (IM) near Welcome Gate at Ukhrul District which is at a distance of one kilometer from Distt. Headquarter Ukhrul and as they were captured on the way they could not reach in the meeting of Works Minister at Kasom Khullen. PW11 further deposed that PW22 also informed him that he (PW22) alongwith PW21 and Ramthing Shinglai have been released on 14.02.2009 and he did not disclose this information to anyone as PW22 had told him about the threat and as his (PW11) family members may be in danger.
29.51 PW11 had met PW7 and PW8 on 16.02.2009 however, he did not tell them about the capturing of the SDO by NSCN (IM).
29.52 PW12 has deposed that while he was in Delhi on 15.02.2009, PW17 Sh. Sudhan R. called him on phone and informed about the nonreaching of SDO Dr. Th. Kishan Singh in the meeting on 14.02.2009 and annoyance of Works Minister Sh. Ranjeet Singh. PW17 in his cross examination stated that wither in the evening of 14.02.2009 or on 15.02.2009 he came to know from another SDO Mr. Peter PW16 that Dr. Th. Kishan Singh did not reach in the meeting of Minster at Kasom Khullen and the minister was annoyed with him, and his absence was taken only as a negligence on his part. He further stated in his crossexamination that he informed the DC telephonically that SDO Dr. Th. Kishan Singh remained absent during the meeting of minister on 14.02.2009. PW16 PW16 Shri Rangnamei Rang Peter SDO Phuyungyar deposed that on 16.02.2009 in the morning he 128 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others came to know that Dr. Kishan Singh was missing through police officer in charge, Phungyar. In his crossexamination PW16 stated that he came to know about missing of Dr. Th. Kishan Singh on 16.02.2009 at about 9.30 AM.
29.53 PW8 further deposed that on 16.02.2009 PA to SDO Chingnai and PW16 Rangnamei Rang Peter SDO Phungyar informed her that her husband was captured by the activists of NSCN (IM) and that her father in law and other family members were contacting various persons to find out the whereabouts of her husband. PW7 has also deposed about the places and the persons he contact to know the whereabouts of his son.
29.54 PW7 and PW8 both have further deposed that on 17.02.2009 they met the Chief Minister and the Chief Secretary to inform them about the kidnapping of Dr. Th. Kishan Singh and submitted a memorandum of the Chief Secretary and requested them to trace out Dr. T. Kishan Singh.
29.55 PW7 and PW8 have not been cross examined as regards the facts asseted by them during their examination in chief.
29.56 PW17 has further stated in his cross examination that he got mobile 129 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others number of Dr. Kishan Singh but his number could not be contacted despite efforts. HE also stated that the police was informed on 15.02.2009 itself to locate the whereabouts of Dr. Th. Kishan Singh but formally all efforts started from 16.02.2009. And lodged the complaint in writing on 16.02.2009 and denied the suggestion that they came to know of the killing of Dr. Th. Kishan Singh on 16.02.2009 itself.
29.57 The testimony of PW7,. PW8, PW11, PW12, PW16 and PW17 establish beyond doubt that Dr.Th. Kishan Singh came to Ukhrul on 13.02.2009 to attend meeting in DC office and was to go to Kasom Khullen to attend the meeting with Works Minister Shri Ranjeet Singh on 14.02.2009 who did not reach Kasom Khullen and did not attend the meeting with the Works Minister and went missing for which formal complaint Ex. PW40/A was lodged with the police at Ukhrul on 16.02.2009 and they came to know that he (Dr. Th. Kishan Singh) has been captured by NSCN (IM) people and all efforts were made to know the whereabouts of missing persons.
29.58 For the incidents/actions after the release of PW21, PW22 and Ramthing Shinglai, the only witness is PW26 namely, Puizatleng Kasar Mahai who has deposed that thereafter (referring to the actions after PW23 left Langdang village) he was asked to drive to Ukhrul. Three meities, Ashang and two other associates of Ashang travelled in his Bolero jeep on 14.02.2009 from Langdang village to Ukhrul. He further deposed that they were nearing Ukhrul, Ashang talked to somebody on his mobile phone and informed him 130 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others that they are reaching Ukhrul. And on reaching Ukhrul Ashang instructed him to take the vehicle to Seikhor village which he resisted saying that he has to take the permission of his owner at which Ashang in threatening tone said that he cannot ask his owner and has to go as instructed.
29.59 PW26 further deposed that since he was forced, he drove his Bolero jeep to Seikhor village and stopped near a play ground as per the instructions of Ashang. The deposition of PW26 as regards moving of the three captives to Seikhor village not challenged during crossexamination. The accused in his confessional statement Ex. PW37/F has stated that on 14.02.2009 Dr. Kisan and his two staff i.e. Mr. Token and driver Rajen Sarma were shifted from Langdang village to Seikhor village and gave reason for doing so as the disturbance by some Indian Security Forces. He also stated that all this was done by his subordinate official Major Abo Sibo and his party/group. And Sargent Major Themshang and Corporal Jonney were part of Major Abo Sibo's group.
29.60 What the accused has stated in his confessional statement Ex. PW37/F as regards shifting of the three captives from Langdang village to Seikhor village stands fully corroborated by the testimony of PW26, and again the reason for their shifting was known to the accused only.
131 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.61 PW26 has further deposed as to what happened on reaching Seikhor village. He has deposed that Ashang stepped out from the Bolero while other five remained sitting therein. And on the asking of SDO he went to a nearby store and purchased 'Paan and cigarettes' and while he was coming back towards his vehicle Ashang met him and asked him to sit on the driving seat of Bolero jeep and when he reached near his Bolero jeep he found none of the five persons in the jeep.
29.62 He further deposed that he occupied the driver seat of his jeep and in the meantime one of the associates of Ashang who was there in his Bolero jeep reached there and he handed over the paan and cigarettes to that person and then he came back to Ukhrul alongwith Ashang who got down at Council's Gate, Ukhrul and paid taxi fare to him.
29.63 As per PW26 Ashang instructed him to come next day again to which he expressed his inability stating that next day is a Sunday and the owner will not allow him to take the vehicle and moreover the vehicle had broken down. He also stated that Ashang threatened him of being shot dead if he disclosed anything either to the police or to the owner or anybody else, and accordingly he did not disclose anything to anybody nor he went to Seikhor village on 15.02.2009 (Sunday).
29.64 This portion of the deposition of PW26 also remained unchallenged during 132 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others his lengthy crossexamination and nothing has come on record suggesting anything contrary or inconsistent to what PW26 has deposed.
29.65 The accused in his confessional statement Ex. PW37/F stated that they (referring to his subordinates) kept Dr. Kisan, Mr. Token and driver Rajen for three days in Seikhor village i.e. 13th and 14th at Langdang village and shifted on 14th evening to Seikhor village and kept there till 16th February, 2009. He further stated that during 13th to 16th February, 2009 when questioned about misappropriation of public funds then Dr. Kisan confessed that 10 to 20 Lakhs was the misappropriated fund amount of NREGS Scheme collected by him and kept by him and the he said he was handed over that fund amount to UGs (Under Grounds) but actually he had not handed over the whole amount to UGs and that he had kept some of the amount with himself/used some of the amount by himself.
29.66 He further stated as to who the UGs are and named MNRF (Manipur Naga Revolutionary Front) and UNPC (United Naga Peoples Council), the two which he remembered, and apart from these two many others whose names he was not remembering. He also expressed his intentions behind all this operations of abducting SDO Th. Kishan Singh as to make recovery from him (Th. Kishan Singh) of that misappropriated fund and as to what he has done with that misappropriated fund what amount exactly he has handed over to UGs and what amount he has kept with himself 133 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others and where is the total amount as the public money must go to the public and not to UGs or anyone else.
29.67 The confessional statement Ex. PW37/F further states that he (the accused) told Major Abo Sibo and his party to contact the family members of Dr. Kisan through his own mobile but the number he gave as his wife's number was not the correct number and that number was not working as he actually gave his own mobile number to his boys inclusive of Major Abo Sibo so he (SDO) cheated and acted smart on them. Again he (SDO) pretended to be sincere and asked Major Abo Sibo and other of his party/group members to release him (SDO) so that he (SDO)can get the misappropriated fund amount which he (SDO) did not keep in his own hand but he (SDO) had kept within Bank so he (SDO) submitted that he needed to sign some cheques to draw the money from the Bank. That was a story he (SDO) made in an attempt to escape from their hands. He (SDO) said that Mr. Token and driver Rajen can be kept in the custody of Major Abo Sibo and his group while he (SDO) can be released and he (SDO) can go to get the money. He (SDO) said that he (SDO) would come back with the money and that after he (SDO) comes with the money all should be released as per his request made to Major Abo Sibo and his group.
29.68 As already held that the accused through his associates abducted the SDO Dr.Th. Kishan Singh and five of his subordinates on 13.02.2009.
134 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 29.69 The testimony of PW21, PW22, PW26 and the confessional statement Ex. PW37/F of the accused establishes beyond doubt that the SDO Dr. Th. Kishan Singh and his five associates were kept in detention after their abduction on 13.02.2009 firstly at Langdang village upto 14.02.2009 when three of them including PW21 and PW22 were released and the remaining three were further kept in detention from 14.02.2009 onwards at Seikhor village.
29.70 The purpose of that abduction has been deposed by PW21 and PW22 as the demand of Rs. 20 Lacs from the SDO and as also stated by the accused in his confessional statement Ex. PW37/F to be the recovery of amount of Rs. 10 to 20 lacs which the SDO had misappropriated out of the NREG funds and has not paid to the villagers despite earlier warnings to him and his assurances to rectify the mistake.
30. Section 364A IPC defines kidnapping for ransom. It reads :
Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person in order to compel the Government or [any foreign State or international intergovernmental organization or nay other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.] 135 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 30.1 From the testimony of PW21 and PW22 which corroborate the confessional statement Ex. PW37/F in all its material particulars making it truthful, it stands proved that the purpose of abduction and keeping in detention the SDO and his other two staff members, was to compel the wife or family members of the SDO to pay a ransom of Rs. 20 lacs.
30.2 PW21 has also deposed that the abductors asked the SDO to talk to his wife on mobile phone and SDO asked them not to force him to talk to his wife on mobile as his wife and father were heart patients and may faint on knowing as to what has happened.
30.3 PW22 has deposed that one of the abductors asked SDO Th. Kishan Singh to talk to his wife on phone to arrange Rs. 20 lacs demanded by them and further deposed that SDO Kishan Singh did not contact his wife.
30.4 The accused in his confessional statement Ex. PW37/F has also stated that his intention was to make recovery from him of the misappropriated funds, he asked Major Abo Sibo and his party to contact the family members of Dr. Kishan Singh from his own mobile but the number he gave as his wife's number was not the correct number and that number was not working as actually he has given his own mobile number to his boys and 136 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others cheated and acted smart on them.
30.5 The testimony of PW21, PW22 and the confessional statement Ex. PW37/F of the accused reflects that the wife or any other family member of SDO Th. Kishan Singh could not be contacted and the demand to pay Rs. 20 lacs could not be conveyed to her/them.
30.6 In Malashi v. State of Karnataka (supra) relied upon by the Ld. Sr. PP it has been held that to attract the provisions of Section 364A what is required to be proved is:
1. that the accused kidnapped or abducted the person;
2. kept him under detention after such kidnapping and abduction; and
3. that the kidnapping or abduction was for ransom.
30.7 It has further been held that there can be no definite manner in which demand is to be made and a straight jacket formula cannot be laid down as to how the demand for payments has to be made to a person who ultimately pays.
30.8 This decision also lays down that after making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person does not take away the offence out of the preview of section 364 A and in such 137 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others cases it has to be seen as to what was the object of kidnapping or abduction.
30.9 In the present case from the deposition of PW21, PW22, PW26 and the confessional statement Ex. PW37/F it stands proved that :
1. the accused persons alongwith his associates abducted Dr. Th. Kishan Singh and his five subordinate staff members on 13.02.2009 three of whom were released on 14.02.2009.
2. kept all the six under detention till 14.02.2009 and thereafter three till 16.02.2009
3. the abduction was for ransom of Rs. 20 lacs from the SDO/his family members.
And that demand was raised directly on the SDO and could not be conveyed to his wife/family members.
30.10 And in view of the law laid down in Malashi v. State of Karnataka (supra) this inability to convey the demand to the wife/family member of SDO Th. Kishan Singh does not make any difference and the offence u/s. 364A IPC stands proved against the accused.
31. PW26 has further deposed that on 16.02.2009 he repaired his Bolero jeep and he was again caught by Ashang at about 4.00 PM near Council's Gate Ukhrul and instructed him to go to Seikhor village, which he resisted, however, Ashang insisted and threatened him and was about to hit him.
138 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.1 He further deposed on 16.02.2009, he again visited Seikhor village and parked his Bolero jeep in front of a house and went inside the house where he found the SDO and two other meities having their food. Ashang and his two associates and he himself stated to have had food there.
31.2 In his crossexamination PW26 stated, reiterated and confirmed that he met Ashang at about 4.00 p.m. on 16.02.2009 at Council Gate. He also stated in cross examination that they reached at Seikhor at around 5.30/6.00 p.m. and remained there for about one hour.
31.3 The deposition of PW26 is quite consistent on the point and there is nothing on record to disbelieve his testimony.
31.4 PW26 next deposed that thereafter they all sat in the Bolero Jeep. While Ashang stated to be sitting on the front seat, his two associates sat on the last back seats and the the three Meities sat on the middle seat and started moving towards Ukhrul.
31.5 As per PW26 at Tuinmen Junction, one of the associates of Ashang stepped down and Ashang made a telephone call and addressing someone as 'Sir' and 139 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others then asked to go towards Tuinem village side. On reaching Tuinem village Ashang stated to have again contacted someone on his mobile phone addressing him 'Sir', and when asked by SDO Ashang stated that they are going to be dropped at Senapati.
31.6 In his crossexamination PW26 stated that it took about 10 minutes to reach Tueinmen junction and stayed there for about half an hour.
31.7 PW26 stated that he resisted going to Senapati when Ashang threatened him of giving beatings and forced him to take his vehicle to Senapati.
31.8 PW26 has further deposed that neither he nor Ashang was knowing the route to Senapati and Ahang was asking the passers by about the road to Senapati and they reached Senapati around 12 P.M. or 12.30 A.M. in the night. He also stated that on the way to Senapati Ashang was continuously asking time from his associate and he (the associate) told the time to be 12 or 12.30 when they reached market place of Senapati. In his crossexamination PW26 stated they reached Senapati around midnight time, may be around 12/12.30 AM. Again PW26 in his crossexamination confirmed what he has stated in his examination in chief.
31.9 The accused in his confessional statement Ex. PW37/F has stated that 140 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Major Abo Sibo reported to him on 16.02.2009 at around 11.00 or 12 noon about the factum of mobile number and the cheating of Dr. Kisan and he then gave verbal order on phone to Major Abo Sibo that some whipping and beating is required to be given to all three of them to extract the correct information. And the three captivity started fighting and hitting back while they were being whipped and beaten up, and because of severe beatings given in a fit of anger by Major Abo Sibo, Sargeant Major Thamshang and Corporal Johny to Dr. Kishan, Mr. Token and driver Rajen, all three died as was reported to him by Major Abo Sibo on 16.02.2009 at around 56 PM.
31.10 As per PW26 they had reached Senapati only around midnight on 16.02.2009 and at that time all three captives were alive. And when he started from Senapati to Ukhrul, there were only two abductors who had travelled with him, meaning thereby that the three abducted persons were left at Senapati at the dead end of night.
31.11 PW29 Ms. Hatlam who is a resident of village Kuki District Senapati, Manipur, as per the prosecution case was the first person to see the three dead bodies at the river bank of Taphou Kuki river, has deposed that her family owns a Shaktiman Truck used for loading sand and stones and on 17.02.2009 at about 5.00 am she had gone to river Taphou Kuki to load sand in the Shaktiman Truck driven by her son Ngampan she saw three dead bodies at the river bank. And on seeing the dead bodies she immediately went to the house of village headman and informed him about the dead bodies.
141 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.12 PW27 Sh. Lenkhomang Chongloi who as person the prosecution case happened to be headman of village Taphou Kuki, has deposed that he is the headman of the village since 1991 and on 17.02.2009 at about 5.30 p.m. while he was present at his house PW29 a resident of same village, came to his house and informed about the three dead bodies lying at Taphou Kuki river, who in turn informed the Secretary Sh. Lampao Chongoi and went to PS Senapati with him and informed the Police and reached the spot with the police and the three dead bodies were recovered.
31.13 In her crossexamination PW29 stated that it was not that she visited the river side for the first time on 17.02.2009 rather she used to go to river for loading sand in the truck. She also stated that she saw the three dead bodies while sitting in the truck and that distance as observed by the court to be 1012 ft. She denied the suggestion that she did not go to river side on 17.02.2009 morning and that the police had told her about the three dead bodies. She also denied that the date 17.02.2009 and time 5.00 a.m. had been tutored to her by the police.
31.14 In his crossexamination PW27 stated that they reached the spot with police officials Y. Ashok Kumar SDPO, Inspector P.S. Daiho and SubInspector Shammu Singh alongwith some constables, between 6.30 to 7.00 a.m. He further stated after information the police took half an hour to start from the P.S. and it would have taken 15/20 minutes from Police Station to the spot.
142 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.15 PW4 SI Shammu Singh of PS Senapati has been examined by the prosecution who has deposed that on 17.02.2009 at about 6.00 a.m. some villagers informed the officer incharge Shri P.S. Daiho of P.S. Senapati regarding three dead bodies lying on the western side of bridge along NH39 near the river bank Taphou Kuki. And after registering of case, investigation was endorsed to him and he accompanied by Shri Y. Ashok Kumar SDPO, officer incharge and ASI D Beri visited the spot after travelling for about four and a half kms., where three dead bodies were found lying. The hands of the bodies stated to have been tied from the back by wires.
31.16 In his crossexamination PW4 stated that the villagers of Kuki Taphou had informed about the dead bodies. The FIR was registered before they left for the spot. He further stated in his crossexamination that the investigation was assigned to him at about 6.00 A.M. and they reached the spot within 15/20 minutes, however stated that the police party was not accompanied by any member of the public.
31.17 The deposition of PW29 stand corroborated by the deposition of PW4 as regards the villagers informing the police and police reaching the spot and finding three dead bodies at the river bank.
31.18 PW4 further deposed that he prepared the inquest memos Ex. PW4/A, Ex, 143 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW4/B and Ex. PW4/C at the spot. PW29 also stated that the police recovered the dead bodies and carried out the proceedings of panchnama etc. and identified his signatures on three pages of inquest memo Ex. PW4/B (infact these are not the three pages of one inquest memo rather all the three inquest memos Ex. PW4/A, Ex. PW4/B and Ex. PW4/C) and in his crossexamination denied that he signed the memos Ex. PW4/B in the P.S. 31.19 PW4 further deposed that the dead bodies were sealed and first brought to PS Senapati and then to RIMS Hospital, Imphal and made requests for conducting their postmortem vide requests and challans Ex. PW4/D to Ex. PW4/J. 31.20 PW29 deposed that the dead bodies were taken by the police and his crossexamination stated that the dead bodies were taken away by the police at about 10.00 A.M. and he remained at the spot for three hours. PW4 in his crossexamination also stated that he remained at the spot upto about 10.00 A.M. and reached PS Senapati at about 10.30 A.M. and from Senapati to Imphal at about 11.30 A.M. and handed over the dead bodies to the hospital before noon.
31.21 PW2 Dr. Kh. Pardip Kumar Singh of RIMS hospital, Imphal who had conducted postmortem of the three dead bodies has deposed that on 17.02.2009 at 2.30 p.m. he conducted the postmortem examination of the dead body of Dr. Th. Kishan Singh vide his report Ex. PW2/A and deposed about the injuries on his person as :
144 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Postmortem staining present on the back and fixed, rigor mortis developed all over the body, dried blood stains on the back and neck, mixed with dirt stains, head deformed and brain matter coming out.
Ligature marks present on both wrists. Lacerated wound on frontal region over an area of 13cm X 10cm, red irregular margins, cavity deep situated just above eyebrow. Lacerated wound on lateral angle of right eye, 3.5 cm X 2.5cm, red irregular margin, bone deep. Lacerated wound on left upper lip, 1cm left to midline, 2cm x 1cm, muscle deep. Abraded confusion on root of the nose, over an area of 5cm X 3cm red. Lacerated wound on right parietotemporal region situated 14cm right to midline and 3cm above right ear, 6cm X 2cm red irregular margin, cavity deep with piece of bones and brain matter coming out. Lacerated wound on vertex just left to midline 5cm X 6cm, cavity deep with red irregular margins and brain matter coming out.
Beside the above findings, in the internal appearances also; it was found that the scalp hematoma on occipital region was 8cm X 9cm; all skull bones including base on skull were comminuted fractured; menings and vessels were lacerated; both the cerebral hemisphere in the brain were also lacerated at multiple sides; vertebrae, spinal cord, mouth, tongue, pharyx, larynx and other neck structures were intact and also nasal bones, right maxilla and right orbital bones were comminuted fractured. However, thorax, abdomen, muscles, bones 145 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others and joints were all intact. Stomach was empty.
PW2 opined the cause of death as staed in report Ex. PW2/A to be due to injury to the brain resulting from blunt force injury to the head, homicidal in nature, and all the injuries to be antemortem and fresh at the time of death and gave the time since death to be 12 to 24 hours.
31.22 PW2 further deposed that on the same day at about 3.30 p.m. he conducted the postmortem examination of the dead body of Aribam Rajen Sharma vide his report Ex. PW2/B and deposed about the injuries on his person as :
Postmortem staining present on the back and fixed, rigor mortis developed all over the body, dried blood stains on the back and neck, mixed with dirt stains, head deformed, Ligature marks present on both wrists. Abraded confusion on left side of the face over an area of 14cm x 12cm, red. Lacerated wound on left side of parietal region of head, 4cm from middle and 9cm above left ear, 4cm x 1.5cm, cavity deep with red irregular margins. Lacerated wound on vertex 2cm from midline and 14cm above left ear, 6cm x 2cm, cavity deep with red irregular margins.
Beside the above findings, in the internal appearances also; it was found that the scalp hematoma over occipital and both perietal region; all skull bones including base on skull were comminuted 146 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others fractured; menings and vessels were lacerated; diffused extradural, subdural and subarachnoid hemorrhages present on both cerebral hemispheres, lacerations of both cerebral hemisphere at different sites in the brain; vertebrae, spinal cord, orbital, aural and nasal cavities mouth, tongue, pharyx, larynx and other neck structures were intact. However, thorax, abdomen, muscles, bones and joints were also intact. Stomach contained semi digested food particles around 150gm.
PW2 opined the cause of death to be as stated in the report Ex. PW2/B to be due to injury to the brain resulting from blunt force injury to the head, homicidal in nature and all injuries to be ante mortem and fresh at the time of death and given the time since death to be 1224 hours.
31.23 PW2 further deposed that on the same day at about 4.20 p.m. he conducted the post mortem examination on the dead body of Yunam Token Singh vide his report Ex. PW2/C and deposed about the injuries on his person as :
Postmortem staining present on the back and fixed, rigor mortis developed all over the body, dried blood stains on the face and neck, head deformed, Ligature marks present on both wrists. Multiple abraded confusion on left side of forehead situated just above eye lid, 5cm from midline, over an area of 8cm X 6cm, red;
147 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Lacerated wound on vertex, transversely placed, just on midline measuring 13cm X 7cm, with red irregular margins and cavity deep.
Beside the above findings, in the internal appearances also; it was found that the scalp hematoma on occipital region; all skull bones including base on skull were comminuted fractured; menings and vessels were lacerated; diffused extradural, subdural and subarachnoid hemorrhages present on both cerebral hemispheres, lacerations of both cerebral hemisphere; vertebrae, spinal cord, orbital, aural and nasal cavities mouth, tongue, pharyx, larynx and other neck structures were intact. However, thorax, abdomen, muscles, bones and joints were also intact. Stomach was empty.
PW2 opined the cause of death to be as stated in the report Ex. PW2/B to be due to injury to the brain resulting from blunt force injury to the head, homicidal in nature and all injuries to be ante mortem and fresh at the time of death and given the time since death to be 1224 hours.
31.24 PW2 also stated to have handed over blood sample on a piece of cloth and scalp hair sample of each of the three dead bodies to PW4 and identified the same as Ex. P1 to Ex. P6 during his examination.
PW2 has not been cross examined.
148 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.25 The testimony of PW2 conclusively establishes the death of SDO Th. Kishan Singh, Y. Token Singh and A. Rajen Sharma was because of head injuries caused by blunt object which were antemortem and fresh, homicidal in nature and the death has taken place within 1224 hours of the postmortem examination.
31.26 PW4 had also deposed that one spade and two blood stained boulders were also found at the spot and identified the spade, boulders, woolen mufflers, handkerchief and wires as Ex. P7 to Ex. P15 during examination.
31.27 The postmortem examination of the dead bodies of Th. Kishan Singh, Y. Token Singh and A. Rajen Sharma was conducted at about 2.30 p.m., 3.30 p.m. and 4.20 p.m. as stated by PW2 and the time since death has been given 1224 hours meaning thereby that their death has taken place between 2.30 p.m. to 4.20 p.m. on 16.02.2009 to 2.30 to 4.20 a.m. on 17.02.2009. The accused in his confessional statement Ex. PW37/F has stated that he was informed about the death of the three captives at about 5.00/6.00 p.m. on 16.02.2009. And at the same time PW26, the driver of Bolero Jeep in which they were taken from Seikhor to Senapati in his crossexamination has stated that he reached Seikhor at about 5.30/6.00 p.m. and remained there for about an hour, reached Tuimen junction within 10 minutes and stayed there for about half an hour and that they reached Senapati at about 12.00/12.30 A.M. night and further stated that in Senapati for about an hour. He also deposed that all the persons sitting in his Bolero jeep left the jeep and 149 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Ashang instructed him to wait as they would go to Ukhrul. And he waited for about 4550 minutes when Ashang and one of his associates came back but SDO and other two meities did not come with Ashang who just told him that they have been dropped. According to the testimony of PW26, the death of three captives must have taken place after 12/12.30 A.M. to 1.30 A.M. on 17.02.2009 i.e. when they reached Senapati and started back for Ukhrul. PW26 has further deposed that they reached Ukhrul at about 7/7.30 A.M. on 17.02.2009 and dropeed Ashang and his associate at Council's Gate, Ukhrul who paid him Rs.4500/ as taxi fare.
31.28 The Ld. Sr. PP on this aspect has submitted that this part as to the time of death of the confessional statement can be ignored being contrary to the evidence on record and will not affect the validity of the remaining confessional statement as under the law it is not necessary that the confession is to be accepted or rejected as a whole and relied on the decision in Bhagwan Singh Rana v. State of Haryana AIR 1976 SC 1797.
31.29 On the other hand Ld. Counsel for the accused, on this aspect, has submitted that the confession is not truthful and has to be rejected as a whole.
31.30 As observed above substantial part of the confessional statement Ex.
150 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others PW37/F has been corroborated by the independent evidence of the persons abducted, who were released and the drivers of the two vehicles in which the abducted persons/captives were taken from one place to the other. And on account of a small discrepancy as to the time of death the entire confessional statement cannot be rejected and only the portion as to the time of death as reported to the accused and stated by him in his confessional statement Ex. PW37/F is liable to be discarded; as this does not go to the core of the matter as the maximum time since death is 24 hours falls within, the time at which the accused was informed of the death of the three captives (say death taken place between 2.30 to 4.20 p.m. on 16.02.2009 and accused informed of the same at about 6.00 p.m. on 16.02.2009).
31.31 In Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347, it has been held that where exculpatory part of the statement which is not only inherently improbable but stands contradicted by the other evidence making it wholly unacceptable, the court can reject the exculpatory portion of the statement and accept the inculpatory portion.
31.32 In Bhagwan Singh Rana v. State of Haryan (supra) relied upon by the Ld. Sr. PP, it has been held that it is permissible to believe one part a confessional statement and to disbelieve another, and that it is enough if the whole of the confession is tendered in evidence so that it may be open to the court to reject the 151 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others exculpatory part and to take inculpatory part into consideration if there is another evidence to prove its correctness.
31.33 No suggestion has been given to PW26 during his cross examination that the death of the three captives was caused at Seikhor village. Since as per PW26 the three persons taken to Senapati were alive till midnight on 16.02.2009 and as per PW2 and report Ex. PW2/A, Ex. PW2/B and Ex. PW2/C, the time since death was 12 to 24 hours, the portion of Ex. PW37/F which states that he (accused) was informed of the death of the three captives on 16.02.2009 at about 5/6 p.m. can be ignored being unbelievable, in view of the other evidence.
31.34 Though the accused has stated that he never had any intention to kill them, however, all the abductors were acting under the dictate of accused and all of them including the accused were acting as agent of each other right from the beginning and where the parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose, all are guilty of principal officence. The accused was being given information and instructions were being taken from the accused and the accused was supervising the operation, the accused is also liable for the death of the three captives Th. Kishan Singh, Y. Token Singh and A. Rajen Sharma.
152 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.35 PW22 who despite the threat extended to him while releasing had informed PW11 the very next day morning about the abduction and three persons in the custody of abductors, he could very well have informed the family of Dr. Th. Kishan Singh. And in this regard the conduct of PW21, PW22 and PW11 is highly uncalled for and deprecated. And because of their conduct, the three precious lives have been lost which could have been saved, had they informed the head of their office or the police, or to PW7 or to PW8.
31.36 The dead bodies of the three were found at the river bank near NH39 as deposed by PW29, PW27 and PW4. The accused in his confessional statement Ex. PW37/F has stated that he had allowed dumping of bodies at NH39 so that the same can be easily discovered/seen and can be taken away by their family members.
31.37 The accused in his confessional statement Ex. PW37/F has further stated as to what happened thereafter within his own organization and the superior organizations and also given the details of his arrest, where he was produced and where he was shifted etc. 31.38 The accused has made an endorsement 'I have read the confession and I admit it having seen reproduced as correct' in his own handwriting and signature and has signed on each page of the confessional statement starting from page no.10 to 20.
153 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.39 Moreover the accused in his statement u/s. 313 Cr. P.C. in answers to Q 471 to Q547 which relate to what he has stated in his confessional statement Ex. PW37/F admitted having stated so by saying it is correct. However, stated that he has stated so as per the instructions of IO.
31.40 PW43 the investigating officer SP Ganesh Verma in his examination in chief as well as crossexamination has stated about the meeting of the accused with his family members, relatives and advocates during the police custody remand and vide entry pass Ex. PW43/DB, one advocate has also met the accused on 10.06.2009 and only thereafter accused expressed his willingness in writing vide Ex. PW43/J and denied the suggestion that the willingness Ex. PW43/J was got forcibly written from the accused. And also denied firstly the application in the name of the accused was written by Inspec. L. Hangshing and then on his (PW43) instructions another application was got written from the accused forcibly in the handwriting of the accused for giving statement before the Magistrate.
31.41 Inspector L. Hanghshing has been examined as PW39 who also remained associated with the investigation when the accused was in police custody at New Delhi, however, during his cross examination no question has been asked nor any suggestion given to PW39 about writing of any application by him in the name of the accused.
154 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 31.42 Still further, as deposed by PW34 Insp. P. Shadang that he joined investigation at New Delhi on 03.06.2009 and he examined accused while he was in CBI custody and also taken him to Safdarjung Hospital. In his crossexamination he denied the suggestion that he did not examine the accused. There is no suggestion given to PW34 about any torture or putting of pressure or forcing the accused to be ready and willing to make a confession and to write the application Ex. PW43/J. 31.43 In the rejoinder dated 09.10.2009 to his application dated 20.08.2009, retracting the confession, the accused has stated that it was Inspector Alam Hongsing Kuki who had written the statement and he was forced to copy.
31.44 And in view of the contradictions it cannot be said that any of the CBI officer had first written the application and then the accused was forced to write the willingness Ex. PW43/J in his handwriting.
31.45 PW43 in his crossexamination has also denied the suggestion that during the police custody, he forced the accused to give a statement before the Magistrate as per his wishes and as per the contents told to him (the accused) by him (PW43).
31.46 PW43 also denied that he forced the accused to go before the Magistrate 155 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others and also that he told the accused as to what he (accused) has to state before the Magistrate. PW43 denied that during the police custody the accused was tortured and mentally harassed, was threatened and asked to act as per CBI directions and not to tell about threats and directions to any official or advocate.
31.47 As stated by PW43 and admitted by the accused in his statement u/s. 313 Cr. P.C. that his wife DW2 had met him during police custody. DW2 has also not deposed about any threat, pressure, torture or harassment of any kind caused to the accused by the CBI during the police custody or that she was told about the threat, pressure etc. by the accused during her meetings with him. The confessional statement Ex. PW37/F of the accused runs into 11 pages and gives the details of facts which were even within the knowledge of the accused only and as such it cannot be said that the IO told the accused as to what he has to state before the Magistrate and whatever the accused has stated in his statement Ex. PW37/F was as instructed by the IO. And as such the plea of the accused is not tenable.
31.48 As observed above, the substantial portion, almost the facts stated in the confessional statement Ex. PW37/F, have been fully corroborated by the testimony of prosecution witnesses, and is quite truthful and as such the second requirement as to the admissibility of confession as laid down in various decisions is also fulfilled. All the legal procedure as laid down in Section 164 and 281 Cr. P.C. and the various decisions of the 156 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others superior courts followed during the recording of confession and the confession can be safely acted upon.
32. As deposed by PW2 and as reflected in the postmortem reports Ex. PW2/A, Ex. PW2/B and EX. PW2/C, the death was caused due to brain injuries inflicted by blunt force injury to the head and all the skull bones were fractured apart from numerous other injuries. And as deposed by PW4 a spade and two blood stained boulders were available at the spot. As deposed by PW25 Dr. H. Jagadananda Singh and the examination report Ex. PW25/B, the blood on the spade, boulders, handkerchief and mufflers Ex. S1 to Ex. S6 was the human blood and blood stains on Ex. S1 and Ex. S5 were of group 'O'. PW25 has further deposed that the exhibits S1 to S6 when received in the office of CFSL were properly sealed and intact and were returned in a sealed condition after examination. And has also identified the exhibits Ex. P7 to Ex. P12 to be the same as examined by him. There is no crossexamination of the witness on these facts and that being so the inference is that the injuries on the head of all three were caused by the boulders.
32.1 PW32 Dr. B K Mahopatra, Sr. Scientific Officer Biology has examined the 6 exhibits in one parcel and 6 exhibits in another parcel. All these exhibits were categorised as A B C D E F which are the spade, boulders etc. and 2a, 2b, 3a, 3b,, 4a, 4b which are blood and hair samples of 3 deceased and vide his report dated 30.10.2009 ex. PW33/A has opined that they all contain blood. Further PW36 Sh.Sudesh Kumar Singla Sr. 157 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others Scientific Officer, Serology has also examined all these exhibits except exhibit 3b and vide his report dated 30.10.2009 Ex. PW36/A has opined that the blood of exhibits A to F and 4a and 4b was human blood of AB group and on exhibits 2a, 2b and 3b was of 'O' group.
32.2 Section 300 IPC defines murder as :
Murder - Except in the cases hereinafter accepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly - If it is done with the intention of causing such bodily injury as the offended knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
158 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 32.3 In the present case, as deposed by PW26 that the three captives were taken by the abductors to Senapati and they all left leaving him with his Bolero Jeep and told him that they are going to drop the three captives and had come back after about 45 50 minutes without the three captives and then they were brought to Ukhrul and in that way PW26 was the person who had last seen the three captives alive with the abductors. The dead bodies of the three captives were recovered on 17.02.2009 at Senapati and as such the death of three captives was caused by the abductors. As per the postmortem report Ex. PW2/A, Ex. PW2/B and Ex.PW2/C, the death was caused because of injury to the brain resulting from blunt force injury to the head. Blood stained Spade and boulders which have been opined to contain human blood have been recovered from the spot reflecting that the death has been caused by inflicting injuries with a spade and boulders. The inquest reports Ex. PW4/A and Ex. PW4/C state that the head of the body cannot be ascertained with fall of blood producing brain. The postmortem reports Ex. PW2/A and Ex.
PW2/C stated head deformed and brain matter coming out and all skull bones fractured. The injuries that have been caused to the head and the nature of injuries clearly reflect that same have been caused with the intention of causing death. And that being so the offence u/s. 300 IPC punishable u/s. 302 IPC stands proved against the accused.
33. Criminal Conspiracy has been defined u/s. 120A IPC as:
When two or more persons agree to do, or cause to be done 159 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation : It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
33.1 As laid down in various decisions that there cannot be any direct evidence of conspiracy as it is hatched in darkness and the same has to be proved by circumstantial evidence inferential in nature, antecedents, subsequent conduct and other factors.
33.2 In the present case as proved on record that there was a meeting of SDOs in the office of Deputy Commissioner, Ukhrul on 13.02.2009 which was attended by the SDO Kasom Khullen Th. Kishan Singh and the accused and his associates knew about the meeting and the SDO Th. Kishan Singh and his five staff members who were travelling in a gypsy were followed in a Bolero Jeep and then they were abducted. It has also been proved on record that the abductors arranged for a vehicle Bolero Jeep of PW26 and three abductors were already present outside DC office on 13.02.2009 when the Bolero Jeep was brought to DC office from taxi stand, who had boarded the Bolero Jeep of PW26 160 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others which followed the gypsy of the SDO Th. Kishan Singh from the DC Office itself. This reflects a preplanned operation by the abductors under the leadership of the accused to abduct the SDO Th. Kishan Singh and his staff members. The object of abduction was to demand Rs. 20 lacs as deposed by PW22 and PW21 and also stated by the accused to be recovery of money from the SDO on the pretext that he had earned the money by corrupt means i.e. by retaining 50% of the amount from the amount to be paid to the villagers and taking blank signatures of the village headman on the cheques. The primary object of this planning was abduction and demand of money from the SDO Th. Kishan Singh which itself is an agreement to do an illegal act and as such the ingredients of section 120A IPC are fulfilled and the accused is also liable for the offence punishable u/s. 120B IPC and since the offences u/ss. 392, 364A and 302 have been committed in pursuance of that agreement/common object, the same are also punishable as r/w section 120B IPC.
34. PW26 has further deposed that he was taken to PS Ukhrul and the Bolero jeep which he was driving was also taken by the police of PS Ukhrul. PW39 Inspector L Hangshing has deposed that during investigation he took over the possession of the vehicle from PS Ukhrul which was used in the abduction of Sh. T. Kishan Singh and others, and the same was identified by PW21, PW22 and Ramthing Shinglai at the compound of 2 Manipur Rifles where it was stationed vide memo Ex. PW18/1.
34.1 PW21 has deposed that on 11.05.2009 he had seen the black colour Bolero 161 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others jeep at the premises of 2nd Manipur Rifles and PW 22 and Ramthing Shinglai were also present at that time and he identified the Bolero jeep as there was a wooden seat near the Driver's seat and some wires were taped in the said Bolero jeep. He further deposed having signed the memo Ex. PW18/1 at the time of identification of the jeep. PW21 has not been cross examined on these facts.
34.2 PW22 also deposed that on 11.05.2009 he was shown the black bolero jeep in the premises of Manipur Rifles (2nd MR) which he identified to be the same as used in their abduction from Naga Gate to Langdang village. He also stated that there was one small wooden seat between the driver's seat and gear box, in the said vehicle which helped him to identify the vehicle. PW22 further deposed that the black bolero jeep was also shown to PW21 and Ramthing Shinglai for identification. Memorandum of identification ex. PW18/1 of black Bolero Jeep stated to have been prepared which was signed by him and he identified his signatures. PW22 has also not been cross examined on these assertions.
34.3 PW18 Ms. Mercina, SDM, Lamphelpet Distt. Imphal West, Manipur has deposed that on 11.05.2009 as instructed by the Distt. Magistrate, she went to the premises of 2nd Manipur Rifles located at Imphal West at about 4.00 P.M., where PW39 Inspector Hangshing of CBI, PW22 Ram Sing, Ramthing and PW21 Sh. Kapangkhui Jajo were also present. She further deposed the black Bolero Jeep bearing registration no. MN 162 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 04A2645 was identified by PW22, Sh. Ramthing and PW21 in her presence who told it the same vehicle in which they were asked to sit after stoping their vehicle on the road at Ukhrul and memorandum Ex. PW18/1 (D18) was prepared which she signed on each page. And in her crossexamination she stated the black Bolero jeep was already available there when she reached the premises of 2nd Manipur Rifles and confirmed the presence of PW21, PW22 and Sh. Ramthing there in the premises. She further stated in her cross examination that the memo Ex. PW18/1 was signed by them immediately after the same was prepared.
34.4 PW39 has further deposed that the vehicle was released to its owner Sh. L. Maropam Luikham vide memo Ex. PW39/A and portion of seat covers etc. were seized by him on 14.05.2009 vide seizure memo Ex. PW39/B (D17).
34.5 PW25 has also deposed that on the request of CBI vide letter dated 12.05.2009 Ex. PW25/D (D15) (Ex. PW43/H) he examined the Bolero Jeep no. MN04A 2645 thoroughly on 13.05.2009 and vide his report Ex. PW25/E dated 28.05.2009 forwarded vide letter dated 28.05.2009 Ex. PW25/F (D22) marked three clues S1, S2 and S3 and further he examined the exhibits S1, S2 and S3 vide his report dated 28.05.2009 Ex. PW25/G forwarded vide letter dated 28.05.2009 Ex. PW25/H (D35). The report Ex. PW25/G finds mention of presence of blood stains on the foot mat S3, however the same could not be deciphered to be human/animal blood as was insufficient.
163 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 34.6 Though the expert examination report Ex. PW25/G is not of much help to the prosecution however, from the deposition of PW39, PW21, PW22 and PW18 it is established that PW21 and PW22 with Sh. Ramthing identified the Black Bolero Jeep No. MN04A2645 being the one in which they were abducted from Naga Gate and taken to Langdang village in presence of PW18 and its seizure by PW39.
35. Coming the charge for offence u/s. 411 IPC, the prosecution case is that the mobile phone Ex. PW8/A belonging to Dr. Th. Kishan Singh which was taken from him at the time of his abduction on 13.02.2009, was recovered from the possession of the accused by his organization and was handed over to the CBI. To prove the charge, the CBI has examined PW33 Inspector L. Thomas Salu who has seized the mobile phone Ex. PW8/A. He has deposed that he had assisted PW43 in the investigation of the case and has recorded the statements of 13 witnesses and seized certain documents. PW39 further deposed that he collected the articles/instruments/weapons used in the killing of Th. Kishan Singh and two others and seized the same vide seizure memo Ex. PW33/A. In his crossexamination he denied having never visited Senapati and that he did not prepare seizure memo Ex. PW33/A. 35.1 He further deposed that in July 2009 PW43 deputed him to collect the mobile phone from one Sh. Levi Kachui who happened to be a Colonel in NSCN (IM), for which he went to Dinapur (Naga Land) and his meeting with Sh. Levi Kachui was arranged 164 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others by his wife Smt. Marve Relang PW5 and one Sh. Soloman. And also deposed that Sh. Levi Kachui produced two mobile phones, one of which is Ex.PW8/A, which were handed over to him (Shri Levi Kachui) by Head Quarter of NSCN (IM) with the instructions to produce the same before CBI. Shri Levi Kachui stated to have also produced a letter dated 06.07.2009 Ex. PW33/C (D42) and also stated to have told PW33 that the two mobile phone produced by him (Shri Levi Kachui) were produced by the accused Hopeson Ningshen at the time of his surrender before the NSCIN (IM) Headquarter.
35.2 PW33 further deposed that since PW43 had given only one mobile number he seized the mobile Ex. PW8/A, vide seizure memo Ex. PW33/B (D41) in presence of Sh. Levi Kachui and independent witnesses Sh. Soloman and Sh. Moses Athien.
35.3 The prosecution has not examined Sh. Levi Kachui nor any of the other two witnesses in whose presence the mobile phone Ex. PW8/A was seized. And it is only Sh. Levi Kachui knows as to who was in possession of the same and from whom it was recovered. PW33 has not recovered the mobile phone Ex. PW8/A from the accused at any point of time. And whatever PW33 has deposed attributing it to be stated by Sh. Levi Kachui as regards production of mobile phone by accused Hopeson Ningshen is all hearsay and inadmissible in evidence.
165 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 35.4 Moreover the mobile phone Ex. PW8/A also happened to be a subject matter of section 392 IPC which has already been held to have been established.
35.5 Further there is nothing in the confessional statement Ex. PW37/F on the aspect of surrender and production of mobile phones before the NSCN (IM) Headquarter.
35.6 In view of the same, it is held that the prosecution has not been able to prove the charge for offence u/s. 411 IPC against the accused Hopeson Ningshen.
36. To prove the charge u/s. 16 Unlawful Activity (Prevention) Act 1967 the prosecution has examined PW31 Jojo Robertson, Chairman Kasom Khullen SubDivision Development Association (KKSDDA) who has deposed Mr. Angton SDC Kasom Khullen informed him on 17.02.2009 about the dead bodies of Dr. Kishan Singh and his two subordinates lying in RIMS hospital, Imphal at about 1.00 or 1.30 p.m., he immediately left Imphal to Kasom Khulklen in private jeep and convened a meeting of members and office bearers of KKSDDA and decided to hold protest rally and dharna at Kasom Khullen against the killings. He further deposed that they held a protest rally and dharna at Kasom Khullen on 18.02.2009 which was attend by villagers, students and social activists in large number. And in his crossexamination stated that killing of Dr. Kishan Singh and his subordinates was a sensitive and burning issue at that time.
166 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 36.1 The accused in his confessional statement Ex. PW37/F has stated that the situation in Ukhrul town was very tensed.
36.2 PW20 Mrs. Ch. Sachi, Under Secretary in the Govt. of Manipur who remained posted as Executive Magistrate in the office of Distt. Magistrate, Imphal from October 2008 to 16.03.2010, has deposed that due to killing of one Dr. Th. Kishan Singh SDM Kasom Khullen, Distt. Ukhrul and two other employees whose dead bodies were found in Distt. Senapati, there had been number of strikes and there was unrest in the area of Imphal and in order to maintain peace curfew order u/s. 144 Cr. P.C. Ex. PW20/A was issued by the Distt. Magistrate A. Ibocha Singh on 19.02.2009 and further deposed that curfew order continued till 18.04.2009.
36.3 PW30 Sh. Th. Amalkumar Singh who was working as Dy. Secretary, Govt. of Manipur has deposed that after considering the full facts and circumstances and evidence gathered during investigation as well as the recommendation of the authority appointed to independently examine the evidence gathered during investigation and on being satisfied about the commission of offence, the sanction u/s. 45 UAPA dasted 29.10.2009 Ex. PW30/A (D57) was granted against the accused persons by the competent authority. And in his crossexamination denied the suggestions that the material on record was neither considered independently by the independent authority nor by the officers of the Home Department nor by the competent authority and that instead of legal 167 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others justifications there were political and administrative reasons for grant of sanction which was granted in a mechanical manner. PW43 has also deposed having received the sanction order dated 29.10.2009 Ex. PW30/A (D57).
36.4 Section 16 UAPA provides punishment for a terrorist act. A terrorist act has been defined in Section 15 as :
(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of,
property; or
(iii) disruption of any supplies or services essential
to the life of the community in India or in any
foreign country; or
(iiia) damage to, the monetary stability of India by
way of production or smuggling or circulation
168 of 173
RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others of high quality counterfeit Indian paper currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or [an international or intergovernmental organization or any other person to do or abstain from doing any act; or], commits a terrorist act.
Explanation.......
a) ....................
b) ....................
(2) The terrorist act includes in act which constitutes an
offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.
169 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others
37. The definition of terrorist act as given in Section 15 of the Act is worded similarly to the definition of Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act 1987. And in Pulin Das alias Panna Koch v. State of Assam (2008) 2 SCC (Cri) 520 and Hitentra Vishnu Thakur and others v. State of Maharashtra and others (1994) 4 SCC 602 it has been held that under section 3(1) whoever with intent(i) to overawe the Government as by law established; or (ii) to strike error in the people or any section of the people; (iii)to alienate any section of the people; or(iv) to adversely affect the harmony amongst different sections of the people, does any or things by using (a) bombs or dynamite, or (b) other explosive substances, or (c) inflammable substances, or (d) firearms, or (e) other lethal weapons, or (f) poisons or noxious gases or other chemicals, or (g) any other substances (whether biological or otherwise)of a hazardous nature in such a manner as to cause or as is likely to cause (i) death, or (ii) injuries to any person or persons, (iii) loss of or damage to or destruction of property, or (iv) disruption of any supplies or services essential to the life of the community, or (v) detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a "terrorist act"
punishable under the said section.
It has further been laid down that an activity which is sought to be punished under Section 3(1) of TADA has to be such which cannot be classified as a mere law and order problem or disturbance of public order or disturbance of even tempo of the life of the 170 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others community of any specified locality but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of the "terrorist" is such which travels beyond the gravity of the mere disturbance of public order even of a "virulent nature" and may at times transcend the frontiers of the locality and may include such antinational activities which throw a challenge to the very integrity and sovereignty of the country in its democratic polity.
37.1 In the present case, the accused belongs to NSCN (IM) and is a rank holder in Naga Army Wing of that organization as stated by PW5, PW6 his brother, DW2 his wife and PW35.
37.2 PW5 has stated in her crossexamination that NSCN was not a banned organization in the year 2009. PW12 has deposed that NSCN (IM) is an extremist organization active in Manipur, however, he also stated that political process with Govt. of India they observed ceasefire in the year 2009. In his crossexamination PW12 stated as per his understanding Govt. of India does not consider NSCN a banned organization whereas Govt. of Manipur considers them a banned organization and is against the peace process between Govt. of India and NSCN (IM). In his crossexamination he admitted that there was a peace process with NSCN (IM) and its workers were working openly in public.
171 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 37.3 PW19 Sh. Lanuyapang, Sr. Assistant in the Govt. of Nagaland, has deposed about the ceasefire agreement executed in 1997 between Govt. of India and NSCN (IM) details of which are contained in booklet Mark MI, which has been extended from time to time and still in existence.
37.4 The accused in his confessional statement Ex. PW37/F while giving the details of NSCN (IM) has stated about the ceasefire agreement executed in 1997 and still in operation.
37.5 Nothing has been brought on record nor it is the case of the prosecution that despite ceasefire agreement of 1997, the NSCN (IM) people are kidnapping, abducting and killing persons holding high positions in civil administration or habitually indulge in criminal activity frequently so as to create law and order problem every now and then.
37.6 Further there is no use of bombs, dynamites, other explosive substance or inflammable substance or firearm in causing death or injury to any of the three captives and the holding of protest, rallies, dharnas etc. can only be said to be a mere law and order problem and not a terrorist act within the meaning of section 15 and as such no offence u/s. 15 r/w section 16 UAPA is proved against the accused.
172 of 173 RC No. IMPH2009S0002 & IMPH2009S0003CBIACB IMPHAL CBI versus Hopeson Ningshen & Others 37.7 PW43 has also proved the other procedural and ministerial acts done by him for completion of investigation and proved the various letters written to various authorities for collection of evidence and completed the investigation.
38. In the final analysis, accused Hopeson Ningshen is held guilty and accordingly convicted of the offences u/s. 120B IPC r/w 364A/392/302 IPC and for offences u/s. 364A r/w Section 120B IPC; u/s. 302 r/w 120B IPC; and u/s. 392 r/w 120B acquitted of the charges for offence u/s. 411 IPC and u/s. 15/16 UAPA.
ANNOUNCED IN OPEN COURT (V.K. GUPTA) TODAY ON 31st MAY 2014 Spl. Judge(PC Act), CBI02 New Delhi 173 of 173