Gauhati High Court
Debita Deoho vs State Of Arunachal Pradesh on 22 April, 2002
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. This appeal under Regulation 26 of the Assam Frontier (Administration Justices) Regulation, 1945 is directed against the judgment and order dated 29.1.1993 passed by the learned Deputy Commissioner, Lohit District, Tezu, in Sessions Case No. 4 of 1987. By the aforementioned judgment and order dated 29.1.1993 the accused appellant has been convicted under Section 304 of the IPC and sentenced to undergo rigorous imprisonment for five years.
2. The case of the prosecution in short is that on 1.11.1986 a written complaint was received from Nk Debander Sah (PW13) to the effect that the accused, on 1.11.1986 at about 22.17 hours, had fired one round from his service rifle while he was on guard duty at AIR Station, Tezu and inflicted injuries on one Constable Sarbajit Singh. On receipt of the aforesaid complaint, police registered a case under Section 307 IPC and investigated the same and arrested the accused. The injured Sarbajit Singh was hospitalised at District Hospital, Tezu. Where he succumbed to his injuries in the morning of 2.11.1986. The case registered against the accused appellant was thereafter altered to one under Section 302 IPC. The police in the course of investigation held Inquest on the dead body of Constable Sarbajit Singh and sent the dead body for Post Mortem examination. A large number of persons were examined by the Investigating Officer and statements were recorded under Section 161 CrPC. At the conclusion of the investigation, charge sheet was submitted against the accused appellant for an offence under Section 302 IPC. The case was, thereafter, committed by the learned Judicial Magistrate, First Class, Tezu to Court of the Deputy Commissioner for trial.
3. In the course of the trial as many as 14 witnesses were examined on behalf of the prosecution. The defence did not adduce any evidence. However, the accused in the course of his examination under Section 313 CrPC had taken the plea that while on guard duty in the AIR building on the date of occurrence, the deceased who was on Bicycle tried to enter into the AIR building. On being asked to stop and identify himself as there was no response, the accused had fired a shot which had led to the death in question. The learned trial court, at the conclusion of the trial, convicted the accused-appellant under Section 304 IPC and sentenced him to undergo rigorous imprisonment for a term of five years. Aggrieved, the instant appeal has been filed.
4. A brief resume of the evidence tendered by tile prosecution witnesses examined in the case may be conveniently set out at this stage.
PW 1, Dr. S.S. Saha, attended the deceased in Tezu Civil Hospital. According to this witness, the deceased was brought to the hospital with injuries one on the belly and another at the back side. This PW was deposed that the deceased was brought to the hospital at about 11 PM and he succumbed to his injuries at about 4 AM on the next day.
PW 2, Const. S.N. Singh, attached to the Tezu Police Station was a witness to the seizure made by the police, by Ext 1. By the aforesaid seizure list (Ext. 1) the wearing apparel of the deceased were seized.
PW 3, Limar Echi, a Constable attached to Tezu Police Station, had prepared the sketch map - Ext. 2.
PW 4, Dr. A.C. Dey, performed the postmortem on the dead body of the deceased. In cross-examination PW 4 has stated that the injury on the deceased was caused by a shot fired from a distance of about 20ft PW 5, Head Const. Khalil Ahmed, is a witness to the seizure made by Ext. 4. By the aforesaid seizure list (Ext. 4) the arms and ammunitions Register was seized.
PW 6, Head Const. B Basumatary, is also a witness to the aforesaid seizure made by Ext. 4.
PW 7, N.K, Tago Martin, was the in-charge of arms and ammunitions Section of the Tezu Police Station in the month of October, 1986. He is a witness to the seizure made by Seizure list (Ext. 4). This witness has deposed that rifle bearing Registration No. 87749 along with 10 cartridges was issued to the accused. PW-7 has also proved the relevant entries made in the arms and ammunition Register. He has also identified the material Ext.V, the rifle, issued to the accused.
PW 8 Const. Henkar Padu, is a witness to the seizure made by Ext. 6. By the aforesaid Ext. 6, the daily detailment register of AIR station was seized. The said register has been exhibited as Material Ext. VIII.
PW 9 Nek Singh is a material witness. This witness in his deposition has stated that on 1.11.1986 he was on duty between 8-10 O' Clock in the evening. After completion of duty, this witness, claims to have gone to the Mess for dinner. After dinner the deceased Sarbajit Singh requested him to accompany him up to AIR Station. Accordingly, both PW 9 and the deceased went to the AIR Station by Bicycle. According to this witness when they reached the gate of AIR Station, the accused lifted his service rifle and shot Sarbajit Singh and seeing the incident, this witness, has stated that he ran away from the place to the Superintendent of Police's house. PW 9 has further deposed that at the time of firing, the accused was inside the Sentry box located within the AIR Station. After the firing, the deceased fell down on the ground and the accused had also challenged him, but he had run away. According to PW 9, the accused had not given any warning or intimation before firing the rifle and that the incident took place at about 15 minutes after 10 O' Clock. PW 9 has also stated that while he was not aware of the reasons for the firing, he was aware of the altercation-between the accused and the deceased in the Mess during dinner. PW 9 has further deposed that as he was not able to meet the Superintendent of Police at his residence he came back to the place of occurrence where he met Dilip Hazarika, PW 10, who was reported to him that the accused had shot Const. Sarbajit Singh. Thereafter, the injured Sarbajit Singh was removed to hospital, where the injured succumbed to his injuries. In his cross-examination PW 9 has stated that when he had gone to the mess for dinner he found the accused having his meal. PW 9 has stated that immediately after dinner he along with the deceased Sarbajit Singh went to the AIR Station. PW 9 had given a description of the AIR Building which reveals that the gate is about 10 ft. away from the sentry post and that there were Nahar trees on both sides of the gate. PW 9 has further deposed that in the middle of the building there was one light burning and that the said light would be about 20 ft away from the gate. According to this witness, there was no light at the gate. This witness has further deposed that it is not correct that the accused was on duty from 10 PM it was not possible for the accused to take charge at AIR Station at 10 O' Clock. PW 9 had denied the suggestion that it was not possible for him to hand over the guard duty at 10 PM, go to the barrack for a change of clothes, then proceed to the Mess and have dinner and be at the gate at 10.15 PM. PW 9 had also denied the suggestion that there was no light in the sentry post near the gate to identify and recognize the person/persons at the gate from the Sentry post.
PW 10. Const. Dilip Hazarika, in his examination has deposed that at about 10 PM on the date of occurrence he handed over the charge of Sentry duty at the AIR building to the accused and proceeded to the guard room to take rest. While in the guard-room he heard a gun shut as well as crying of Const. Sarbajit Singh. Thereafter, PW 10 along with the Guard Commander rushed outside and found the deceased lying with a bullet injury in the stomach. PW 10 noticed that the accused was standing in the Sentry post with a rifle at his hand and on being asked, the accused had informed him that he had shot Sarbajit Singh with the rifle. According to PW 10, the Guard Commander asked him to fetch a Driver to remove Sarbajit Singh to hospital and after the driver had arrived, he had helped the Guard Commander to put the injured in the vehicle to remove him to the hospital. In cross-examination PW 10 has stated that he had handed over the charge of duty to the accused at about 10 PM and the incident took place at about 10.15 PM. This PW 10 had also stated in cross-examination that at the time of the occurrence there was only one light point in the middle of the building and there was no light at the gate. According to this witness, a person on Sentry duty cannot fire at a person, who does not respond to the enquiry of the Sentry guard.
PW 11, L Tsering, was serving as Officer-in-Charge of Tezu Police Station on the relevant date. He has proved the Ext. P/8, the FIR and Exi. P/7 the written complaint in Hindi.
PW 12, R.P. Singh, a Constable attached to the Tezu Police Station was a witness to the inquest held on the dead body and he had proved Ext. P/9, the Inquest report. He was also the witness of the seizure made by the seizure list, Ext. 1. He had also proved the Material Exhibits -I, II, III and IV, i.e., the items mentioned in the aforesaid Ext. 1.
PW 13 Debendar Sha, a colleague of the deceased as well as the accused in his examination has stated that the incident took place at about 10.15 PM of 1.11.1986 at AIR complex at Tezu. PW 13 was in the Guard room of the AIR complex front 10 PM onward. According to this witness at about 10.15 PM he heard a gun shot and rushed outside. He found the accused looking towards the deceased, who was lying on the ground. He had snatched the rifle and along with the ammunition and an empty cartridge from the accused and thereafter, according to PW 13, the accused went to the place where the telephone was kept, but he could not make any call as the telephone was out of order. According to PW 13, the accused told him not to worry about his fleeing away from the place of occurrence. According to PW 13, he had seen PW 9 Nek Singh running away from the scene. After arranging the driver, the injured Sarbajit Singh was shifted to hospital and after arranging his treatment there, PW 13 informed the Circle Inspector about the incident and thereafter went back to the AIR complex. Thereafter, he wrote Ext. P/7 and submitted the same to the Police Station. PW 13 has also deposed regarding the previous quarrel between the accused and the deceased in the Mess in the evening of the day of occurrence. According to this witness, there was physical assault between the accused and the deceased. PW 13 has deposed that the deceased and accused were separated by him and the PW 10 Const. Dilip Hazarika and that the accused told the deceased that the meal he is having should be enjoyed by the deceased as it is going to be his last meal. In cross-examination PW 13 has stated that the night of occurrence was a dark night and in particular that it was the Diwali night. This witness has also stated that there was no light at the gate and on both sides of the gate there were Nahar tress. According to PW 13, Const. Nek Singh (PW 9) was at duty at the D.C.'s residence. According to PW 13, PW 9 Const. Nek Singh was not present in the mess when the quarrel took place between the accused and the deceased. PW 13 has also deposed that it was not possible for a person to hand over duty at the D.C.'s residence, change his dress and come to the mess for dinner and be present at the AIR building within 15 minutes. According to PW 13, if a person approaching from outside does not respond to the call given by the Sentry, the person on Sentry duty was at liberty to fire depending upon the circumstances. This witness has also deposed that after the incident adequate provisions for lighting were made and Nahar trees were cut.
PW 14, P. Das was posted as Circle Inspector at Tezu at the relevant point of time. This witness has been examined to substantiate the various steps taken during the course of investigation including the seizures affected.
5. A scrutiny of the evidence of the prosecution witnesses narrated about would go to show that the core of prosecution case against the accused appellant can be conveniently split up as follows :
(i) The accused had takeover the guard duty at the AIR Station from PW 10 Dilip Hazarika at 10 PM;
(ii) earlier in the evening in the Mess while having dinner, the accused and deceased had an altercation;
(iii) PW 9 Const. Nek Singh was on duty at the residence of the D.C.'s till 10 O' Clock;
(iv) PW 9 and the deceased were approaching the AIR building at about 10.15 PM when the accused shot at the deceased from his service rifle; and
(v) the accused admitted shooting down the deceased to PW 10 and PW 13 and made no attempt to flee away from the place of occurrence.
6. The aforenoted aspects of the prosecution witness may he juxtaposed with the stand taken by the accused in his Section 313 statement to the effect that he had tired a person approaching the gate when his call to the said person to identify himself and stop did not yield any response and subsequently the person shot at turned out to be the deceased Const. Sarbajit Singh.
7. The culpability of the accused-appellant under Section 302 IPC is not the subject matter of the appeal inasmuch as the conviction of the learned trial court is under Section 304 IPC and no appeal has been filed by the State Government. The limited scope of the appeal is, therefore, would be to determine the correctness of the conviction of the accused-appellant under Section 304 IPC.
8. Mr. A.K. Bhattacharyya, learned senior counsel appearing on behalf of the accused-appellant has submitted that PW 9 Cont. Nek Singh is the only witness to the occurrence. According to this witness, the accused had fired at the deceased without any warning. Learned counsel has argued that the evidence of PW 9 Const. Nek Singh is full of embellishments making the evidence of the said witness unworthy of credence. According to learned counsel, PW 9 was on Guard duty till 10 PM at the D.C.'s residence as deposed by PW 13. PW 10, on the other hand, has stated that he had handed over the Guard duty of the AIR Station to the accused at 10 PM. If that is so, PW 9 could not have been an eye witness to the altercation that took place between the deceased and accused in the mess though in his evidence PW 9 claimed to have witnessed the said altercation. That apart, according to the learned counsel, PW 9 having handed over guard duty at the D.C.'s residence at 10 PM in the absence of other relevant materials which the prosecution has not brought on record, it may not be conclusively proved that PW 9 after handing over the duty at 10 PM could have gone to the barrack to change his clothes and then proceeded to the Mess for dinner and after finishing dinner had accompanied the deceased to reach the front gate of the AIR building at 10.15 PM, as claimed. All these, according to the learned counsel, makes the evidence of PW 9 highly unreliable. The endeavour of the learned senior counsel appears to be to persuade the court not to accept the evidence of PW 9 to the effect that the accused had fired the rifle without giving any warning. In other words, the attempt of the learned counsel is to persuade the court to accept the statement of the accused made under Section 313 CrPC that he had fired from his rifle after the person who was approaching the AIR gate had refused to identify himself and refused to stop in spite of the warning given by the accused. Continuing his arguments Mr. Bhattacharyya, learned sr. counsel has argued that this court should accept the version given by the accused in his 313 CrPC statement, which if accepted, would attract the general exceptions contained in Sections 76 and 79 of the Indian Penal Code.
9. I have considered the submissions advanced by the learned senior counsel Mr. Bhattacharyya. The statements of the accused under Section 313 read with prosecution evidence as unfolded by PWs 9, 10 and 13 would obviate the necessity of any scrutiny as to whether the accused had fired the rifle at the deceased. Any lacunae in the prosecution case on this aspect pales into insignificance in view of the clear statement of the accused that he had fired at the deceased from his service rifle. The only question, therefore, that needs to be determined is whether such firing was with a previous warning as claimed by the accused or no such warning was given as contended by the prosecution. The only prosecution witness on this point, i.e., whether the accused had given any warning prior to the firing is PW 9. PW 9, in the considered view of the court has resorted to some embellishments on a crucial aspect of the case, viz., he being a witness to the earlier altercation between the accused and the deceased. Embellishment on a core aspect of the case renders PW 9 somewhat unreliable and there being no corroboration of PW 9 on the point of giving of warning by the accused prior to the firing, the court feels somewhat hesitant to accept the version of PW 9. That apart, the prosecution has not brought on record certain relevant aspects of the case to enable this Court to rely on the statements of PW 9. What is the distance from the D.C.'s residence to the Mess has not been established by the prosecution to enable this court to determine as to whether the PW 9 could have been at the place of occurrence along with the deceased at 10.15 PM or whether his presence at the place of occurrence was subsequent. On the whole, in view of what has been stated above, this Court does not consider it safe to rely on the uncorroborated testimony of PW 9. That apart, what the accused had claimed, i.e., he gave a previous warning to the person approaching the AIR building and only on the failure to heed to such warning, he resorted to firing is an event which is natural and incidental to the conduct of a person employed for Sentry duty. Consequently this court is inclined to accept the defence version that the firing by the accused was resorted to only after a warning was given by the accused,
10. The next question that has to be considered is even accepting the aforesaid defence version as unfolded by the accused in his 313 statement, whether the accused would be entitled to the benefit of the general exceptions contained in Sections 76 and 79 IPC. The availability of the exceptions contained in Section 76 and 79 of IPC would always depend upon attending circumstances of a case. The belief or the justification which is the foundation for the applicability of Sections 76 and 79 must be the reasonable belief entertained by a man acting prudently and reasonably in the surrounding circumstances of a given case. In the present case, there is no material on record to establish that what was sought to be prevented by the accused by resorting to firing from his service rifle could not have been so prevented except by resorting to the act in question. The necessary facts that the accused honestly entertained the aforesaid belief which alone would exonerate the accused is totally absent in the fact and circumstances of the present case. The accused, therefore, would not be entitled to the benefit of the exceptions contained either in Section 76 or in Section 79 of the Indian Penal Code. However, the circumstances in which the action was resorted to could have a mitigating effect on the sentence to be awarded to the accused-appellant.
12. Consequently, in view of the foregoing discussions, the present appeal will stand dismissed and the conviction recorded against the accused-appellant will stand affirmed. However, having regard to the mitigating facts as mentioned above, this Court is inclined to take the view that ends of justice would be met by imposing a sentence of 3 years of Rigorous Imprisonment instead of the sentence of 5 years as awarded by the learned trial court.
13. The appeal is dismissed subject to the modification of the sentence as ordered hereinabove.