Gauhati High Court
Crl.A./168/2020 on 1 April, 2022
Author: Malasri Nandi
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/33
GAHC010103542020
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: Crl. A. 168/2020
Rakesh Brahma
S/O Late Uday Ram Brahma,
R/O Vill. Boro Bhatarmari, P.S.
Kokrajhar, Dist. Kokrajhar,
Assam..............................................................Appellant
-Versus-
1. State of Assam and Anr.
Represented by the Public Prosecutor, Gauhati High Court
2. Nwrwm Basumatary
S/O Late Sukur Singh Basumatary
R/O Vill. Sudempuri
Kokrajhar Town
P.S. Kokrajhar
Dist. Kokrajhar
Assam
Pin 78337.,..................................................Respondents
:: BEFORE ::
HONOURABLE MR. JUSTICE SUMAN SHYAM
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellant/Petitioner : Mr. B.D. Das, Senior Advocate
Page No.# 2/33
For the Respondents : Ms. B. Bhuyan, Addl. P.P., Assam
Mr. B.D. Konwar, for Respondent No.2
Date of Hearing : 11.03.2022
Date of delivery of
Judgment and Order : 01.04.2022
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Mr. B.D. Das, learned Sr. Counsel assisted by Mr. H.K. Sarma, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Addl. P.P. Assam appearing for the State and Mr. B.D. Konwar, learned Sr. Counsel assisted by Mr. H. Agarwal, learned counsel for the respondent No. 2.
2. The appellant being the sole accused in Sessions Case No. 151/2017 on the file of Sessions Judge, Bongaigaon, charged and convicted for life for the offence punishable under Section 302 IPC and to pay a fine of Rs. 10,000/- in default to undergo 6(six) months simple imprisonment and for 5 (five) years rigorous imprisonment for the offence under Section 27 of Arms Act, 1959 and to pay a fine of Rs. 5,000/- in default to undergo 2(two) months simple imprisonment, has filed this criminal appeal. All sentences were directed to run concurrently.
3. The case of the prosecution is that on 02.01.2016, the informant Nwrwm Basumatary lodged an Ejahar before the O/C Kokrajhar P.S. Stating inter-alia that on 01.01.2016 at about 8.00 P.M. a surrendered NDFB member Rakesh Brahma who lives near the surrendered NDFB Camp, Kokrajhar, primary office at Sudempuri, shot Rajan Brahma @ Daren Brahma from a close range with his registered pistol near the bunker of B.T.C. Chief, as a result of which, he died on the spot. The members of the office Page No.# 3/33 brought the dead body to the courtyard of the office. After the incident Rakesh Brahma fled away from the scene.
4. It is also the case of the prosecution that on the day of incident i.e. on 01.01.2016, New Year party was going on in the NDFB camp as well as in the house of the accused/appellant. Crackers were bursted to celebrate the New Year party. Alarmed with the bursting of crackers the accused/appellant fired three blank shots. When the informant approached the house of the accused to enquire about the firing, a quarrel took place between the informant and the accused/appellant. When the quarrel was going on, the deceased i.e. Daren Brahma @ Ranjan Brahma came to the house of the accused/appellant and asked them to stop fighting, as a result of which, the accused rebuked him and went inside his house, brought out a pistol and shot at Daren Brahma as a result of which, he died on the spot.
5. The prosecution sought to prove its case by examining 15(fifteen) witnesses and producing 11(eleven) documents and 9(nine) material objects. On the other hand, the defence examined 5(five) witnesses including the accused/appellant in support of their case. Perusal of the entire evidence shows that the prosecution has based its case mainly on the testimonies of three eye-witnesses i.e. PW-1 Nwrwm Basumatary, PW-2 Bilifang Narzary and PW-3 Kumar Narzary. PW-10, is the doctor who conducted post-mortem on the dead body of the deceased. Exhibit-5, is the P.M. report. The opinion of the doctor is that the death was due to shock and haemorrhage following bullet injury.
6. After completion of investigation, charge-sheet was submitted against the Page No.# 4/33 accused/appellant under Section 302 IPC and Section 27 of Arms Act, 1959. The Court of Addl. CJM, Kokrajhar took cognizance of the case on the basis of charge- sheet submitted by the Investigating Officer and committed the case to the Court of Sessions. The trial Court of Sessions Judge, Kokrajhar framed charges under Section 302 IPC and 27 of the Arms Act to which the accused/appellant pleaded not guilty and claimed to be tried.
7. It is pertinent to say here that in view of the order passed by this Court in Transfer Petition (Crl.) no. 14/2018 dated 23.07.2018 to transmit the case record to the Court of Sessions Judge, Bongaigaon vide order dated 07.08.2018, the Sessions Judge, Kokrajhar transferred the case record pertaining to Kokrajhar Sessions Case No. 43(k)/2018 to the court of Sessions Judge, Bongaigaon for further trial and accordingly, the subsequent trial was held in the Court of Sessions Judge, Bongaigaon.
8. During trial, learned Sessions Judge, Bongaigaon recorded the evidence of the witnesses including three eye-witnesses i.e. PW-1, PW-2 and PW-3, PW-10, Medical Officer, PW-12, Executive Magistrate, who conducted inquest on the dead body of the deceased, PW-13, Scientific Officer, who examined the seized pistol and PW-14 and 15, i.e. the Investigating Officers. After completion of trial, the trial Court recorded the statement of the accused under Section 313 Cr.P.C and the accused denied the incriminating materials put to him regarding allegation of committing murder of deceased Darendra Brahma. On completion of the Trial, the Trial Court convicted the accused/appellant under Section 302 IPC and Section 27 of Arms Act, Page No.# 5/33 1959 and awarded sentences as aforesaid. Hence, this appeal.
9. Learned Senior counsel for the appellant Mr. B.D. Das has pointed out the following contradictions/omissions/inconsistencies in the testimonies of the witnesses and contended that the case of the prosecution was doubtful and that the accused is liable to be acquitted on the following grounds:-
(i) That the presence of three eye-witnesses namely PW-1 Nwrwm Basumatary, PW-2 Bilifang Narzary and PW-3 Kumar Narzary at the place of occurrence was very much doubtful and the trial Court was in error in placing reliance on their testimony.
These witnesses are interested in the prosecution and are inimical towards the accused. Their statements are contradictory regarding place of occurrence and do not inspire confidence.
(ii) That according to P.W.-1, the incident occurred inside the house of the deceased, but from the evidence of P.W.-2 and P.W.-3, it reveals that the occurrence took place in front of the NDFB Camp and office of the PSO and Home guards, which does not tally with the site plan.
(iii) That the trial court has seriously erred in holding that the deceased Daren Brahma died in fire arm injury because there was no exit wound on the body of the deceased and the doctor also failed to recover the bullet from the body of the deceased. In the absence of an expert opinion, the trial Court was not justified to hold so on the basis of its own observation.
(iv) That the appellant has been falsely implicated in this case; there was no motive for the appellant to commit the crime and the appellant had no enmity with Page No.# 6/33 the deceased. Therefore, there was no reason for him to commit such ghastly crime.
10. Alternatively, Mr. Das has argued that even if the entire case of the prosecution is accepted, then also the case in hand is not one of murder but the same falls in the category of culpable homicide not amounting to murder. The cause of death assigned in the post-mortem report vide Exhibit-5 is due to bullet injury. But as the bullet was not recovered from the body of the deceased, it cannot be said that the deceased sustained bullet injury from the service revolver of the appellant.
11. Under such backdrop, learned Counsel for the appellant prays that the conviction of the accused/appellant be converted from that of one under Section 302 IPC to under Section 304 part II IPC. However, learned counsel for the appellant has fairly submitted that the offence under Section 27 Arms Act is proved against the accused/appellant and his prayer is that as the accused/appellant was in jail hajot for last two years, minimum punishment be imposed under the said provision of law.
In support of his submission learned counsel for the appellant has placed reliance on the following case laws:-
1. A.N. Chandra Vs. State of U.P. reported in 1990 (supp) SCC 717,
2. State of M.P. Vs. Surpa reported in (2002) 9 SCC 447,
3. Vijay Singh Vs. State of M.P. reported in 2004(4) M.P.L.J,
4. Vineet Kumar Chauhan Vs. State of Uttar Pradesh reported in (2007) 14 SCC 660,
5. Brijesh Mavi Vs. State (NCT OF DELHI) reported in (2012) 7 SCC 45,
6. Suneel Kumar Singh Vs. State of U.P. reported in (2019) SCC OnLine All 957.
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12. Per contra, learned Addl. P.P. Ms. B. Bhuyan, opposed the submissions made by the learned counsel for the appellant and argued that the appellant was named in the First Information Report. Admittedly, the firing was made at the time of occurrence by the appellant. Appellant had knowledge of the fact that by making such type of firing somebody may get injured and injury could prove fatal. There was injury to the deceased on his vital part. There were three eye-witnesses to the incident and they have fully supported the prosecution version and named only appellant in their statements who committed the crime.
13. Learned Addl. P.P. has further submitted that appellant is the sole accused in this case. Hence, there was no false implication. It is also submitted by the learned Addl. P.P. that after the incident the appellant himself went to the police station and surrendered before the police alongwith his licensed gun by which the crime was committed and which was seized by police and exhibited during trial. According to the learned Addl. P.P., the case is fully proved against the appellant and the trial Court has rightly convicted the accused/appellant. Hence, the appeal is liable to be dismissed.
14. We have gone through the judgment of learned Trial Court and perused the documents available on the record.
15. On a careful perusal of the case of the prosecution, the evidence recorded before the Trial Court, the following points arise of our consideration:-
(i) Whether the prosecution has proved beyond doubt the commission of an offence by the accused/appellant punishable under Section 302 IPC read with 27 of Page No.# 8/33 Arms Act, 1959.
(ii) Whether the trial Court committed an error sentencing the accused for an offence under Section 302 IPC.
16. Let us first discuss the evidence of three eye witnesses on which learned trial Court has convicted the accused/appellant.
17. PW-1 is Nwrwm Basumatary deposed in his evidence that the deceased Darendra Brahma was a surrendered NDFB cadre and so also was the accused Rakesh Brahma. The incident took place on 01.01.2016. They arranged a New Year party in their office. After the party, at about 5.30 P.M. they were also celebrating with the crackers/rocket bomb etc. The house of the accused is adjacent to NDFB office. The accused Rakesh Brahma fired three blank shots by his own pistol and they also heard the sound of fire shots of pistol. After hearing the sound he went to the house of the accused and enquired as to why he had fired three blank shots with his pistol as they were only celebrating a New Year party with the crackers. When he enquired about the matter, about 5/6 boys came out from his house and assaulted him with kicks and blows. Subsequently, they assaulted him very badly and even kicked on his chest and stomach etc. for which stool also came out from his anus. He was screaming and shouting for help. Thereafter, the deceased Darendra Brahma came there listening to his scream and he held him tightly and tried to restrain the accused and other boys. Thereafter, the accused immediately went inside his house and brought his pistol and directly shot the deceased Darendra Brahma on the right side below his chest. After the incident, the accused Rakesh Brahma immediately fled Page No.# 9/33 away from the place of occurrence and then his PSO came and he again threatened to kill him by showing his pistol. Somehow, he managed to escape from the scene and hid himself in a room upstairs in their office. After 10/15 minutes of the incident police arrived at the place of occurrence. But in the meantime, Darendra Brahma died and then police took his dead body. On the next day, he lodged the FIR vide Exhibit-1. He heard that on the day of the incident itself the accused Rakesh Brahma surrendered before the police.
18. PW-2 is Bilifang Narzary, who deposed in his evidence that the incident took place on 01.01.2016. At about 7/7.30 P.M. he visited the office where the PSO and home guards were staying. When he entered into his office he heard the sound of three blank fires from the house of the accused Rakesh Brahma. When he came out from the office, he saw a quarrel which took place between the accused Rakesh Brahma and Nwrwm Basumatary. Then the deceased Darendra Brahma came and tried to stop the accused from assaulting the informant. The accused Rakesh Brahma abused him and told that who was he to stop him and then he immediately shot fire on the deceased. He (P.W.-2) was present at that time. The deceased Darendra Brahma fell on the ground and immediately they brought him to their office and called an ambulance. By that time Darendra Brahma died and then they informed the police and thereafter police came and took the dead body of the deceased.
19. PW-2 further stated that he also collected one empty cartridge from the place of occurrence and handed it over to the police. He also accompanied the police to the police station. One Kumar Narzary also accompanied him to the police station.
Page No.# 10/33 Police seized the empty cartridge and he put his signature on the seizure list. This witness also identified the seized article in the Court vide Material Exhibit-1.
20. In his cross-examination P.W.2 replied that the incident took place at Sudempuri, in front of the residence of PSO and Home-guards and the office of surrendered NDFB. The office of the surrendered NDFB and the residence of PSO and Home-guards are adjacent. He collected the empty cartridge in front of surrendered NDFB office and the residence of Home-guards where the dead body was lying. Initially, the fight took place between the accused Rakesh Brahma and Nwrwm Basumatary and no other persons participated in that quarrel.
21. PW-3 is Kumar Narzary. His deposition also reveals that the incident took place in the year 2016. On the day of the incident, they were enjoying a party in the residence of the BTC Chief, Hagrama Mahilary. At that time the informant Nwrwm Basumatary asked Bilifang to come by informing that the situation was bad and accordingly he also came with Bilifang Narzary. When they came out from the residence of PSO & Home-guards, they saw quarrel between the accused Rakesh Brahma and the informant Nwrwm Basumatary. There were also some other persons. They also saw the deceased Darendra Brahma along with Nwrwm Basumatary. They tried to stop the quarrel. He saw the accused Rakesh Brahma shot at the deceased and the accused Rakesh Brahma immediately fled away from the place of occurrence. Bilifang Narzary tried to hold the deceased Darendra Brahma after he sustained injury and then kept the body of Darendra Brahma on the ground. After some time Darendra Brahma died.
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22. In his cross-examination, PW-3 replied that on the day of incident, when they were enjoying a party, Nwrwm Basumatary over phone informed Bilifang Narzary that a quarrel took place with Rakesh Brahma and called them for help. At that time, Bilifang Narzary was also enjoying party and he accordingly, came out from the residence of Hagrama Mahilary. This witness also proved material Exhibit-1, empty cartridge, which was produced in the Court during trial.
23. Though PW-1, PW-2 and PW-3 were cross-examined by learned defence counsel at full length, nothing has been come out from the evidence of PW-1, PW-2 and PW-3 so as to discredit their evidence.
24. Other witnesses i.e. PW-4 Swijen Muchahary, PW-5 Mohilal Narzary, PW-6 Saranjay Basumatary, PW-7 Mijing Daimary, PW-8 Astom Brahma and PW-9 Rajani Kt. Narzary, though were not present when the incident occurred but they supported the case of the prosecution by stating that they immediately came to the place of occurrence on hearing the sound of gunshot.
25. According to PW-4, on 01.01.2016 at about 8-9 P.M., the incident occurred. At that time, he was in his quarter/NDFB camp. After hearing halla he came out from the camp and saw the dead body of 'Kana', whose actual name he had forgotten. The dead body was lying in front of the gate of their camp. He along with one Nabin @ Gola carried the dead body to the veranda of their camp and police took the dead body for post-mortem examination.
26. In his cross-examination, PW-4 Dwijen Muchahary replied that he did not know if deceased Darendra Brahma died while they carried him to the veranda. He had Page No.# 12/33 not noticed whether blood was oozing out from the nose and mouth of the deceased.
27. PW-5 Mohilal Narzary deposed in his evidence that the incident occurred in the month of January, 2016 at night. On that night when he was at Kasugaon, he was informed from the surrendered N.D.F.B camp that Darendra Brahma was murdered by Rakesh Brahma. On the next day morning, at about 9.30 A.M. he came to their office but as the dead body had already been taken to the police station he went to the Thana. In the police station, the police had shown him the licensed pistol of Rakesh Brahma with two numbers of magazines, three empty cartridges, one arms licence affixing the photograph of Rakesh Brahma and some live cartridges. Police seized those articles and he put his signature on the seizure list. This witness also proved and identified those seized articles in the Court during trial vide material Exhibit-2 to 8 but, subsequently, in his cross-examination PW-5 replied that at the time of seizing of articles he was not present. He did not know how the seized articles came to the police station but police showed him the articles and took his signature.
28. PW-6 Saranjay Basumatary also deposed in the same tune that when he visited the police station on the day of incident, police seized one arms licence having the photograph of Rakesh Brahma, one pistol, two magazines, three fired cartridges and some live cartridges from Rakesh Brahma vide Exhibit-3, seizure list, wherein, he had put his signature. This witness has also identified seized articles produced before the Court during trial vide material Exhibit-2 to 8. PW-6 replied in his cross-examination that material exhibits were not seized in presence of him but the Page No.# 13/33 same were laid on the table.
29. According to P.W. 8 and 9, they had heard that Rakesh Brahma killed Darendra Brahma. But P.W. 7 stated that he did not know how Darendra Brahma died.
30. P.W. 11 is Jiten Brahma, who is a police constable and relative of deceased Darendra Brahma. He deposed in his evidence that the incident took place on 01.01.2016 at NDFB Camp at Sudempuri, Kokrajhar. He was not present at the time of incident but he heard it subsequently. On the day of incident, at about 8.30-9.00 P.M. Ishan Brahma, a resident of their village informed him that Darendra was shot dead at NDFB Camp. Next day morning, at about 6.30-7.00A.M., he went to Kokrajhar P.S. to enquire about the matter. There he saw the dead body of Darendra Brahma. A Magistrate was also present there who performed the inquest on the dead body of the deceased and inquest report was prepared vide Exhibit-4 wherein he had put his signature.
31. In his cross-examination, P.W.11 replied that he had seen injury marks on the dead body of the deceased on his right hand arm and neck with blood stains around the injury sustained.
32. P.W.12, is Hrituraj Gogoi, who conducted inquest on the dead body of the deceased. He deposed in his evidence that on 02.01.2016, he was serving as Executive Magistrate at Kokrajhar and on that day, at about 12.30 P.M. in connection with Kokrajhar P.S. Case No. 9/2016, he had conducted inquest on the dead body of the deceased Darendra Brahma @ Ranjan Braham at Kokrajhar P.S. in presence of Page No.# 14/33 the witnesses.
During inquest, he noticed injury mark at right hand arm of the deceased, which seems to be caused by bullet. Blood like substances were seen on the injury mark. He had also noticed injury mark on the neck of the deceased about 4 inches. Blood like substance was also seen on the nose. The dead body was identified by Nwrwm Basumatary.
According to P.W.12, the cause of death was due to bullet injury as per the statement of the witnesses.
33. In his cross-examination, P.W.12 replied that injury was caused by bullet as the injury was circular in nature. There was burn like injury over the wound. There was no exit point on the other side of the wound. On being asked by the court, the witness replied that he had noticed injury on the right arm shoulder 4 inches below the shoulder joint.
34. P.W.13 is Madhu Sarma, Scientific Officer, who had examined the firearm handed over by the accused to the O.C, Kokrajhar police station and seized during investigation. He deposed in his evidence that on 18.04.2016, while he was working as Senior Scientific Officer, DFS, Assam, Kahilipara, he had received a parcel containing one carton box from the Director DFS in connection with Kokrajhar P.S. Case No. 09/2016, under Section 302/34 IPC read with Section 27 Arms Act, wrapped in markin cloth with seal for examination.
On 17.06.2016 he opened the parcel and found the following articles inside it -
1. One 7.65mm calibre pistol Page No.# 15/33
2. Two magazines
3. Sixty rounds of 7.65mm calibre cartridges
4. Three numbers of 7.65mm calibre fired cartridges
5. One 7.65mm calibre fired cartridge.
According to P.W.13, on examination of aforesaid arms and ammunitions, he found 7.65mm calibre pistol which was factory made and serviceable. This witness also proved the material Exhibit-2 i.e. 7.65mm calibre pistol, material Exhibit-6 and 7 two magazines, material Exhibit-9 plastic container containing 53 rounds of 7.65mm calibre cartridges, material Exhibit-3,4, and 5 fired cartridges of 7.65mm calibre pistol in the court during trial. Cross examination of P.W.-13 was declined.
35. P.W.14, Pulakesh Rabha, is the Investigating Officer in the case. He deposed in his evidence that on 01.01.2016, he was posted as second officer at Kokrajhar P.S. On that day at about 8.35 P.M., the then O/C Kokrajhar P.S. informed him over phone that there was a firing in the surrendered NDFB Camp and one person has died. On getting the information over phone, he made a G.D. entry Vide Kokrajhar P.S G.D. entry no. 21 dated 01.01.2016 and thereafter, he along with, ASI Dilbar Hussain and CRPF personnel left for the NDFB camp at Sudempuri, wherein, he met O/C Kokrajhar P.S. and other police personnel. They had sent the dead body of the deceased to RNB Civil Hospital Kokrajhar before he reached there. He recorded the statement of the witnesses. He searched the place of occurrence and found one empty cartridge on the ground in front of the house of Hagrama Mahilary wherein the incident took place. He seized the empty cartridge and prepared seizure list vide Exhibit-2 and also Page No.# 16/33 recorded the statement of seizure witnesses. Thereafter, he returned back to the police station. On reaching there he found the accused Rakesh Brahma, who had surrendered at the police station, along with his pistol. He seized the said pistol which was exhibited in the Court vide Material Exhibit-2. Rakesh Brahma has also handed over 60 rounds of live ammunition and 3(three) empty cartridges of .32 pistol. This witness also proved the Material Exhibit-9 i.e. plastic container containing 53 rounds of 7.65 mm calibre. Out of the seized 60 live cartridges, Material Exhibit-3, 4 and 5 are those 3 empty cartridges. He also seized two empty magazines of .32 pistol from Rakesh Brahma vide Material Exhibit-6 and 7. He also seized one arms license bearing no. 3/2012 from Rakesh Brahma vide Exhibit-3 seizure list and material Exhibit-8 is the said license.
36. P.W.14 also stated that on 02.01.2016, Nwrwm Basumatary lodged the written FIR which was registered Vide Kokrajhar P.S. Case No. 9/2016 under Section 302/34 IPC, read with Section 27 of the Arms Act. The O/C Kokrajhar P.S. endorsed the case to him for investigation. The dead body of Darendra Brahma was brought to the police station on the night of 01.01.2016. He interrogated the accused in the police station and accordingly arrested him.
During investigation, he sent requisition to the Executive Magistrate to perform the inquest on the dead body of Darendra Brahma at Kokrajhar P.S. On 02.01.2016 inquest was done by the Executive Magistrate. He recorded the statement of the complainant. After inquest the dead body was sent to RNB Civil Hospital, Kokrajhar for post-mortem examination. On 03.01.2016, he visited the place of occurrence, Page No.# 17/33 inspected the place and prepared the sketch-map vide Exhibit-11. Thereafter, on his transfer, he had handed over the case diary to O/C Kokrajhar police station.
37. In his cross-examination, P.W. 14 replied that he had prepared the seizure list at the spot wherein the empty cartridge was found. He did not enquire whether the witnesses were the members of the NDFB or general public. The next Investigating Officer submitted the charge-sheet.
38. P.W. 15 is another Investigating Officer Hargobinda Haloi. He deposed in his evidence that on 15.03.2016, he was posted at Kokrajhar P.S. and on that day the case diary of Kokrajhar P.S. case no. 09/2016 registered under Section 302/34 IPC read with Section 27 Arms Act was handed over to him for further investigation. On receipt of the case diary, he noticed that the earlier Investigating Officer had completed considerable part of the investigation. He sent the seized 1 pistol, 60 live, 4 empty cartridges and 2 magazines to FSL Assam, Kahilipara, for forensic examination on 18.04.2016. Later on, he had collected the FSL report. He had approached the authority for prosecution sanction to prosecute the accused Rakesh Brahma for the offence under Section 27 of the Arms Act and accordingly, obtained the same vide Exhibit-13. On completion of investigation, he had submitted charge-sheet against the accused Rakesh Brahma under Section 302 IPC read with Section 27 Arms Act, 1959 vide Exhibit-14.
The cross-examination of PW-15 was declined.
39. After going through the evidence of P.W. 11, 12, 13, 14 and 15, it reveals that P.W. -11, was not present at the time of the incident but subsequently, on receipt of Page No.# 18/33 the information about the incident, he came to Kokrajhar police station to enquire about the matter, wherein he saw the dead body of the deceased Darendra Brahma. He was present when the inquest on the dead body of the deceased was performed. He also noticed the injury marks on the person of the deceased. From the evidence of P.W. 12, it is seen that he conducted the inquest on the dead body of the deceased at Kokrajhar police station in presence of the witnesses. According to P.W. 12, he had seen injury mark on the right hand arm of the deceased which seemed to be caused by bullet. P.W. 13, Scientific Officer, who had examined the firearm as well as other ammunitions sent by the Investigating Officer for forensic examination, has confirmed that he had examined 7.65 mm calibre factory made pistol which was found serviceable. From the evidence of P.W. 14, it also discloses that he seized one pistol which was produced by the accused in the Kokrajhar police station after his surrender along with other ammunitions. As per the evidence of P.W. 15, he has sent the said seized pistol along with seized ammunitions to FSL Assam, Kahilipara, for forensic examination. In view of the above, it is apparent that the accused/appellant had fired shot with the seized pistol on the deceased resulting in his death.
40. Regarding contradictions as to the place of occurrence, it is not in dispute that the occurrence took place quite close to the house of the accused/appellant. Essential details of the occurrence appeared in the evidence of the three eye witnesses i.e. PW1, PW2 and PW3. According to the PW-1 Nwrwm Basumatary, when he went to the house of the accused/appellant to enquire about blank fire, an altercation took place between him and the appellant. He was assaulted by the Page No.# 19/33 appellant and his associates. When deceased came to the spot to intervene, he was also abused by the appellant. Subsequently, he went inside his house, brought out a pistol and shot at the deceased.
41. In fact, PW-1 nowhere stated that the incident took place inside the house of the accused. No question was put to PW-1 by the defence regarding place of occurrence. Furthermore no suggestion was given to PW-1 that he was not present when the incident took place. PW-2 and PW-3 replied in their cross-examination that incident occurred in front of the NDFB camp and residence of PSO and Home- guards. Exhibit-11 site plan also shows that the incident occurred in front of the gate of BTC chief which is adjacent to the gate of the resident of accused/appellant. From the evidence on record, it transpires that the incident occurred outside the house of the appellant and not inside his house as projected by the learned counsel for the appellant. The three eye witnesses i.e. P.W. 1, P.W.2 and P.W.3 were categorical regarding the place of occurrence and have corroborated each other while deposing before the Court. As such, there is no controversy regarding place of occurrence as pointed out by the learned counsel for the accused/appellant.
42. It is relevant to mention here that site plan prepared by P.W. 15, the Investigating Officer is not a substantive piece of evidence as held by the Supreme Court in the case of Jagdish Narain & Anr Vs. State of U.P. reported in JT 1996 (3) 89, has held as under:-
" While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive Page No.# 20/33 knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 Cr.PC. However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) Cr.PC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan, the prosecution witness had even shown the place from where the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 Cr.PC. "
43. It is true that in the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence. The law is settled that minor discrepancies on trivial matters not touching the core of the case, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. In view of the above, we are of the opinion that the discrepancies shown by the learned counsel for the appellant regarding place of occurrence is of no consequence.
44. Now coming to the argument of the learned counsel for the appellant as there was entry wound found in the body of the deceased but there was no exit Page No.# 21/33 wound found and the bullet was not recovered, it cannot be said that deceased died of firearm injury, we find that the Medical Officer, who was examined in the case as PW-10, has deposed that on 02.01.2016, he was working as SDM & HO at RNB Civil Hospital, Kokrajhar. On that day, he conducted post-mortem examination on the dead body of Darendra Brahma on police requisition and on examination, he found the following:-
EXTERNAL APPERANCE A male body with stout built. Rigor mortis present. One entry wound of bullet approximately 1.5 cm. diameter found over the right arm approximately 4 inches below the shoulder joint. Fracture of the humorous with collection of blood found. No exit wound of bullet found. Bullet could not be found out. Bruise mark approximately 3½ inches found in front side of the neck. No ligature mark found.
ABDOMEN
1. Walls - Intact. 2. Peritoneum - Intact 3. Mouth, Pharynx and Oesophagus -
Intact, Stomach and its contents _ Intact. 5. Small intestine and its contents- intact. Large intestine and its contents - Intact. 6. Liver, Spleen, Kidneys, Bladder and organs of generation external and internal found Intact.
CRANIUM AND SPINAL CANAL
1. Scalp, skull, vertebrae - Intact, 2. Membrane - Intact, 3. Brain and Spinal cord - Intact.
Page No.# 22/33 THORAX
1. Walls ribs and cartilages - Intact, 2. Pleurae - Intact, 3. Larynx and traches - Intact, 4. Right lung & Left lung - Intact, 5. Pericardium - Intact, 6. Heart- Intact, Vessels - Intact.
MUSCLES BONES AND JOINTS Injury - Nil, Disease or deformity- Nil, Fracture- Nil, Dislocation - Nil.
45. Doctor opined that the cause of death was due to shock and haemorrhage following bullet injury.
46. In his cross-examination, PW-10 replied that he did not find any exit mark of bullet on the body.
47. As regards non recovery of the bullet the medical officer has given plausible explanation to the effect that since the deceased was exceptionally fatty man, hence, he could not trace out and find out the bullet. He had not seen any exit wound or second entry wound on the body but there was possibility of piercing the chest. There was no outside expulsion; margin was smooth in case of bullet injury. In case of bullet injury, there may not be any burn mark. He tried to trace out the bullet but as there was no facility of X-ray in their hospital, hence, he could not trace out the bullet.
48. From the evidence of PW 10 it is crystal clear that though the bullet was not recovered but the deceased died of fire arm injury. Furthermore the post-mortem report has not been challenged by the defence during trial.
49. Having regard to the submissions made by the learned counsel for the parties Page No.# 23/33 on the aforesaid aspect, we do not find that there are any material discrepancies in the medical evidence as well as the ocular testimony. On the contrary, in our opinion, the medical report fully corroborates the prosecution case that the accused/ appellant had fired at the deceased Darendra Brahma from his fire arm as a result of which the deceased had sustained injury and died on the spot.
50. The conviction of the appellant has also been challenged by the learned counsel for the appellant on the ground of failure of the prosecution to prove that the accused/appellant had any motive to commit such a ghastly crime and prayed that on that score alone the accused be acquitted on benefit of doubt.
51. On the other hand, the learned additional Public prosecutor has also argued that in a case of direct evidence the motive has no relevance and it is not material.
52. It is seen that in the case in hand there are three eye witnesses who had stated about involvement of the accused in causing the death of the deceased by firearm injury. They have deposed in their evidence that they had seen the accused/ appellant Rakesh Brahma had shot at the deceased with his fire arm. On the question of motive, the following exposition of law are relevant-
In the case of Yogesh Singh v. Mahabeer Singh, reported in (2017) 11 SCC 195, it was held that -
"........ It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into significance when direct evidence establishes the crime. Therefore in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular Page No.# 24/33 testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance".
53. Reverting back to the present case, since it is a case of direct evidence, therefore, alleged motive has lost its importance and it is not very much material. It is generally difficult area for the prosecution to bring on record what was in the mind of the accused. The exposition of law of Hon'ble Apex court supports the argument of the learned additional PP that motive has no importance or relevance in case of direct evidence.
54. Now the points for consideration before this court are whether the accused/appellant has made out a case for conviction under section 304 part II IPC instead of section 302 IPC.
55. Before proceeding further it is relevant to reproduce some case laws on the point.
56. The apex court in the state of Andhra Pradesh v. Rayavarapu Punnayya and another reported in AIR 1977 SC 45 held as follows -
"21. From the above conspectus, it emerges that when a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he had caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether the act of the accused amounts to culpable homicide as defined in section 299. If the answer to this question is prima Page No.# 25/33 facie found in the affirmative the stage for considering the operation of section 300 penal code is reached. This is the stage at which the court should determine whether the facts prove by the prosecution bring the case within the ambit of any of the four clauses of "murder" contained in section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of section 304, depending, respectively, on whether the second or third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304 penal code.
22. The above are only broad guide lines and not cast iron imperatives. In most cases, there observance will facilitate the task of the court but sometimes the facts are so inter-twined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages".
57. The dictum of the apex court referred above was followed in the latest judgement in Paul v. State of Kerala reported in 2020 SCC online SC 57.
58. In so far as the alternate submission of the accused/ appellant that there was no intention to commit the murder of the deceased but the incident occurred due to a sudden provocation by the deceased is concerned, it is true that the eye witness account of P.W.1, P.W.2, and P.W.3 did not indicate any pre-meditated intention of the accused/appellant to commit the murder of the deceased. The evidence of three eye witnesses shows that on the date of incident there was an altercation Page No.# 26/33 between the informant and the accused/appellant. Fire crackers were burnt and the accused fired three blank shots. A quarrel took place between P.W-1 and the accused. When the deceased came to the spot and intervened, the accused became angry and went inside his house and brought out a fire arm and shot at the deceased as a result of which, he died on the spot. From the conduct of the deceased, it transpires that he did the act at the spur of the moment and without any pre-meditation. It is also apparent from the evidence on record that the appellant was not carrying any arms just before the incident and in the heat of the moment he had brought a pistol from his house and shot at Darendra Brahma for which he died on the spot. The above position also stands established from the evidence adduced by the defence side.
59. The accused /appellant as DW1 deposed in his evidence that the incident took place on 01.01.2016 at about 8 P.M. There was a New Year party celebration in the NDFB camp. The party started from 9 to 10 A.M and they took alcohol. He was in his house. After about 6 PM they started bursting of crackers. He had also arranged a party in his house for New Year celebration along with his family members. The bursting of crackers increased in the NDFB camp. They threw crackers towards his house. He asked the NDFB members not to do so. But they did not listen to him. Then he fired two blank shots from his licensed 7.65 mm pistol. The gate of his house, NDFB camp and that of BTC chief Hagrama Mahilary are nearby. Nwrwm Basumatary came and asked him as to why he had fired and argued with him. At that time 15 - 16 NDFB members came out from the camp and surrounded him and pushed him near his gate. Onida Daimary came forward to protect him. The surrendered NDFB Page No.# 27/33 members attacked Onida Daimary. It was dark, so he could not see who attacked whom. In that commotion Darendra Brahma fell on the ground. Apprehending danger he ran inside his house, brought his pistol and fired one blank shot in the air. Thereafter all persons dispersed from there. He informed the police about the incident and they asked him to come to the Kokrajhar P.S. and accordingly he went to Kokrajhar P.S and handed over his licensed 7.65 pistol, 2 magazines of pistol and 60 rounds of ammunitions to OC, Kokrajhar PS. Later on he heard that Darendra Brahma died.
60. Four other defence witnesses were examined in support of the case of the accused/appellant. From their depositions, it reveals that on 01.01.2016 at about 8 P.M they were enjoying a New Year party in the house of the accused/appellant. On that day from the morning 9 A.M onwards a New Year party was also celebrating in the NDFB camp which is adjacent to the boundary of the house of the accused/ appellant. They played music and had liquor. At about 6 P.M they started to burst crackers and threw some burnt crackers to the house of the accused/appellant at which the accused/appellant became annoyed and took out his licensed pistol and made two blank fires on his courtyard. Nwrwm Basumatry came out from the camp and hurled abusive language on the accused Rakesh Brahma and argued with him. 15/16 NDFB members came, surrounded Rakesh Brahma and heckled him. They went forward to prevent NDFB members and 15/16 NDFB members assaulted them for which they sustained injuries on their person. The four DWs also stated that someone attacked Darendra Brahma and he fell on the ground. At that time Rakesh Brahma ran inside his house, took out his pistol and fired one blank shot in the air from his Page No.# 28/33 verhanda. Hearing the sound the camp inmates left the place.
61. Though the appellant and the other DWs denied that the accused/appellant Rakesh Brahma killed Darendra Brahma with his fire arm but somehow they admitted the fact by stating that at the relevant time of incident the accused/appellant fired shots from his gun. It also indicates from the statement of the defence witnesses that all the DWs along with the accused were present on the spot at the relevant time of the incident.
62. In his cross examination D.W.1 i.e., the accused/appellant replied that he joined NDFB in January 2003 and after three months of training he came overground and surrendered. During training he learnt the use of fire arms and also handled AK 47, SLR, pistol and hand grenade. After the incident he went to the police station and surrendered along with his 7.65 pistol to the police.
63. D.W. 2 though stated in his deposition that due to assault towards him by NDFB members he sustained injuries but from his cross examination it discloses that he did not lodge any case in the police station due to such assault and injuries. He also did not submit any medical documents before the trial court regarding his treatment. DW3 in his cross examination admitted that he knew that Rakesh Brahma had a license of his pistol. DW4 replied in his cross examination that he had not stated before the police as to what he had deposed before the trial court. Police did not record his statement except his name and address. DW5 claimed to be the PSO of the accused/ appellant at the time of the incident. But he replied in his cross examination that he had not produced the command of his detailment of duty as PSO to Rakesh Brahma on 01.01.2016. He was carrying carbine containing 90 rounds Page No.# 29/33 of ammunitions for his duty but he did not fire a single round to protect Rakesh Brahma.
64. From the evidence of aforesaid defence witnesses as well as the above factual matrix, it can be said that whatever stated by the appellant and his witnesses regarding incident which took place on 01.01.2016 are true as supported by the three eye witnesses i.e. P.W1, P.W2 and P.W3 save and except the fact of commission of the offence by using a fire arm by the accused/appellant to cause the death of the deceased Darendra Brahma. Under such scenario we cannot accept that though the DWs along with the accused/appellant were present on the spot but they did not see the accused shoot at the deceased Darendra Brahma. For the aforesaid reasons we are of the firm view that the accused/appellant was guilty of committing the homicidal death of the deceased.
65. Now we have to consider the facts of this case on the touchstone of section 300 Exception 4 in order to find out whether this case falls under the same or not. During the course of hearing learned counsel for the accused/appellant strenuously contended before this court that the Trial court also concluded the finding to some extent that it was a case of sudden fight where the attack caused without pre- meditation. He further contended that despite holding so the trial court erroneously convicted the accused/appellant under section 302 of IPC instead of section 304 of part ll on the ground that the accused/appellant had acted in a cruel manner and has caused injury to the deceased with a fire arm resulting his death.
66. We have already discussed the evidence of the eye witnesses how the incident took place. It is evident from the material on record that the attack was not Page No.# 30/33 premeditated and pre planned. It is also proved from the material on record that on the date of incident a New Year party was going on in the NDFB camp adjacent to the house of the accused/ appellant. It was alleged that the members of NDFB started bursting of crackers and threw some burnt crackers to the house of the accused/appellant. In spite of repeated request the NDFB members did not pay heed to his request. Then the scuffle started between the accused and the informant when the accused/appellant fired blank shot in his courtyard. Then the deceased came to the spot and intervened and the accused/appellant went inside his house and brought out a firearm and shot at the deceased as a result he died on the spot. The conduct of the accused/appellant that he at once took out his pistol and shot at the deceased proves that the attack was not premeditated and it was because of the spur of the moment and without any intention to cause death. The occasion for sudden fight must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least on the onset.
67. In the present case, the accused/appellant though used a firearm but it is to be considered whether the instrument or manner of retaliation is cruel and dangerous in its nature. It is clear from the deposition of the doctor who conducted autopsy on the dead body of the deceased that the firearm injury was found on the right side shoulder joint below the chest which implies that in the spur of the moment the accused/appellant inflicted injuries using firearm not on the vital organs of the body of the deceased, but he shot the deceased which proved fatal. The injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the Page No.# 31/33 facts and circumstances. In the instant case the injuries caused were the result of firearm and it cannot be presumed that the accused had intended to cause the inflicted injuries. There was only one firearm injury caused during the occurrence which implies that the offender has acted in a fit of anger, of course the offender must not have taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was happened in the spur of the moment and we are of the opinion that the accused/appellant had not taken any undue advantage or acted in a cruel manner.
68. Thus in entirety, considering the factual scenario of the case in hand, the legal evidence on record and in the background of legal principles laid down by the Hon'ble Apex court referred above, the inevitable conclusion is that the act of the accused/appellant was not a cruel act and the accused did not take undue advantage of the deceased. The incident took place in the heat of passion and all the requirements under section 300 Exception 4 of the IPC have been satisfied. Therefore the benefit of Exception 4 under section 300 IPC is attracted to the fact situations and the accused/appellant is entitled to this benefit.
69. Thus, considering the factual background and the legal position set out above, the inevitable conclusion is that the appropriate conviction of the accused/ appellant would be under section 304 part ll IPC instead of Section 302 of IPC.
70. Therefore we hold that the accused/appellant is not guilty of murder but his wrongful act amounts to culpable homicide not amounting to murder. Thus the conviction of the appellant under section 302 IPC is not sustainable. It is accordingly modified and converted to under section 304 part II IPC.
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71. In so far as the offence under section 27 of Arms Act, 1959 is concerned, the evidence of accused/appellant is relevant to prove the offence in question. The accused/appellant, while deposing before the court, in his cross examination, admitted that though he was carrying a pistol on the date of the incident, his license had not been renewed. Vide Material Exhibit-8, the last renewal was 23.04.2013 and which was renewed up to 31.12.2015. It is seen that the incident occurred on 01.01.2016 and as per material Exhibit-8, the license was renewed up to 31.12.2015. It transpires that on the date of incident the accused/appellant had used an unlicensed fire arm. At the outset learned counsel for the appellant has also argued that there is no controversy regarding involvement of the accused under section 27 of Arms Act. Under such backdrop the conviction of the appellant under section 27 of Arms Act is maintained.
72. We have heard the learned counsel for the respective parties on the point of sentence. While sustaining the sentence awarding under section 27 of the Arms Act we feel that a sentence of ten years of rigorous imprisonment for the offence under section 304 part ll IPC shall suffice in the present case. The amount of fine as imposed by the learned Trial Court will remain as same. Both sentences shall run concurrently. Needless to say, the appellant will get the benefit of section 428 Cr.Pc. The appeal is accordingly allowed in part to the aforesaid extent.
73. Send down the LCR.
JUDGE JUDGE
Page No.# 33/33
Comparing Assistant