Gauhati High Court
Shri Naren Deka vs The State Of Assam on 6 September, 2012
Author: A.C. Upadhyay
Bench: Chief Justice, A.C. Upadhyay
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.26(J) OF 2007
Shri Naren Deka. ... APPELLANT
-Versus-
The State of Assam. ...RESPONDENT
PRESENT HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE A.C. UPADHYAY For the appellant :Mr.T.J. Mahanta,Amicus Curiae For the Respondent : Mr. Z. Kumar, P.P.,Assam Date of hearing : 03.08.2012.
Date of Judgment : 06.09.2012
JUDGMENT AND ORDER
(A.C. Upadhyay, J)
The Additional Sessions Judge (FTC No.4), Kamrup, Guwahati convicted the accused-appellant under Section 302 IPC and accordingly sentenced him to undergo rigorous imprisonment for life and to 2 pay a fine of Rs.2,000/- in default to undergo RI for two months in Session Case No.148(K) of 2004.
2. The prosecution case in brief is that on 24.10.97 at about 9.45 P.M. in front of the Door Darshan Kendra, Guwahati, one Kalyan Sarma was shot dead by accused, arm Constable Naren Deka, posted as a security guard of the Door Darshan Kendra, Guwahati. On receipt of FIR lodged by Mrinal Talukdar, Manoj Goswami, Utpal Barpuzari, Sanjeeb Phukan, Biswajit Kalita, Gautam Baruah and Samudra Deka, a case was registered and investigation was launched. On completion of the investigation, charge sheet was submitted against the accused-appellant alleging commission of offence under Section 302 IPC read with Section 27(3) of the Arms Act.
3. Finding materials to frame charges, learned Sessions Judge framed a formal charge under Section 302 IPC read with Section 27(3) of Arms Act against the accused-appellant. On reading 3 over and explaining the charge aforesaid the accused appellant pleaded not guilty and claimed to be tried.
4. In the course of hearing, 17 witnesses were examined including the Medical Officer and the Investigating Officer. On completion of the recording of the prosecution evidence, the statement of the accused was recorded under Section 313 CrPC. The accused took the defence plea of denial and also declined to adduce evidence in defence. On conclusion of the hearing, the learned Sessions Judge, convicted the accused-appellant as aforesaid giving rise to this appeal from jail.
5. Mr. T.J. Mahanta, learned Amicus Curiae appearing on behalf of the appellant submitted that there was no eye witness to the occurrence. The accused was on duty only from 6 P.M. to 9 P.M. and not at the relevant time of occurrence. 4
6. Learned counsel for the appellant further pointed out that the empty cartridges, which were seized by the police from the place of occurrence were not fired by the service Rifle allotted to the accused appellant.
7. Learned counsel for the accused appellant submitted that the accused is entitled to be acquitted of the charges framed against him, since the prosecution failed to prove the charges against the accused beyond all reasonable doubt.
8. However, Mr. Z. Kamar, learned P.P. submitted that the prosecution has proved the charges against the accused appellant beyond all reasonable doubt and therefore, there is no scope to interfere with the finding of the trial Court.
9. In order to appreciate the arguments advanced by the learned counsel for the parties, we would like to discuss the core of the prosecution evidence, as follows -
5
10. The allegation against the accused is that he intentionally committed the murder of the deceased by using his .303 service Rifle, which is a prohibited arms, without any special authority of the Central Government.
11. PW-1, Shri Ramesh Ch. Kalita, who is shop keeper by profession deposed that he is running his Pan Shop for the last 20 to 22 years in the locality where the occurrence took place. According to PW-1 at the relevant time, the accused was working as Constable attached to Door Darshan Kendra. On 24.10.1997 at about 9.10 P.M., PW-1 was busy in his Pan Shop and the accused was also busy with his duty. Suddenly, PW-1 heard a sound of shooting. He came out from his Pan Shop and saw that a man was crying and blood was oozing from his abdomen. The man was taken to GMCH but on the way he succumbed to his injuries. The name of the deceased was Kalayan Sarma. This witness was declared hostile by the prosecution and was 6 duly cross examined. In his cross examination, he has denied to have stated facts supporting the prosecution version.
12. PW-2, Gautam Sarma is the elder brother of the deceased Kalayan. He is not an eye witness to the occurrence. He was informed by Biswajit Kalita that his younger brother Kalyan was shot dead. PW- 2 deposed that though his brother was taken to GMCH and thereafter, he was taken to Down Town Hospital but he succumbed to his injuries.
13. PW-3, Rupak Bhattacharjee is also not an eye witness to the occurrence. He went to the Down Town Hospital and saw the injuries sustained by the deceased.
14. PW-4, Pratap Talukdar, who was Constable on duty at the relevant time and deposed that on 24.10.1997, he was on duty along with Naren Deka. They were on shifting duty for 3 hours. His duty started from 9 P.M. to 12 P.M. Prior to him, 7 accused Naren Deka was doing his duty from 6 P.M. to 9 P.M. and at the time of their duty, they were armed with ammunition. At 9 P.M., Naren Deka handed over the charge to him. The accused Naren Deka said to him that he would take dinner from the shop, which was situated at the footpath. That stall was run by one Kalita and his wife. According to PW- 4, while he was checking a book he heard a sound of shooting. After ¾ minutes he heard another sound of shooting. He saw people were running hither and thither. PW-4 raised his alarm. At that time the accused was on the footpath outside the gate. He handed over his rifle to the security guard Nath and chased the accused from back side, who was on the footpath. He snatched away the rifle and took the accused inside the gate. The accused ran towards the barrack. According to PW-4, the sound of shooting was coming from rifle belonging to the accused. PW-4 did not notice as to who sustained the injury by the shooting. The police seized one .303 rifle No.1384, with rifle celling & chain and one 8 magazine with 8 rounds of live BDR ammunition and two empty cartridges. PW-4 proved the seizure of the articles aforesaid. Apparently, PW-4 followed the accused after hearing the gunshot; therefore, he could not have seen the accused firing the gun shot.
15. PW-5, Sri Deben Ch. Das deposed that on the date of occurrence, he along with Bhabesh Kalita, Pratap Talukdar, Sityen Barman and the accused Naren Deka were on duty as a security guard of T.V. Centre, Guwahati. They were doing shifting duty for 3 hours. The occurrence took place at about 9.30 P.M. At that time he was watching T.V. at T.V. Centre. Being informed by some one about the incident of firing, he came towards the gate and as nobody was present there he returned and found accused Naren Deka at the Barrack of Saityen Barman. He saw blood oozing from the body of the accused. The accused was taken to GMCH for treatment. Since there was a strike, he was taken to the MMC Hospital. PW-5 also witnessed seizure of .303 rifle No.1384 belonging to the accused. 9
16. PW-6 Banti Ram Nath has also deposed that on the date of occurrence, he was on security duty. At about 9.10 to 9.30 P.M, PW-6 came out to close the door of Door Darshan Kendra, keeping the accused on duty at the gate. While he was closing the door, he heard a sound and then he came to the gate. At that time Constable Talukdar was on the gate and the accused was standing outside the gate. Then Talukdar asked him to stay on the gate and snatched away the rifle from the hands of the accused. Later on, PW-6 came to know that somebody died outside the gate, but he could not say who died due to gunshot injuries.
17. PW-7, Sri Biswajit Kalita, PW-8, Sri Samudra Prakash Deka, PW-9, Mrinal Talukdar and PW-10, Sanjeeb Phukan were together at the time of occurrence. Suddenly they heard the sound of firing at the gate of Door Darshan Kendra and saw the police personnel with the rifle. Then they entered into the PCO and suddenly saw that Kalyan 10 Sarma fell down on the footpath with bleeding injury on his person. Kalyan Sarma was taken to the GMCH but as the strike was going on at GMCH, Kalyan Sarma was taken to Down Town Hospital but he succumbed to the injuries. PW-7,8,9 and 10 deposed that they did not see who fired the gun shot.
18. None of the eye witnesses to the incident could identify the accused as the assailant. Among the other witnesses, PW-4 only suspected that the sound of firing may have been coming from the rifle held by the accused.
19. PW-11, Sri Apurba Kr. Sarma is the Senior Scientific Officer F.S.L., Guwahati. He examined the seized arms and ammunitions and submitted his opinion which is exhibited by him as Ext-5. The opinion of PW-11 is as follows -
I) Test firing arms done through Ext-A by using 0'303 cartridges which proves that Ext-1 is a serviceable firearm.
11
ii) The firing pin impression on the test fired cartridges cover were compared with that on Ext-B2 under a comparison microscope and was found to be dissimilar. Hence it can be opined that Ext-B2 was not fired by Ext-1.
iii) Firing pin impression on Ext-B1 was compared with those on the test fired cartridge cases under a comparison microscope. No definite opinion could be given regarding whether Ext-B1 was fired by Ext-A or not due to insufficient characteristic marking on Ext-B1.
20. PW-12, Shri Madhab Kalita and PW-13, Smti. Nirala Kalita, both were declared hostile and cross examined by the prosecution.
21. PW-16, Dr. Putul Mahanta deposed that on 25.10.1997 Dr. P.C. Sarmah working as Professor and Head of the Department of Forensic Medicine GMCH carried out the post mortem 12 examination of the deceased and found the following injuries -
Injury No.1 : Entry wound of a bullet surrounded by abrasion colour having irregular and inverted margins, measuring 0.8 cm X 0.5cm. Abdominal cavity deep which is situated on right side of abdomen 9 cm above right iliac crest and 10 cm right to umbiicas. The bullet passed through the abdomen wall, peritoneum, through the large intestine and small intestine in multiple places, through the body of the lumber vertebra making a gutter fracture 3.5 cm X 8.5 cm deep and came out through the exit would present on left side of abdomen. Mesentric vessels torn (lacerated). Abdominal aorta and vein torn partially. Lower part of the right kidney contused. Abdomen cavity contains 1800 ml. clotted and liquid blood. Injuries No.2 : Bullet Exit wound with lacerated and everted margins measuring 3.5 cm X 2.5 13 cm in size - present on left side of abdomen 4 cm above and back to anterior superior illiacspine on left side and 20 cm left to midline on front of abdomen.
Injuries No.3 : Lacerated would with irregular margins 5 cm X 3 cm X bone deep present on inner aspect of left forearm 7 cm below the medial epicondyle. Underlying ulna bone on left side is having communicated fracture. One deformed bullet is recovered in between the muscles and bone. The deformed bullet size being 3.5 cm in length and 1 cm wide at flatten part of its base having 5 land marks identifiable on body with left hand side twisting initiated and hand over to the escorting constable Bhaben Borah in a sealed and labeled plastic bottle for necessary action. Wearing clothes of the deceased were handed over to the escorting constable along with the dead body after P.M. Examination with necessary advice. 14
Opinion :
Death was due to shock and haemorrhage resulting from the bullet injuries as described which were antemortem and homicidal in nature. Time since death 12 to 18 hours (Approx).
Ext-13 is the P.M. report prepared by Prof and Head of the Department of Forensic Medicine, GMCH Dr. P.C. Sarma and Ext-13(1) is his signature which I have identified. Now P.C. Sarma is not available at GMCH. He has already been retired. Now he is outside the State.
22. PW-17, Sri Harakanta Deka, who was the then O/C of Geeanagar Police Station deposed that on 24.10.1997, getting the information about the occurrence in the front gate of T.V. Centre, Guwahati, he made G.D.E. No.1078 and went there. He found some blood on the foot path and empty cartridges. He took statements of the witnesses and 15 coming to know that accused Constable Naren Deka involved in this occurrence, he went to the barrack in search of the accused and found the accused in the barrack. PW-17 recorded the statements of the witnesses under Section 161 CrPC. In his cross examination he admitted that he did not produce G.D. Entry numbering 1078 dated 24.10.1997 along with FIR. He did not collect the sample of blood from the place of occurrence.
23. Learned counsel of the defence has further submitted that PW-11 Senior Scientific Officer, F.S.L. in his opinion vide Ext-5 has stated that Ext-B2 (empty cartridges) was not fired by Ext- A .303 Rifle and no definite opinion could be given regarding whether Ext-B1 (other empty cartridges) was fired by Ext-A or not, due to insufficient characteristic marking on Ext-B1. Therefore, it cannot be said that the empty cartridges which were seized from the place of occurrence were not fired from the service Rifle of the accused. 16
24. In support of his argument, learned counsel for the appellant has referred a case law reported in Briz Paul Singh Vs. State of M.P. in 2004 SCC (Criminal) 90, wherein it is held that "then we notice that the prosecution has not bothered to clarify the report of the ballistic expert even though the same was contradictory to the oral evidence which creates a very serious doubt in our mind as to the presence of eye witnesses at the place of accident".
25. The learned Addl. P.P. has submitted that in this present case PW-1, PW-6, PW-12 and PW-13, Sri Ramesh Chandra Kalita, Banti Ram Nath, Shri Madhav Kalita and Smti. Nirala Kalita respectively have been declared hostile at the instances of the prosecution. Though these witnesses are declared hostile, there is no bar to convict the person upon their testimony if corroborated by other reliable evidences. In support of his argument it has referred a case law Bhagwan Singh Vs. the State of Haryana reported in AIR 1976 SC 202, wherein 17 it is held that the "evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence".
26. From the deposition of the above noted witnesses, it is found that at the time of occurrence, accused was outside the gate at the Door Darshan Kendra, Guwahati but nobody could ascertain with definite certainty that the accused fired from his gone. Though the weapon was seized from the possession of the accused but scientific examination of the empty case of the bullets did not reveal that the bullets were fired from the rifle seized from the possession of the accused. Neither could it be established that the slug which was found on the body of the deceased was fired from the rifle seized from the possession of the accused. There was no eye witness to the occurrence. The so-called circumstances to link up the accused for the commission of offence are not sufficient to come to definite finding.
18
27. The evidence laid by hostile witnesses is not sufficient to hold the accused guilty of the offences alleged and the decision rendered in Bhagwan Singh(Supra) would not be of any help to the prosecution.
28. When there is no eye witness to the occurrence, (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that the accused is guilty;(iii) the circumstances should be of a conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability. (Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116) 19
29. In the instant case, while it has been proved that the death of deceased is homicidal, but nobody witnessed the accused committing the crime. The facts established by the prosecution are not consistent with the hypothesis of the guilt of the accused. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.
30. After giving thoughtful consideration on the entire gamut of facts and circumstances of the case, we are of the view that the prosecution could not establish beyond all reasonable doubt that it was the accused-appellants, who had killed the victim, as alleged.
31. However, when it is seen that a gunshot was not fired from the .303 rifle held by the accused, it would be difficult to presume that the accused had committed offence where there is no eye witness to the occurrence. The circumstantial evidence do not support the view that the accused is the author of 20 the crime. Though the accused is strongly suspected for the commission of the crime, but suspicion alone is not sufficient evidence to hold the accused guilty of the charges framed against him.
32. In view of the above, considering the entire evidence on record, we are constrained to observe that it is doubtful as to whether, in fact, the offence was committed by the accused appellant as alleged by the prosecution and therefore, we hold that the prosecution could not prove the allegation, brought against the appellant beyond all reasonable doubt. Hence, appellant is entitled to be acquitted on benefit of doubt.
33. The appellant is acquitted from the charge under Section 302 IPC read with section 27 of Arms Act.
34. The appellant be set at liberty forthwith, if he is not required for further incarceration in any other case.
21
35. In the result, the appeal succeeds and stands allowed.
36. We record our appreciation of the service rendered by Mr. T.J. Mahanta, learned Amicus Curiae, in assisting this Court. Accordingly we direct that an amount of Rs.4,000/- (Rupees four thousand) only be paid to the learned Amicus Curiae by the State Legal Service Authority as remuneration.
JUDGE CHIEF JUSTICE TDR