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3. PW20, on completion of the investigation, filed a charge-sheet under Sections 148/149/302/326/307/436 IPC read with Section 34 IPC and 27(3) of the Arms Act, 1959 read with Section 34 IPC against 11 persons, including (1) Rabi Deb Barma, (2) Gandhi Deb Barma, (3) Mantu Deb Barma, (4) Sambhuram Deb Barma, (5) Budhraj Deb Barma. Charge-sheet was also filed against some other accused, who were found absconding, namely, (1) Subha Deb Barma, (2) Sandhya Deb Barma, (3) Samprai Deb Barma, (4) Falgoon Deb Barma, (5) Bijoy Deb Barma, (6) Budh Deb Barma, (7) Mangal Deb Barma, (8) Sankar Deb Barma, (9), Kaphur Deb Barma, (10) Sandhyaram Deb Barma alias Phang and (11) Ashok Deb Barma (i.e. the Appellant herein). Out of the 11 persons named in the charge-sheet, chargers were framed against five persons under Sections 326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with Section 34 IPC, which included the Appellant herein. All the above-mentioned persons pleaded not guilty and claimed to be tried.

5. The Additional Sessions Judge, West Tripura, Agartala, having found the Appellant and Gandhi Deb Barma guilty of the offences under Sections 326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with Section 34 IPC, declared both the accused guilty of the offences aforementioned and convicted them accordingly vide judgment dated 7.11.2005, on which date Gandhi Deb Barma was absent since he was absconding. Judgment was, therefore, pronounced by the Sessions Judge in the absence of the co-accused in terms of Section 353(6) CrPC. The Additional Sessions Judge then on 10.11.2005, after hearing the prosecution as well as the accused on the question of sentence, passed an order sentencing the Appellant to death on his conviction under Sections 148/149/302/326/307/436 IPC read with Section 27(3) of the Arms Act, 1959.

11. We may indicate that though the trial Court as well as the High Court have found that both Gandhi Deb Barma and the Appellant were guilty of the various offences levied against them, we are in this case concerned with the Appeal filed by Ashok Deb Barma, who has also been awarded death sentence by the trial Court, which was confirmed by the High Court. At the outset, we may point out that the High Court is right in holding that the Appellant is not guilty under Section 27(3) of the Arms Act, 1959, in view of the law declared by this Court in State of Punjab v. Dalbir Singh (2012) 3 SCC 346, wherein this Court held that Section 27(3) of the Arms Act is unconstitutional. The fact that such dastardly acts referred to earlier were committed in the Jarulbachai village in the night of 11.2.1997, is not disputed. The question that we are called upon to decide is with regard to the complicity of the accused/Appellant, who was found guilty by the trial Court as well as by the High Court. The facts would clearly indicate that, in this case, 15 persons were brutally and mercilessly killed and the houses of villagers with all household belongings and livestock were buried to ashes. PW1, an injured person, had given a detailed picture of what had happened on the fateful day and he was not cross-examined by the defence. The evidence of PW1 was also fully corroborated by PW2. PW18, the officer-in-charge of Takarajala Police Station, West Tripura, as already indicated, had visited the site since he got information at the Jarullabachai DAR Camp. At about 4.00 a.m. the next day, he had received the complaint from PW2, by the time, he had already started investigation after getting information from Jarullabachai DAR Camp and on his personal visit to the site. In other words, the police machinery had already been set in motion on the basis of the information PW18 had already got and, it was during the course of investigation, he had received the complaint from PW2. Though the complaint received from PW2 was treated as the First Information Report, the fact remains that even before that PW18 had started investigation. Consequently, written information (Ex.1) received from PW2, at best, could be a statement of PW2 made in writing to the police during the course of investigation. Of course, it can be treated as a statement of PW2 recorded under Section 161 Cr.P.C and the contents thereof could be used not as the First Information Report, but for the purpose of contradicting PW2.

25. In this case, altogether 11 persons were charge-sheeted for the offences under Sections 326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with Section 34 IPC, but charges were framed only against 5 persons under Sections 326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with Section 34 IPC. For want of evidence, three accused persons Budhrai Deb Barma, Mantu Deb Barma and Subhuram Deb Barma were acquitted on 23.4.2005 under Section 232 CrPC and only two accused persons, Appellant and Gandhi Deb Barma were called upon in terms of Section 232 CrPC to enter on their defence. Out of 11 accused, we are left with only two accused persons who were found guilty, out of whom Gandhi Deb Barma is now absconding, hence, we are concerned only with the Appellant. We will first examine whether the appellant was solely responsible for all the elements of crime.