Gauhati High Court
Santosh Boro And Ors. vs State Of Meghalaya on 26 March, 2008
Equivalent citations: 2008(2)GLT1
Author: H.N. Sarma
Bench: Aftab H. Saikia, H.N. Sarma
JUDGMENT H.N. Sarma, J.
1. This criminal appeal arises out of the judgment dated 11.12.2002 passed by the Addl. Deputy Commissioner, East Khasi Hills District, Shillong, in GR Case No 336(A)/1998 convicting the appellant No 1 under Sections 302/34, IPC, the appellant No. 2 under Section 302/34, IPC read with Section 25 (1-A)(1-B) of the Anns Act, the appellant Nos 3 and 4 under Section 109/34, IPC read with Section 25(1-A)(1-B) of the Arms Act and sentencing the appellant Nos 1 and 2 to undergo life imprisonment and to pay a fine of Rs. 2,00,000.00 by each of them and the appellant Nos 3 and 4 to undergo imprisonment for 14 years and to pay a fine of Rs. 1,00,000.00 by each of them.
2. We have heard Mr N.S. Deka and Mr P. Das, learned Counsel for the appellants and Mr R Goswami, learned Public Prosecutor, Meghalaya.
3. The unfolded prosecution case, inter alia, is that on 24.11.1998, the Officer-in-Charge, Rynjah Police Station received a written complaint from one Smt YV Gatphoh of Lumshngain, Rynjah, to the effect that on the morning of 24.11.1998 in between 12.30 AM an 1.00 AM when the inmates of her compound were sleeping, her husband hearing some noise in their compound, went to the front door with the .22 rifle to go out to see as to whether anybody was there outside. Later on she heard a cracking sound and she went to the front door where she found her father V.D. Diengdoh and her husband SI Pariat were lying on the ground with injuries in a pool of blood. Two persons were beating them with iron rods by shouting "maro maro", out of whose one was well built, stout and tall and the other was slim and tall. Both of them were wearing dark jackets but she could not see their faces and she started shouting "police police" so as to awaken the neighbours. She also suspected that three or four more persons might be waiting outside their gate. The miscreants fled away and her daughter came out of the bed room and closed the front door. Thereafter she telephoned to the police and the other family members. The injured persons succumbed to their injuries a few hours later at Nazareth Hospital at Shilling where they were taken. Later on she could know that the miscreants have taken away the .22 rifle belonging to her father.
4. On receipt of the complaint, the Offier-in-Charge, Rynjah Police Station registered the Rynjah PS Case No 75(11)1998 under Section 396, IPC, read with Section 25(1A)(1B) of the Arms Act and the process of investigation was set into motion. The Investigating Officer prepared inquest report over the dead body. Autopsy over the dead body were conducted by the medical officer of Civil Hospital at Shillong. During the course of investigation, the Investigating Officer seized incriminating materials in presence of the seizure witnesses, recovered arms and ammunitions as per seizure list, material exhibits were sent to Forensic Laboratory at Kolkota and Shillong, blood samples were taken from the victim, iron rods were seized and sent for the expert opinion, arrested the accused persons and TIP was held for identification of the accused/appellant No 1. Confessional statements were recorded by the Magistrate under Section 164 CrPC and the statement, of prosecution witnesses were recorded under Section 161, CrPC. After completion of the investigation, a prima facie case having found to be established against the accused persons the Investigating Officer submitted charge sheet against them and sent up for trial.
5. It is to be noted herein that during the course of investigation, the Investigating Officer having not found sufficient materials against the accused Noor Mahammad Ali, he was not sent up for trial and another accused, namely Md Ahmed Ali died during the course of investigation in an encounter with the police on 27.11.98. Upon submission of the charge sheet on 3.5.99, the case was endorsed the learned Addl. Deputy Commissioner, Shillong, for necessary disposal. The learned trial Court on perusal of the materials submitted by the Investigating Officer and upon hearing the prosecution and the defence framed charges against the accused persons, which were explained to the accused and they pleaded not guilty and urged to be tried.
6. The appellant No 1, the accused Deepak Pator and Nazrul Islam were charged under Section 396, 302 and 34, IPC, the appellant No 2 was charged under Section 396, IPC, read with Section 25 (1-A)(1-B) of the Arms Act and Section 302/34, IPC, the appellant No 3 was charged under Section 109, 396, IPC, read with Section 25 (1-A)(1-B) of the Arms Act and Section 302/34, IPC, and the appellant No 4 was charged under Section 396, IPC, read with Section 25 (1-A)(1-B) of the Arms Act and Section 109, 216 (A), 396, 302, 34, IPC.
7. During the course of trial, the prosecution examined as many as 29 witnesses and the defence also examined as many as 3 defence witnesses in support of their case. During the course of the trial the accused Deepak Pator escaped from the jail on 25.9.2001 and the prosecution could not apprehend him. After closure of the prosecution witnesses, the accused persons were examined under Section 313, CrPC, pointing out to them the circumstances that appeared against them during the course of trial to which they denied. The accused also retracted from confessional statements made during the course of investigation in presence of the Magistrate. Three defense witnesses were also examined. At the end of the trial, the learned trial Judge, after consideration of the materials and evidence available on records convicted the appellants and sentenced them in the manner as aforesaid and acquitted accused Nazrul Islam of the charges, vide judgment and order dated 11.12.2002.
8. In order to find out justifiability of the conviction and sentences imposed upon the accused persons, let us see how far the prosecution was successful to establish the case justifying the conviction on the touchstone of the evidence of the witnesses and other materials on record.
9. PW-1, Ms Y V Pariat Gatphoh, the complainant, in her evidence in-chief reiterated her statements made in the FIR and proved the FIR as Ext- 1 and Ext- 1(1) her signature.
10. In her cross-examination, this witness she has seen two persons beating her husband and her husband but she could not recognize the assailants. PW-1 was re-examined by the prosecution on 19.12.2000. On such reexamination, she stated in her evidence that the .22 rifle owned by them is a licenced gun bearing the following particulars No 12499 and the same was a crego(sic) made in Germany. The materials Ext- 20 is the said .22 rifle. The police seized the said rifle and the material Ext- 23 is the seizure list and Ext-23(1) is her signature. In cross-examination, she stated that the .22 rifle was registered in the name of her father and later on in the name of her husband and the said gun was kept in the house for protection. She was further recalled for re-examination on 24.5,2002 but no material could be extracted from her in support of defence. Interestingly this witness was re-examined by the prosecution on 24.5.2002 wherein she stated that there could have been more persons in the assault in their compound and they might have hidden in the compound.
11. PW-2, D Lyndon, the Scientific Officer, working in the Forensic Laboratory Science, Shillong. This witness proved the material Ext- S 115(1) is the iron rod containing human blood. Ext- S 115(2) is the blood sample of UG Diengdoh. Ext- S 115(3) is the blood sample of SI Pariat. Material Ext-2, the shirt of deceased SI Pariat, marked by the Forensic Science Laboratory as Ext- S 115(4), material Ext- S 115(5) is the vest of deceased UG Diengdoh, Ext-S 115(6) is the blood sample collected from the place of occurrence, Ext- S 115(7) is the sample of blood collected from the clothes of the deceased. He stated that the blood group found in the material Ext-1 is the same as the blood collected from the shirt of the deceased SI Pariat. He proved his report which was submitted after conducting the examination vide Ext- 2 and Ext- 2(1) is his signature. This witness was cross-examined by the defence but no material could be elicited from him.
12. PW-3 is the Ballistic Expert working in the Forensic Science Laboratory, Shillong. He proved his report vide Ext- 7 submitted after examination of the materials vide Ext-6. Ext- 7(1) is his signature. This witness was not cross- examined by the defence.
13. PW- 4 is the brother of PW-1 and a businessman. He deposed in his evidence that on receipt of the telephonic information from P W-1 about the occurrence, he came along with his neighbours and he saw that his father and his brother-in-law were lying in a pool of blood. He accompanied with the victim to the nearest hospital for necessary treatment wherein his father and his brother-in-law died within an hour. PW- 4 further stated that he saw the police personnel searching in the compound of his sister and found a revolver and bullets in the place of occurrence. The police also seized clothes of his father and the brother-in-law.
14. The police also seized the clothes of his father and his brother-in-law which they were wearing at the time occurrence. He proved the seizure list as Ext- 8 and Ext- 8(1) is his signature. He also proved three packets in which seized materials were kept as Exts- 8, 9 and 10. This witness was not cross-examined by the defense.
15. PW- 5 is the Secretary of Durbar Shnong, in his evidence deposed that on 24.11.98 at around 1.00 AM he received a telephone call from his friends that there was hue and cry in the house of S.I. Pariat and U.G. Deingdoh. Immediately he contacted other members of the locality and he came out along with another person S.S. Kharsyntiew to the place of occurrence where he found that SI Pariat and U.G. Deingdoh were lying injured in pool ofblood on the floor of their compound. He noticed a revolver and other arms and ammunitions as well as the chamber of bullets lying scattered. This witness also reported to the police about the incident verbally. When he returned to the place of occurrence along with the police. But he found that the victims were removed to the hospital for treatment and the police started investigation.
16. P.W.- 6, Shri S.S. Kharsyntiew, a neighbour next to the house of the victims, in his evidence deposed that on 25.11.98, he got a telephone call at about 1.00 AM from PW- 5 that an incident occurred at the house of SI Pariat and UG Deingdoh. Accordingly, he reached the place of occurrence along with PW- 5 where he found that SI Pariat and UG Deingdoh were lying injured on the floor in their compound and they were profusely bleeding. After seeing this he along with PW-5 rushed to the Rynjah Police Station. When he returned to the place of occurrence along with the police. But he found that the victims were removed to the hospital for treatment and the police started investigation.
17. P.W- 7, Shri R.G. Lyngdoh, an MLA of Lytumkrah, deposed that on 24.11.98 at about 1.00 AM he received a telephone call from PW-1 requesting him to come to her place as there was some trouble. On reaching the place of occurrence he saw that SI Pariat and UG Deingdoh were lying on the floor inside the compound with multiple head injuries profusely bleeding. The relatives of the victims also arrived there and they shifted both of them to Nazareth hospital for medical treatment. On enquiry he came to know that some miscreants attempted for robbery and when the victims prevented them, they beaten up the victims with iron rods, etc.
18. PW- 8 is a seizure witness. This witness was also present at the time of conducting inquest on the dead bodies of the of the victims. In his evidence he stated that the police seized one iron rod with plastic rope coated, some arms and ammunitions and a spectacle as well as some blood samples also from the place of occurrence. This witness also proved the Ext- 9 as the seizure list and Ext- 9(1) is his signature as well as material Exts- 7, 8, 9, 10, 10(1), 11, 11(1), 12, 12(1), 13 and 41.
19. PW- 9 is the daughter of PW-1. In her evidence she deposed that their house is a two-storied building and she was sleeping on the upstairs on the date of occurrence. She did not see the miscreants as the miscreants might have fled away before could come down. The relatives and the neighbours took away the victims to the hospital for treatment
20. In cross-examination, this witness stated that she could saw some blood near the injured persons.
21. PW-10 in his evidence deposed that on 24.11.98 at about 12.30 to 1.00 AM he received a telephone call from Shri Gilbert Deingdoh to the effect that SI Pariat and UG Deingdoh were attacked by miscreants at their house at Rynjah. He rushed to the place of occurrence along with PW- 7. On the way he saw two persons near to the house of the victim walking on the road with arms. On seeing these persons they stopped the car and came out of the car asking them to stop. They stopped facing towards him about 6 to 8 ft away. But the other relative sitting in the case call him back to the car so that they can first attend the victims. On reaching he saw that victims were lying face down seriously injured covered with blood. He took the victim SI Pariat to the Hospital and his younger brother took UG Deingdoh to the hospital in two separate cars. Both the victims succumbed to their injuries around 2 to 4 hours interval. Dead bodies were taken to the civil hospital for post mortem and after the post mortem the dead bodies were returned for funeral. This witness proved the material Exts- 4, 7, 10, 14 and 15. He also proved the seizure list as Exts- 9 and 11. Ext- 9(2) and 11(2) are his signatures. This witness also identified two accused persons whom he faced on the road near the place of occurrence who disclosed their names as Nazrul Islam and Santosh Boro.
This witness was cross-examined by the defense.
22. PW-11 in his evidence deposed that he and P W-10 were going towards the place of occurrence and they could see some people running away from the place of occurrence and about 50M ahead from the place of occurrence when their car came close to them, P W-10 got down from the car to face them but this witness call back him as they were to reach the place of occurrence first. On reading the place of occurrence he saw that the victims were lying injured on the floor inside their compound in a pool of blood. He along with his brother took the victims to the hospital. SI Pariat succumbed to his injuries within 2 hours and UG Deingdoh 2 hours thereafter. Dead bodies were taken to the civil hospital for post mortem and after the post mortem the dead bodies were returned for funeral.
23. PW-12 is a seizure witness. He stated in his evidence that the accused persons standing on the dock all were residing in his village. He could also see the well built tall person and the other person with green jacket in the village. When the police conducted search in the rented house of one Ahmed Ali where Deepak Pator and Mihir Pator stayed in a rented house. He proved the material Ext-14 and Ext-14(1) is his signature. This witness further stated that Exts-16 to 19 were seized in presence of him but he put his signature only to Ext-14 as seizure witness.
24. PW-13 is the police constable who accompanied the search party headed by the Officer-in-Charge, Nongmysong, for searching a house at Umkdait and seized the weapons mentioned in Ext-14. This witness proved material Exts-14, 16 to 19. Ext-14(2) is his signature. He identified the persons standing in the dock one as Deepak Pator and other two by appearance whom arrested by the police on 25.11.98 after Exts-14, 16 to 19 seized.
25.In cross-examination this witness stated all the material Exts-14, 16 to 19 were seized from the possession of two accused persons, one of them he known as Deepak Pator. He further stated that when the police reached house of the accused person, the door of the house was closed and two persons were sitting in the room. They entered the house by opening the door in presence of PW-12.
26. P.W.- 14 is the another seizure witness. He in his evidence deposed that on 26.11.98, the police came to the house of his neighbour Shri BN Hazarika. All the tenants were called out. The police seized the .22 rifle from the possession of the appellant Jyotish Kalita. He proved Ext- 20 as the .22 rifle. He also proved Ext-15 and Ext-15(1) is his signature. The police arrested Jyotish Kalita. He identified the person standing in the dock as Jyotish Kalita who was the Chowkidar of the compound of Shri BN Hazarika.
27. In cross-examination this witness stated that the door of the house was closed. The police thought this witness as the owner of the compound and accordingly, ordered him to open the house. The family of Shri BN Hazarika was not present at that time. The police entered house of Jyotish Kalita from back side where the police found Mrs Kalita was shivering but he did not see what was doing by Jyotish Kalita. The police opened the front door and went to the bed room of Jyotish Kalita where .22 rifle was found under the bed and police seized the same. The material Ext-20 is the .22 rifle.
28. PW-15 is the another tenant in the compound of Shri BN Hazarika who deposed in his evidence that during search he was also present along with other people, the police recovered a gun which is a rifle from the possession of Jyotish Kalita. The material Ext -20 is the said rifle. Ext-15 is the seizure list and Ext-15(2) is his signature.
In cross-examination this witness stated that the person standing in the dock was the caretaker and they called him Bhaiti. The gun and .22 rifle were recovered by the police from inside the house of Bhaiti in his presence. The material Ext- 21 is the .22 rifle.
29. PW-16 is the doctor who conducted post mortem examination on the dead body of SI Pariat. The dead body was taken to the morgue of the civil hospital at about 10.15 AM of 24.11.98 and he conducted post mortem at about 10.30 AM. He found lacumation as well as abrasion of the left eye, right side of face, right side of fore head, left knee, upper part of the left leg and more grievious injury is the leaser injury of the head which was 7.2 cm long and 2 cm wide found over the inter parietal repir of the head (middle of the head) at about 1.5 cm above the right ear. Another serious injury was found on the corner of the left leg which according to him is bullet injury below the knee came from one direction and came out from other direction but the bullet was not found in the body. He could not describe the type of bullet. He further described that the injury which might have caused the death to the victims is fatal injury on the head causing fracture of the bone of the head which has been broken into pieces and went inside the brain. According to him, the injuries were caused by some hard blunt object with considerable force. In his opinion, the death was due to shock and haemorrhage following the head injuries.
In cross-examination this witness stated that the blood samples were collected from the dead bodies in presence of the First Class Magistrate as requested by the Officer-in-Charge, Rynjah PS. He proved Ext-16 as the post mortem report prepared by him. Ext-16(1) is his signature. The DM and HO agreed with his finding and accordingly he put his signature. Ext-16(2) is his signature.
30. The dead body of UG Deingdoh was brought for post morten at about 8.20 AM on 24.11.98 and the post mortem was conducted by him at about 8.30 AM. He found multiple bruise over the eyelids of both the eyes, back of the right forearm abrasion over the forehead, nose, chin area, right index middle finger and cut rounds were found on right cheek, right shoulder tip and lacerated wounds were found on the right temporal region of the head. 8.5 cm long and 5 cm wide and the distance above the right ear was 4.2 cm. Another wound above the inter parietal region over the middle of the head size is 3.5 cm x .5 cm at a distance of 14.8 cm from the bridge of the nose. The fatal wound was the laceration over the right temporal region where there is a fracture of the right temporal bone with indentation of the fractured parts inside the brain (right side of the head)
31. According to him, cut injuries were caused by some double edge object and lacertaion was caused by some hard blunt object hit over the head with some considerable force and the cause of death was due to shock and haemorrhage following the multiple injuries on the head.
In cross-examination this witness stated that he had collected blood samples at the requisition of the Officer-in-Charge, Rynjah PS in presence of First Class Magistrate and handed over the same to SI W Kharbuki. He proved Ext-19 as his handing over note. Ext-9(1) as his signature. Ext-19(2) is the signature of SI Kharbuki who received the said blood samples. Ext-19(3) and 19(4) are the signatures of the First Class Magistrate, P Khongmen and H, Nongpluh. He further proved the post mortem resport as Ext-18. Ext-18(1) is his signature. Ext-18(2) is the signature of the DM and HO who agree to the post mortem report prepared by him.
32. PW-17 is a seizure witness and knows the three accused persons, namely Nazral Islam, Mihir Pator and Deepak Pator being the close neighbours. On 25.11.98 the police came to their place raided the house and recovered the arms and ammunitions from their possession and arrested them. This witness proved Exts- 16 to 19. He also proved the seizure list as Ext-14 and Ex-14(3) is his signature.
In cross-examination this witness stated that he is only a witness to the seizure and he did know nothing about the incident.
33. PW- 18 is the Magistrate who recorded the confessional statement of three accused persons, namely Deepak Pator, Jyotish Kalita and Mihir Pator under Section 164, CrPC. According to this witness, no police personnel was present in her chamber at the time recording the confessional statement. In the confessional statement Deepak Pator stated that he and other two persons went to Rynjah for commission of dacoity. Deepak was given a rod by Ahmed and he was standing as a guard while the other three entered the compound and two persons came out of the house and started quarrel with them. Santosh Boro hit one of them. Deepak Pator ran away and later on other three persons also followed him and went to the Kalit's house. Thereafter all of them came back. He could see Zakir Hussain came back with a gun in his hand. After commission of the offence four persons spent the rest of the night at Kalit's house and left in the next morning. This witness proved Ext- 20 as the confessional statement of Deepak Pator. Exts- 20(1) to 20(4) are her signatures.
34. This witness further stated that in the confessional statement the accused Jyotish Kalita stated before her that on 24.11.98 at about 9.00 PM four armed persons went to his place and enquired about a rented house and when the accused Jyotish Kalita replied that there is no vacant house, the four armed men left the place. But on the same night at about 2.00 AM these four armed men came back his place with a gun and kept the same in his place. On 27.11.98 the accused Jyotish Kalita was arrested by the police and the gun was seized. This witness proved Ext- 21 as the confessional statement of the accused Jyotish Kalita. Exts- 21(1) to 21(4) are her signatures.
This witness also deposed in her evidence that the accused Mihir Pator stated in his confessional statement that Zakir Hussain, Santosh Boro and Deepak Pator stayed in the house of Ahmed at Lalchand and Mihir Pator worked as a cook. On 23.11.98 the four persons left the house. Ahmed told to Mihir that they would not come back for the night and they returned on 24.11.98 at about 6.30 AM. Mihir Pator was arrested on 27.11.98 along with Deepak Pator. This witness proved Ext- 22 as the confessional statement of Mihir Pator. Exts- 22(1) to 22(4) are her signatures.
This witness further deposed that all the three accused persons made their confessional statements voluntarily in her presence, which were recorded by her.
35. This witness was cross-examined by the defense. In reply to the questions put by the defense as to whether she has afforded three hours time to the accused persons for reflection before recording their confessional statements or there might be wrong translation from Hindi to English as the accused persons replied in Hindi, this witness replied that the three accused persons were produced before her at about 11.00 AM on 14.12.98. She did not put questions to the accused in English but she asked them in Hindi to give their statements voluntarily. After recording confessional statement of one accused person he was allowed to stay out her chamber. After recording the statements the accused persons were sent to the police lock up. The case records were kept with her in the office. She did not record the questions put by her to the accused persons but the reply to the questions given by them were recorded.
36. PW-19 is the Circle Inspector of Police. In his evidence he deposed that his duty was only to supervise the investigation and when he found prima facie case against the accused persons, he directed the IO to submit charge sheet.
37. PW- 20 is an MLA and a Minister at the relevant time. After the mid night of 23.11.98 she received a telephone call from her nephew PW-11 that SI Pariat and UG Deingdoh were stabbed. He picked up me (?) to the place of occurrence along with other nephew. On the way to the place of occurrence, near to the house of SI Pariat and UG Deingdoh they saw some persons were coming through the lane. PW-10 stopped the car and got down from the car to chase them but his brother PW-11 called back him as they were to reach the place of occurrence. On reaching the place of occurrence this witness saw that the victims were lying on the ground profusely bleeding. She along with others took the injured persons to the hospital for medical treatment. In the hospital SI Pariat succumbed to his injuries first and thereafter UG Deingdoh.
38. PW- 21 is the Officer-in-Charge of Rynjah Police Station. In his evidence he deposed that he visited the place of occurrence and directed the 2nd officer to do all the formalities and he also visited the hospital where injured persons were admitted. He further stated that on receipt of the FIR he registered a case being Rynjah PS Case No 75(11)98 under Section 396, IPC read with Section 25(A-1)(B-1) of the Arms Act. He proved the FIR as Ext-1 and Ext-1 (2) is his signature. He collected the blood samples from the dead body of SI Pariat and U.G. Diengdoh from the doctor in the hospital in packed and sealed condition and handed over the same to SI Kundu for transmitting the same to FSL examination. He proved Ext-19 as the list of the blood samples handed over to him belonging to U.G. Diengdoh and Ext-19(2) is his signature. Ext-17 is another list where the blood samples of another person handed over to him by Dr. A.A. Dkhar (PW 16) of Civil Hospital Shillong. After registration of the case, SI, B.R. Kundu was entrusted investigate the case. He accompanied the 10 for investigation till the accused were arrested. After submission of charge sheet, he was transferred from Rynjah Police Station.
39. PW- 22, Dr. K.J. Singh of Nazareth Hospital Shillong in his deposition he stated that on the midnight of 23-11-1998 and in early hours of 24-11-1998 two injured persons were brought to the hospital and he gave medical treatment to one S.I. Pariat at about 1:30 AM of 24-11-1998. He described the injuries as follows:" the injuries sustained by the injured persons are scalp injury on the right side of the head about 8 cm long black eye on the left side. Multiple superficial injuries on both lower limbs those were the external injuries the patients was comatose (which indicates brain injury) there was no response to pain. Whatever effort he and his team of doctors tried their level best to resuscitated the victim it was not effective and the victim was declared dead at 2:30 AM of 24-11-1998. The injured person was bought and admitted in the Emergency Department almost at the same time of 1:30 AM. About one hour he and his team of doctor continuously attended to the injured person SI Pariat to save his life but could not due to the serious injuries sustained by him. He proved Ext-24 as his medical report and Ext-24(1) is his signature. Ext-24 was handed by him personally to the police.
40. PW23, Dr. Hemanta Chetia of Nazareth Hospital, Shillong in the deposition stated that the patient namely UG Deingdoh was brought to Nazareth Hospital in a state of unconscious condition but still alive. The relative of the said injured persons told him that Shri. U.G. Diengdoh was assaulted by the miscreants and profusely bleeding from the nose and multiple injuries in the head. He was the first doctor to attend the injured person. He found that there was lacerated wound on the right side of the head called temporal region Approx 7 CM by 25 CM, over the bridge of the nose about 3 CM in length, back side of the head i.e. occipal and parietal region in a curved pattern about 7 CM in length approx, fracture on the bones on the bridge of the nose, Lacerated wound along the right shoulder (periotal shoulder). There was bleeding from both sides of the nose and multiple abrasion over the face. The patient was in coma not responding to painful. He thought of sending the injured person for X-ray, CT scan and other investigation only when the patient would improve. Therefore, the patient was shifted to the Surgery Department and looked after by PW32 and ultimately injured person succumbed to his injuries.
41. PW- 24 Dr V.K.Kashyap who conducted the DNA examination at Forensic Science Laboratory, Kolkota.He found the same group of blood from the blood samples and the blood collected from the iron rod. This witness proved Ext- 26 as his report. Ext- 26(1) is his signature. He also proved Ext- 27 as the forwarding letter of the blood samples issued by the Director, Forensic Science Laboratory, Meghalaya, to the Forensic Science Laboratory, Kolkota. Ext- 27(1) is the signature of the Director, Forensic Science Laboratory, Meghalaya.
42. PW-25 is the jailor of Shillong District Jail. In his deposition he stated that Deepak Pator was able to escape from the jail in between 2.00 to 5.00 AM of 25.9.2001 by breaking a grill of the room in which was lodged and with the help of a water pipe he crossed the jail wall. Neither the Warden of the jail nor the other staff could notice.
This witness was re-called. In cross-examination he stated that he witnessed TIP. There was no police personnel. Suspects were lined up along with 13 inmates of the jail. The suspect Santosh Boro pointed out and identified Deepak Pator. He proved Ext-32 as the TIP report and Ext- 32(1) is his signature.
43. PW- 26 is one of the tenants of Shri BN Hazarika. He posed that on 26.11.98 police visited the compound of Shri BN Hazarika and they told him that they came there to search in connection with a dacoity and double murder case. At that point of time the accused Jyotish Kalita who was standing in the dock and whom he knows as "Bhaiti" was very much present. The police recovered the gun from his house. He proved Ext-15 as the seizure list of the said gun and Ext-15(3) is his signature.
In cross-examination, the defense could not demolish the statement of this witness that the gun was not recovered from the house of the accused Jyotish Kalita.
44. PW- 27 is the Investigating Officer of the case. In his evidence he deposed that on receipt of verbal information of PW-10 and PW-11, he made GD Entry vide No 537 dated 24.11.98. He stated that when he reached the place of occurrence, the accused persons were fled away and the victims were shifted to hospital for medical treatment. He found that the place of occurrence was guarded by RCCwall. He also saw fresh blood on the ground, fire arms, ammunitions, one spade, one iron rod, one magazine with ammunitions and one revolver chamber. He cordoned the place of occurrence, seized the materials and started investigation as instructed by the Officer-in-Charge, Rynjah Police Station. He proved the seizure list, which he prepared in the place of occurrence in presence of the witnesses as Ext-10. Ext-10(3) is his signature. He also proved Ext-11 prepared in presence of the witnesses. Ext-11 (3) is his signature. He also called the dog squad, prepared sketch map Ext- 27 and visited the hospital where he found that the victims had succumbed to their injuries. He collected medical report of SI Pariat, Ext- 24 and the medical report of UG Deingdoh, Ext-25. He prepared inquest report over the dead bodies. He proved Ext-12 is the inquest report of SI Pariat, Ext-12(1) is his signature, Ext- Bis the inquest report of UG Deingdoh and Ext-13(1) is his signature. He collected blood sample of the victims as well as from the place of occurrence and sent the same to FSL, Shillong and Kolkota for examination. He arrested the accused persons and recovered arms and ammunitions from their possession. Having found a prima facie case he submitted charge sheet against all the accused persons and sent up for trial. This witness proved the seizure list Ext-14 and Ext-14(4) is his signature. He also proved the material Exts-16 and 17. He stated that during the investigation he visited the place of occurrence on 27.11.98 and seized the wearing garments of the victims vide Ext- 8 and Ext- 8(3) is his signature. He proved the material Exts- 5, 10, 11, 13, 15, 17, 20, 21, 22, 23, 24(1), 24(2), 25, 26, 27, 27(1), 28, 29(1), 29(2) and 31.
This Witness was cross-examined by the defense but nothing material could be extracted from him.
45. PW- 28 in his deposition stated that he conducted the TIP on 26.2.99 at 11.00 am in the District Jail in respect of Santosh Boro who was lined up along with 13 other suspects. Deepak Pator pointed out to him without any hesitation. At the time TIP, the Jailor of the District Jail was also present. Ext-31 is the TIP report and Ext- 32 is his signature.
After closure of the evidence of PWs, the accused were examined under Section 313, CrPC, pointing out to them the circumstances that appeared during the trial would be used against them as per the evidence of the witnesses to which they denied. The defense adduced three witnesses in support of their case.
46. DW-1, in her evidence deposed that her husband. Nazrul Islam, was busy in organizational work in a marriage ceremony of a daughter of their society on that day. On 26.11.98 her husband went out on his scooter but he did not come back and on the evening she could know that her husband had been arrested by the police at Guwahati. But she failed to understand as to why her husband had been arrested by the police.
In cross-examination this witness stated that she did not know that one Ahmed Ali directed her husband to bring one Santosh Boro from Guwahati. This witness even stated that she did not know that one Ahmed Ali was a friend of her husband he used to visited her house.
47. DW-2 is the mother of the daughter in whose marriage ceremony according to DW-1 her husband engaged himself in the arrangement of of marriage ceremony. According to the witness Nozrul lslam was engaged with the work of arranging the Pandals, seats and utensils, which had to be collected from various places and also to be returned. He had been helping her in the marriage ceremony of her marriage as she has no husband and also there was no other male person to help her.
In cross-examination this witness stated that she came to depose as Mr PK Borah told her the date of deposition. She knew that Nozrul Islam was arrested by the police at Guwahati on 26.11.98. She also did not know as to whether Nozrul Islam had committed any crime at Guwahati. She also even did not have any documentary evidence to prove that Nozrul Islam helped her in her daughter's marriage.
48. DW- 3 is the sister-in-law of Santosh Boro. In her deposition she stated that Sontosh Boro married her sister and her sister dies leaving two children. Sontosh Boro used to live with her along with his two children. During month of November, 98, Sontosh Boro was all along with her at Guwahati. He has been suffering from malaria and accordingly, he was hospitalized in Gurucharan Poly Clinic cum Nursing Home for his treatment for the period from 20.11.98 to 23.11.98. She also produced documentary Ext/A, a certificate from the said Nursing Home. She further stated that after discharge from the hospital on 24.11.98 her brother-in-law was at Guwahati till his arrest on 26.11.98.
In cross-examination this witness stated that her brother-in-law was not with her prior to 26.11.98. She also showed her inability to bring the doctor to prove the documentary Ext/A. She also showed her inability to produce the voucher for the payment made by her in the Nursing home. She stated that she had no knowledge if Santosh Boro was earlier arrested by police in correction with robbery and theft in Guwahati. She denied to all the suggestions put up by the prosecution but she admitted that her sister visited the jail when Santosh Boro was lodged in District Jail, Guwahati.
49. At the end of the trial, the learned trial Judge upon consideration of the statements of PWs, Forensic Science Laboratory report, confessional statements of the accused persons, found the accused appellants guilty and accordingly, convicted and sentenced them vide the impugned judgment and order in the manner as aforesaid.
50. Mr Deka, learned Counsel for the appellants, submits that the impugned conviction and sentence imposed upon the appellants is the result of total misappreciation and misreading of the evidence on record and that there is no evidence on records to justify the convection and sentences. He further submits that the confessional statements do not satisfy the requirement of Section 165, CrPC and those were made when the police present and the same cannot be relied at all and the materials available on record do not proof beyond reasonable doubt that the accused appellants had committed the offence. The learned Counsel further submits that TIP so held and relied on by the prosecution to identify the accused appellants is not a TIP in the eye of law and, in fact, it was conducted in utter violation of Section 9 of the Evidence Act. The learned Counsel submits that the accused appellants were arrested on suspicion and though the prosecution examined a large number of witnesses including documentary evidences, the guilt of the accused appellants could not be proved at all and, as such, they are entitled to be acquitted.
51. Mr. R. Goswami, learned PP, Meghalaya, on the other hand, supporting the impugned conviction and sentences submits that oral and documentary evidences relied on by the prosecution clearly establish the guilt of the accused beyond reasonable doubt in order to prove the guilt, as there is no eye witness to the occurrence, prosecution has relied on the circumstantial evidence and such circumstances having been established beyond doubt, the impugned judgment need not be interfered with.
52. We have considered the lengthy arguments and submissions made by the learned Counsel for the parties who led us extensively through the evidence and materials on records. In the instant case there is no eye witness to the occurrence. The occurrence took place in the dead night. PW-1 is the first person to witness the occurrence but she could not recognize the accused persons in the dark. The prosecution has also relied on the confessional statements of the co-accused. The prosecution further relied on recovery of incriminating materials from the possession of the accused appellants. In order to prove the guilt of the accused, the prosecution has also heavily relied on the TIP, the recovery of arms and ammunitions and Forensic Science Laboratory report to link between the incriminating materials and the acts of the accused appellants leading to the commission of the offence under the aforesaid section of law. In the absence of any eye witness, it is the burden of the prosecution to prove the guilt of the accused persons on the basis of the circumstantial evidence.
53. Since the appellants are convicted relying on the circumstantial evidence coupled with the confessional statements, the circumstances relied on by the prosecution are to be scrutinized and assessed on the touchstone of standard fixed by law on the subject as pronounced in various judicial decision rendered by the Apex Court on this point. If the prosecution succeeds in proving the sequence of events and circumstances which unerringly points only to the hypothesis of the guilt of the accused in that event the circumstantial evidence could be accepted as the basis of conviction, otherwise not.
54. Let us first scrutinize the confessional statements relied on by the prosecution. Ext-20 is the confessional statement of the accused Deepak Pator who escaped from the Jail during the course of trial. The said confessional statement of the accused Deepak Pator could not be utilized against him as he in the mean time escaped from the jail and could not be apprehended and his case was separated from the other accused. However, Ext- 20 shows that he was brought to the Court for recording statements on 14.12.98 at about 2.00 PM after having arrested on 27.11.98 just 2 days after the occurrence. PW-18, the Magistrate, who recorded the confessional statement, in his deposition, except saying that all the accused persons gave their confessional statement and no police personnel was present in her chamber, nothing was stated by her about the compliance of necessary formalities in recording the confessional statements as required under Section 164, CrPC. In cross-examination, PW- 18 stated that the accused persons were produced before her at 11 AM on 14.12.98 and after explaining the points noted at para 5.1 of the relevant form he sent the accused out side under the case of one D Swer (sic). He further stated that the accused persons were then taken to the police lock up and the case records were kept with her (?) in the office. She further stated that the accused persons were brought from the judicial custody of the District Jail, Shillong and kept in the PI lock up before they were produced before her and police personnel of the PI Section had accompanied the accused upto her office chamber. It is further stated that after recording the statements the accused persons were again taken back to PI lock up and while they were waiting outside for their turn to record their confessional statements, they were with police personnel. Ext- 20 disclose that the accused Deepak Pator did not entangle himself in the actual commission of assault and he was waiting outside the compound watching and hearing "halla' in side the house, he ran away from the scene.
55. Ext- 21 is the confessional statement of the accused Jyotish Kalita. In his statement he stated that on 23.11.98 at about 9 PM four armed men came to his place to enquire about the rented house. On 24.11.98 at about 2 AM they came again and brought with them a gun and they kept it in his place and he scared to go to the police, in case, the four armed men come and kill him and his family. He did not report anything to the police out of fear.
56. Ext- 22 is the confessional statement of the accused Mihir Pator. In his statement he disclosed that on 23.11.98 at about 7.30 PM one Ahmed Ali, Zakir, Boro and Deepak hold him that they would not come back that night and asked him to sleep and he did accordingly. In the statement of Deepak Pator he has not implicated him in any manner, and his statement is a self-exculpatory one. Confession is admission of guilt. But no such admission of guilt is found from the statement of the accused Mihir Pator.
56. Now let us examine the manner and method by which the confessional statement was recorded. Confessional statement has to be recorded strictly adhering to the procedure prescribed by law under Section 164 and 281, CrPC. Accused persons retracted from the confessional statement when they were examined under Section 313, CrPC. The accused appellant Mihir Pator in his statement under Section 313, CrPC, while question was put to him on such confessional statement he denied that the Magistrate explained to him in the manner PW-18 stated in her evidence. In replying to the question No. 33, Mihir Pator denied to have made such statement and thus he retracted from his statement.
57. The accused appellant Jyotish Kalita while he was put the question relating to the confessional statement made by him stated that the statement made by him is true but the gun referred was given to him by Deepak Pator.
58. From the evidence of PW-18, the Magistrate, who recorded the confessional statement, we find that the aforesaid three persons were brought before her for recording confessional statement from the police lock up by the police constable. Their statements were recorded one after another and while recording the statement of one others were allowed to stay together out side her chamber and after recording of the statement, they were again taken back to the police lock up in the PI office. The evidence of PW-18 is silent about the compliance of the procedure and the precautionary measure required to be taken under Section 164, CrPC, before recording a confessional statement except saying that she explained the points mentioned in para 5 of the form.
59. In recording confessional statement, elimination of apprehension of police from the mind of the accused person is of utmost importance. Further the confessional statement also do not contain memorandum at the foot of the statement as provided under Section 164(4), CrPC. The close scrutiny of the said statement disclose that although at Clause 10 of the statement, it is recorded that the accused were forwarded to the judicial custody at Shillong, but the evidence of PW-18 deposed before the Court that comes out in cross-examination that they were sent to the police lock up in the PI Court along with police constable. Apart from those statements being self-contradictory, the Magistrate recording confessional statement failed to observe the procedural rituals in recording of confession. Recording of confessional statements is a solemn act of a Magistrate and due care must be taken to eliminate the apprehension from the mind of the accused scrupulously following the provisions of Section 164, CrPC in recording of such statements.
From the evidence of PW-18 read with Exts- 20,21 and 22 we are not at all satisfied that the apprehension/influence of police was removed from the minds of the accused persons before recording their confessional statements. In fact, they were put inside the chamber of the Magistrate by the police personnel bringing from the police lock-up after recording their statement they were escorted by the police constable to the lock up again. In such a situation we are unable to hold that Exts- 20, 21 and 22 were voluntarily made. Those are self ex-culpatory and retracted later on.
60. In the case of Palvinder Kaur v. State of Panjub , when the issue regarding exculpatory confessional statement posed before the Court, the Apex Court at paragraphs-16, 17 and 18 held as follows:
16. The statement read as a whole is of an exculpatory character. It does not suggest or prove the commission of any offence under the Penal Code by any one. It not only exculpat\e her from the commission of an offence but also exculpates Moninderpal. It states that the death of Jaspal was accidental. The statement does not amount to a confession and is thus inadmissible in evidence. It was observed by their Lordships of the Privy Council in Pakala Narayanaswamy v. Emperor , that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. 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. In this view of the law the High Court was in error in creating the statement of Palvinder as the most important piece of evidence in support of the charge under s. 201, Penal Code. The learned Judges in one part of their judgment observed that strictly speaking exculpatory statements in which the prisoner denies her guilt cannot be regarded as confessions, but went on to say that such statements are often used as circumstantial evidence of guilty consciousness by showing them to be false and fabricated. With great respect we have not been able to follow the meaning of these observations and the learned Counsel appearing at the Bar for the prosecution was unable to explain what these words exactly indicated. The statement not being a confession and being of an exculpatory nature in which the guilt had been denied by the prisoner, it could not be used as evidence in the case to prove her guilt.
17. Not only was the High Court in error in treating the alleged confession of Palvinder as evidence in the case but it was further in error in accepting a part of it after finding that the rest of it was false. It said that the statement that the deceased took poison by mistake should be ruled out of consideration for the simple reason that if the deceased had taken poison by mistake the conduct of the parties would have been completely different, and that should would have then run to his side and raised a hue and cry and would have sent immediately for medical aid, that it was incredible that if the deceased had taken poison by mistake, his wife would have stood idly by and allowed him to die. The Court thus accepted the inculpatory part of that statement and rejected the exculpatory part. In doing so it contravened the well-accepted rule regarding the use of confession and admission that this must either be accepted as a whole or rejected as a whole and that the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. Reference in this connection may be made to the observations of the Full Bench of the Allahabad High Court in Emperor v. Balmakund 52 ALL. 1011 (F.B.) with which observations we fully concur. The confession there comprised of two elements, (a) an account of how the accused killed the women, and (b) an account of his reasons for doing so, the former element being inculpatory and the latter exculpatory and the question referred to the Full Bench was : Can the Court, if it is of opinion that the inculpatory part commands belief and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter ? The answer to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. The alleged confession of Palvinder is wholly of an exculpatory nature and does not admit the commission of any crime whatsoever. The suspicions circumstances from which an inference of guilt would be drawn were contained in that part of the dead body. This part of the statement could not be used as evidence by holding that the first part which was of an exculpatory character was false when there was no evidence in prove that it was so, and the only material on which it could be so held was the conduct mentioned in the latter part of the same statement and stated to be inconsistent with the earlier part of the evidence.
18. The result therefore is that no use can be made of the statement made by Palvinder and contained in the alleged confession and which the High Court thought was the most important piece of evidence in the case to prove that the death of Jaspal was caused by poisoning or as a result of an offence having been committed. Once this confession is excluded altogether, there remains no evidence for holding that Jaspal died as a result of the administration of potassium cyanide.
61. Again in the Case of Aghnoo Nages v. State of Bihar , the Apex Court held that Section 25 of the Evidence Act is one of the provisions of law dealing with the confession made by an accused. The law relating to confession to confessions is to be found generally in Sections 162 and 164 of the Code of Criminal Procedure, 1898. Section 17 to 31 of the Evidence Act are to be found under the heading "Admission". Confession is a species of admission, and is dealt with in Sections 24 to 30. Aconfession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. A confession is made to a police officer under any circumstances is not admissible to evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. A confession made by an accused to a police officer or while he is in custody of a police officer are not to be trusted and should not be used in evidence against him. They are based upon grounds of public policy and the fullest effect should be given to them. At paragraphs 11 and 12 of the judgment, the Apex Court held as follows:
11. The Indian Evidence Act does not define "confession". For a long time, the Courts in India adopted the definition of "confession" given in Article 22 of Stephen's Direst of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayanaswamy v. Emperor , Lord Atkin observed:
No statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate sub stantially all the facts which constitute the of fence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession.
These observations received the approval of this Court in Palvinder Kaur v. State of Punjab (1), . In State of UP v. Deoman Upadhaya , Shah J, referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime.
12. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which 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. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only See Hanumant Govind v. State of MP . The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.
62. The corroborative value reflected in a confession of an accused was dealt with by the Apex Court in the case of Shankar @ Gauri Shankar and Ors. v. State of T.N. , wherein the Apex Court held that the confession is a form of admission consisting of direct acknowledgement of guilt in a criminal charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact charged or some essential part of it and a statement that contains a self-exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that means nor caused by inducement, threat or promise. Whether a confession is voluntary or not is essentially a question of fact. The judicial confessions are those which are made before a Magistrate or in court in due course of legal proceedings and when such a confession is retracted, the courts have held that apart from the statement being voluntary it should be true and should receive sufficient corroboration in material particulars by independent evidence. However, it is sufficient if there is general corroboration of the important incidents, just like in the case of an approver's evidence and it is not necessary that corroborative evidence itself should be sufficient for conviction.
Applying the above test, we find that Ext-21 and 22 are all self-exculpatory statements which were retracted later on. There is no independent corroboration of those statements. Accordingly, we hold that would not be safe to rely on those statements to form one of the basis of conviction of the accused appellants.
63. Now, let us see whether the identification of the accused Santosh Boro, on the basis of TIP, heavily relied on by the prosecution can be accepted in law. The TIP was held on 26.2.99 at about 11.30 AM in the District Jail, Shillong. PW- 28 conducted the said TIP. PW- 28 has deposed that one of the accused, namely Dipak Pator identified the accused Santosh Boro during the TIP. The accused Santosh Boro was mixed up with thirteen other accused persons and Dipak Pator pointed out the suspect from amongst them. He proved the TIP report as Ext- 32. In his cross-examination he stated not to have remembered from where Dipak Pator was brought there to identify the accused Santosh Boro, and some police personnel brought the suspect Santosh Boro from the police lock up. The IP was conducted by asking question to the identifier Dipak Pator a co-accused as to whether he was with him at the time of commission of the crime, to which he replied in positive. In fact, from Ext- 32, it cannot be said that the identifier co-accused Dipak Pator identified the accused Sontosh Boro independently pointing out to him. He simply answered the question that was asked to him about the participation of the accused Santosh Boro. In his answer to the question No. 124 put under Section 313, CrPC, regarding such identification and Santosh Boro replied to that effect that the police officer asked him to sit in a jeep and Dipak Pator was called upon from jail to spot him and thereafter the TIP was held. In answer to the question No. 137, he further replied that he was shown to Dipak Pator while he was sitting in the police jeep and Dipak Pator was asked to identify him in the TIP and Dipak Pator identified him accordingly. From the statements of PW- 28 as well as Ext- 32, it is abundantly clear that that the prosecution case is that it is the accused Dipak Pator who allegedly identified the accused Santosh Boro.
64. ATIP is considered as relevant fact which is necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant under Section 9 of the Indian Evidence Act. However, an identification done by TIP is not a substantive piece of evidence.
65. In Munshi Singh Gautam (dead) and Ors. v. State of M.P. , the Apex Court at paragraphs-16, 17, 19 and 22, dealing with the nature of such type of evidence discussed as follows:
16. As was observed by this Court in Matru v. State of U.P. identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (See Santokh Singh v. Izhar Hussain). The necessity of holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as son as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the rest identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to rest and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn, Vaikuntam Chandrappa v. State of AP, Budhsen v. State of UP and Rameshwar Singh v. State of J&K).
19. In Harbajan Singh v. State of J&K though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in court corroborated by other circumstantial evicence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16.12.1971 their rifles smelt of fresh gun power and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held:
In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the investigating officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villagers only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant.
22. In Suresh Chandra Bahri v. State of Bihar this Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes as assurance that the investigation is proceeding on the right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed:
But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different points of time and places which fact may away with the necessity of TI parade.
66. The Apex Court in the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru held as follows:
227. It is well settled that conducting the test identification parade relates to the stage of investigation and the omission to conduct the same will not always affect the credibility of the witness who identifies the accused in the court. In Malkhansingh v. State of M.P., BP Singh, J, speaking for a three-Judge Bench observed thus:
16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable...
228. The earlier observation at para 10 is also important.
10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
67. TIPs are held during the course of investigation for the purpose of enabling the witnesses to identify the persons who are concerned in the offence. The TIP has only corroborative value. For admissibility of such evidence the accused should be uninfluenced by the prosecution witnesses before the TIP and the TIP should be held with reasonable promptitude after the occurrence. (Ref: Hari Nath v. State of U.P. , Boliahir v. State of Bihar (1984) Suppl. SCC 65, Hashid v. State of Bihar and Rameswar Singh v. State of J&K . If an accused is known to the identifying witness, the very solemnity of such identification no longer exists and it losses its evidentiary value. The accused Santosh Boro along with Nazrul Islam and Ahmed Ali were arrested at Guwahati and remanded to the police custody till 4.12.98. The accused Dipak Pator was arrested on 27.1.98 and the TIP was held on 26.2.98. At that time, the accused Santosh Boro was under police custody. Hence the possibility of mixing of the identifier with the accused cannot at all be ruled out. That apart, since it is alleged that both the identifier and the accused participated in the alleged crime, it cannot be said that the identifier did not know the accused from before when both of them participated in the commission of the crime. The most disturbing factor of the TIP relied on by the prosecution to identify the accused Santosh Boro as one of the participants in the alleged crime is that the identifier Dipak Pator himself is a co-accused and Dipak Pator could not be produced as prosecution witness so as to provide necessary opportunity to the accused Santosh Boro to test his veracity regarding the identification. Ordinarily, the person who suppose to have identify the assailant in the TIP is the most vital witness to prove the fact with regard to 26.2.98. the identification and keeping him away, if such fact is left to evidence and proved by the officer who held the identification parade, the defense would be deprived of an opportunity of cross-examining the identity at least on that to establish that the witness had an opportunity to see and recognize the accused before they were brought for identification (Ref: C.P. Farnandez v. Union Territory ). In view of the non-compliance of the provisions of law regarding holding of the TIP, we are unable to put any reliance on Ext-32 by which the prosecution sought to identify the accused Santosh Boro as one of the participants in the commission of the crime.
68. Apart from Ext- 32, the TIP, the prosecution has relied the evidence of PW-10 to identify the accused Santosh Boro, as one of the participants in commission of the crime. PW-10 in his deposition state, inter alia, that while he was coming to the place of occurrence on receipt of the telephone call from his younger brother about the occurrence, on the way, he noticed that two persons carrying weapons walking on foot very near to the place of occurrence. By stopping his vehicle he asked them to stop and went towards them, but his relatives sitting in the car prevented him from doing so and therefore, he returned to the car. He further stated that as he saw the faces of those two persons, he could remember that the persons were in the dock on the date of giving evidence who were accused Nazrul Islam and Santosh Boro. The learned Trial Judge did not accept the statement of PW-10 that he could identify the accused Nazrul Islam and accordingly, he was acquitted. The learned PP, Meghalaya, relying on the statement of PW-10 and supporting the findings of the learned trial Judge has argued that since the name of the accused Santosh Boro also finds place in the confessional statement of Dipak Pator and taking note of these two factors, the prosecution could clearly prove the identity of the accused Santosh Boro, submits that apart from the statements of PW- 10 the accused Santosh Boro has also been implicated by Deepak Pator in his confessional statement and taking note of those such materials available on record it can safely be held that the prosecution has been able to prove the identification of the accused Santosh Boro in commission of the crime.
69. In our earlier discussions we have clearly held that the confessional statements was not recorded in accordance with law and it cannot be relied upon. That apart, the said statement was made by a co-accused and bis veracity could not be tested. The prosecution could not prove any other evidence to rope the accused Santosh. Apart from what has been stated above, who later on escaped from the jail. The above being the only and solitary evidence as regard the identity and participation of the accused Santosh Boro, we do not consider that it would be safe to rely on the weak and improper and sole piece of evidence of PW-10, part of which was even accepted by the trial Judge, to rope the accused Santosh Boro with the offence, more particularly, on the face of specific statements of PW-1, the informant, who was the first witness to come to the place of occurrence to the effect that she saw only two persons in the place of occurrence.
70. During the course of investigation of the case, the Investigating Officer seized one magazine of .22 gun and eight rounds of ammunitions and spectacles fitted with one glass and one piece of spectacle glass and one iron rod in presence of PW- 8 vide Ext- 9, 10 and 11. On 26.11.98, the Investigating Officer has also seized one .22 rifle without magazine from the house of one Shri BN Hazarika in presence of PW-14 vide Ext-15. On 24.11.98, the police by conducting search in the house of one Ahmed Ali at Umkediet, occupied by the accused Dipak Pator and Mihir Pator, being led by Deepak Pator, seized a fire arm without chamber, which appeared to be a country made revolver, vide Ext- 14, in presence of PWs-12, 13 and 17 by complying with all necessary formalities. The arms seized by the aforesaid seizure list are illegal arms, inasmuch as, no license could be shown to possess such arms by the accused persons. The seizure witnesses duly proved the aforesaid arms. On the face of such seizure and not having offered any other acceptable explanation, regarding the authority to possess such arms without having any valid license, the accused Mihir Pator, Zakir Hussai and Jyotish Kalita have been convicted under Section 25 (IA) (IB) of the Arms Act. We do not find any infirmity in the aforesaid findings of the learned trial Judge holding them guilty of illegal possession of arms without any valid license. Referring to the possession of illegal arms and the same having used in the commission of offence, it is also the case of the prosecution that the accuse Mihir Pator and Jyptish Kalita are guilty of abetment of the offence under Section 302/34, IPC.
71. In order to convict a person for abetment under Section 109, IPC, it must be established by prosecution beyond reasonable doubt that the offence is committed in consequence of inspiration in pursuance of conspiracy or aid which constitutes the abetment. Section 108, IPC, provides that a person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Abetment involves active complicity on the part of the abettor at a point of time actual commission of the offence and it is of the essence of the crime of abetment that the abettor should substantially assist the principal culprit towards the commission of the offence. In order to convict a person under Section 109, IPC, the ingredients of Section 108, IPC, should be fulfilled. In the instant case, there is no iota of evidence regarding fulfillment of the necessary ingredients of the offence of abetment. The prosecution hopelessly failed to link facts proved in the case with the offence punishable under Section 109, IPC against the accused Mihir Pator and Jyotish Kalita. Accordingly, we do not find that the conviction of the accused Mihir Pator and Jyotish Kalita under Section 109/34, IPC, is justified although they are found to be guilty of offence under Section 25(IA) (IB) of the Arms Act.
72. It is to be noted herein that PW- 1 who being the daughter of one of the victims and wife of one of the victims is the first person to come to the place of occurrence. PW-1 was first examined on 28.9.99 by the learned trial Court and was re-examined on 19.12.00. She was further recalled and examined on 24.5.2002, when she stated that in the assault there could have been some more persons in the compound which is a big one and some one might have been hiding. Right from the FIR, Ext-1 and her deposition in the Court in the first and second phase PW-1 maintained that there were only two persons who took part in the crime. But in her statement on 24.5.2002 she stated that there could have been some more persons in the assault in the compound. She also could not identify the assailants.
73. In the instant case, as narrated above, there is no direct evidence against the accused persons regarding commission of the offence. As indicated above, PW-1 was the first person to come to the place of occurrence immediately after the occurrence and was residing in the same house. She deposed about the involvement of two persons in the crime, but she could not recognize them. The occurrence of the incident is an admitted fact laving behind to prove as to whether the accused persons are involved in the crime. Upon careful scrutiny of the evidence of PWs except Investigating Officer, we find that none of the witnesses have implicated involvement of Zakir in commission of the crime. The solitary circumstance that appeared against him is that recovery of arms from the house of Shri B N Hazarika vide Ext-14. There having no eye witness to the occurrence, the prosecution in order to convict the accused persons has to rely on the circumstantial evidence. The law regarding the circumstantial evidence came to be considered by the Apex Court in a catena of cases.
74. In order to convict an accused person when a case rests on entirely on the circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established. Secondly, these circumstances should be of definite tendency unerringly points towards the guilt. Thirdly, the circumstances so relied on cumulatively should form a chain and that there is no escape from the conclusion of all human probability that the offence was committed by the accused persons and none else. That is to say, the circumstances should be incapable of any reasonable hypothesis other than the guilt of an accused (Ref: Chandmal v. Rajasthan ).
75. The circumstances in the first place have to be established by the prosecution by clear and cogent evidence and those circumstances must not be inconsistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered that it becomes possible to understand and appreciate their true affect.( Ref: Naseem Ahmed v. Delhi Administration ).
76. In considering the cases, the conviction can be sustained on the circumstantial evidence, the Apex Court laid down necessary test in the case of Padala Veera Reddy v. State of Andhra Pradesh . The Apex Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests--
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unearringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir v. State of Maharastra .
77. In the recent case Dhananjay Chatterjee v. State of W.B. , the Apex Court laid down law relating to circumstantial evidence as follows:
In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. Legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.
The evidence adduced by the prosecution witnesses, the basic point that needs to be considered is whether the prosecution has been able to prove the guilt of the accused persons by such chain and without having any breach in the chain. In order to prove the case the prosecution has examined doctor, expert witnesses and also relied on the confessional statements of the accused persons. As indicated above there is no dispute about the occurrence on the night of 24.11.98, as a result of which the two unfortunate victims died. During the course of investigation, the police seized fire arms which were under illegal possession of the accused Mihir Pator, Jyotish Kalita and Zakir Hussain. In spite of such recovery of arms there is a big gap to link the accused persons with the act of killing. The prosecution could not fill up that link by an impeachable (unimpeachable) evidence. There is no iota of evidence about such participation in the offence by the accused Zakir Hussain in commission of the crime falling under Section 302, IPC. The alleged confessional statement on which prosecution heavily relied, has been discarded by us. In the aforesaid circumstances, we have no hesitation to hold that the prosecution has failed to prove the guilt against the accused persons under Section 302/34,IPC, by way of circumstantial evidence.
78. As a result of the aforesaid discussions, the conviction and sentences imposed upon the accused Mihir Pator and Jyotish Kalita under Section 25(IA)(IB) of the Arms Act are maintained and they are acquitted of the charges under Section 109/34, IPC. The period of conviction of three years imposed by the learned trial Judge must have expired by now. They shall be set at liberty forthwith, if not, already done and not required in connection with any other case. The accused Santosh Boro and Zakir Hussain are acquitted of the charges under Section 302/34, IPC. They shall be released from the custody forthwith, if not required in connection with any other case.
79. The appeal is allowed to the extent indicated above.