IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) CRIMINAL APPEAL No.48(J)/ 2004 APPELLANT [ENTITY] By advocate : Mrs RD Majumdar, Amicus Curiae VERSUS RESPONDENT
[ENTITY] By advocate : Mr [ENTITY], PP BEFORE HON'BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON'BLE MR JUSTICE B.D. AGARWAL Date of hearing : 04-01-2011 Date of judgment and order : 03-02-2011 JUDGMENT AND ORDER (MADAN B. LOKUR, CJ) This appeal is directed against the judgment and sentence dated 9-3-2004 passed by the learned Addl. Sessions Judge No.1, Tinsukia in Sessions Case No[CASE NUMBER]. In our opinion, the learned Judge ought not to have convicted the appellant for an offence under [SECTION] of the [ACT].
2. The First Information Report (FIR) was made by [ENTITY] on 16-11-1991. He stated that at about 10.30 PM on 15-11-199, he was informed by [ENTITY] that [ENTITY] (the appellant) had proceeded towards the room of [ENTITY], Sub Divisional Police Officer (SDPO) with a rifle in his hand. On receipt of this information, he ([ENTITY]) asked the appellant to descend from the door step. Instead of doing so, the appellant pointed his rifle at him. [ENTITY] then went to the rear of the room of the SDPO and requested him not to exit from the front side. While the SDPO was coming out from the rear of the room, [ENTITY] heard a gun shot followed by two more gun shots. At that time, the SDPO ran away while [ENTITY] remained holed-up inside the room (although he says in his evidence that he too ran away). Later, the officer-in-charge of the Margherita Police Station arrived at the spot and it was then discovered that PSO [ENTITY] was lying dead. According to [ENTITY], [ENTITY] died as a result of firing by the appellant.
3. Significantly, there is no eye witness to the shooting or killing of [ENTITY]. The case is based on circumstantial evidence.
4. In support of its case that [ENTITY] was killed by the appellant, the prosecution examined as many as 14 witnesses. Of these, we find that the testimony of PW-2 to PW-7 does not at all educate us regarding the incident or the subsequent events, and one of them (PW-5) also turned hostile with regard to a subsequent event. PW-14 [ENTITY], though an investigating officer, came on the scene after the investigation was complete. His role was only to collect the report from the forensic science laboratory and file the charge- sheet.
5. The evidence of PW-1 Dr BC [ENTITY] indicates that the death of [ENTITY] was caused by a bullet injury, which was homicidal in nature. He further stated that it cannot be ascertained whether the injury was caused by a pistol or revolver or rifle. The evidence of the forensic experts, that is, PW-9 [ENTITY] and PW-10 [ENTITY] indicates that three cartridges recovered from the scene of the crime were fired from a seized .303 calibre rifle bearing serial No. 12412. However, PW-10 [ENTITY] stated on oath that it could not be ascertained that the injury on the body of [ENTITY] was caused by a bullet fired from the seized rifle.
6. In other words, the medical and forensic experts' evidence tells us that [ENTITY] was killed as a result of a bullet injury, but the firearm seized by the investigation officer may not be the weapon that caused the bullet injury. The weapon that caused the injury is, therefore, not known for sure.
7. The prosecution case is really dependant on the statement of PW-8 [ENTITY], PW-11 [ENTITY], PW-12 [ENTITY] and PW-13 [ENTITY] (the Investigating Officer). It may be noted at this stage that PW-8 [ENTITY] and PW-12 [ENTITY] also had their statements recorded under [SECTION] of the [ACT].
8. We propose to first consider the statement of PW-8 [ENTITY] recorded under [SECTION] of the [ACT]. However, before we do that, it is necessary to state that the Magistrate who recorded the statement of PW-8 [ENTITY] did not enter the witness box to prove the recording of the statement. PW-8 [ENTITY] substantially reiterates in his statement under [SECTION] of the [ACT] what he said in the FIR. The only discrepancy, which is really inconsequential, is that while he says in his statement that he ran away from the scene of the incident on hearing the gunshots, he says in the FIR that he holed-up in the room of the SDPO.
9. However, in his deposition in Court, PW-8 [ENTITY] improved upon his earlier statement and the FIR. The witness padded up the evidence by stating that after the appellant fired the first gunshot, he heard [ENTITY] telling the appellant not to kill him. Thereafter, another gunshot was fired and [ENTITY] was heard saying "[ENTITY] has killed me. What will happen to my children?"
And then, a third shot was fired. Undoubtedly, there is some padding-
up and the learned Public Prosecutor sought to use this as some sort of a "dying declaration". However, in view of the obvious padding-up, we are not at all impressed by this part of the statement of PW-8 [ENTITY]. The remaining testimony of PW-8 [ENTITY] is only a reiteration of the contents of the FIR and the statement under [SECTION] of the [ACT].
10. PW-11 [ENTITY] is an officer in the Margherita Police Station. According to his testimony the appellant came to the police station carrying a rifle and some unspent bullets and confessed that he had killed [ENTITY]. The appellant also handed over the rifle and unspent bullets to him. This witness stated that the appellant reiterated his confession before the officer in charge of the police station, [ENTITY], but for some reason [ENTITY] was not called to the witness box. The confession made by the convict is not only an extra judicial confession, but it is made before a police officer. We simply cannot accept its contents, more so when the officer in charge before whom the confession was reiterated was not called to give evidence by the prosecution. We may add that in his statement recorded under [SECTION] of the [ACT], the appellant has completely denied the sequence of events narrated by PW-11 [ENTITY].
11. PW-12 [ENTITY] was the security guard who had informed PW-8 [ENTITY] (as per the FIR) that the appellant had proceeded to the room of the SDPO with a rifle in his hand. In his statement under [SECTION] of the [ACT], he gives the apparent cause of anger of the appellant. He says that in his presence, the appellant had asked the SDPO whether he (the SDPO) would grant him leave. The SDPO turned down the request. Apparently, angered by this, the appellant went to his barrack and began cleaning his rifle. PW-12 [ENTITY] told him that this could be done in the morning as well, but the appellant loaded the rifle with bullets saying that two bullets were meant for the SDPO and that the remaining three bullets were meant for him and other security guards of the SDPO. The appellant then went to the room of the SDPO while PW-12 [ENTITY] went to give information of the events to PW-8 [ENTITY] and another security guard [ENTITY]. A little later PW-12 [ENTITY] saw the appellant firing a shot in the air and so he ran away. He later heard another gunshot and continued running and returned the next morning when he saw the corpse of [ENTITY]. It is worth noting that even in the case of PW-12 [ENTITY], the Magistrate who recorded his statement did not enter the witness box to prove the statement.
12. That apart, and significantly, in his statement under [SECTION] of the [ACT], PW-12 [ENTITY] does not claim to be an eye witness to the killing of [ENTITY]. He does, however, say that the appellant went to the room of the SDPO with a loaded rifle and that he had fired a shot in the air.
13. When he entered the witness box, PW-12 [ENTITY] reiterated that he did not witness the killing of [ENTITY]. He admitted that he had given a statement under [SECTION] of the [ACT] but he was declared a hostile witness by the prosecution. In his cross examination by the prosecution, nothing was elicited from the witness except his statement recorded under [SECTION] of the [ACT] at the stage of investigations. More importantly, he admitted in his cross examination by the appellant that neither he nor the Magistrate who recorded his statement under [SECTION] of the [ACT] had read it. In fact, he (the witness) did not know what was written in his statement. Clearly, this witness is unreliable and was found by the learned Trial Judge to be evasive. In fact, no reliance was placed on his testimony and we see no reason to take a different view.
14. PW-13 [ENTITY] is the Investigating Officer and in his statement the entire sequence of events has been given quite accurately. He does admit truthfully that PW-8 [ENTITY] did not say anything to the effect that [ENTITY] had virtually given a "dying declaration" accusing the appellant. Significantly, the Investigating Officer denied the statement of PW-11 [ENTITY] that the convict had confessed to the killing of [ENTITY]. The testimony of the Investigating Officer effectively demolishes the prosecution on all material aspects, namely, the alleged killing of [ENTITY] by the appellant (as stated by PW-8 [ENTITY]) and the alleged confession given by the appellant to PW-11 [ENTITY].
15. There is no doubt that this is a case of circumstantial evidence. How the evidence is to be analyzed in such a case has been explained by the Supreme Court in several decisions. Recently, in [ENTITY] v. State of Kerala, (2010) 9 SCC 189 the Supreme Court held in paragraph 22 of the Report:
"22. In [PRECEDENT] this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15) "15. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v.
State of Maharashtra (1982) 2 SCC 351)"
16. What does the evidence on record tell us? We know from the evidence of PW-8 [ENTITY] and PW-12 [ENTITY] that an incident of shooting took place on the night of 15-11-1991 which resulted in the death of [ENTITY]. We know that there was no eye witness to the incident. We also know that a rifle was seized and according to the prosecution it was the firearm that caused the death of [ENTITY]. However, in view of the evidence of PW-10 [ENTITY], it cannot be said with any degree of certainty that the seized weapon was actually used in the killing of [ENTITY]. We also cannot say with any degree of certainty that the seized rifle belonged to or was in the possession and control of the appellant. This is because the testimony of PW-11 [ENTITY] has been found to be false in view of the evidence of the Investigating Officer PW-13 [ENTITY]. There is also nothing conclusive on record to suggest that the appellant went to the Margherita Police Station and made an extra judicial confession of the crime before PW-11 [ENTITY], as alleged.
17. In the absence of any linkage between the bullet injury and the rifle and in the absence of any evidence to link the weapon used to kill [ENTITY] with the appellant, it would be unsafe for us to conclusively accept the theory put forward by the prosecution that the death of [ENTITY] was caused by the appellant by firing a bullet from his rifle. In our opinion, although the evidence seemingly points in this direction, we find the evidence to be unreliable and two vital facts or links in the chain, that we have adverted to above, are missing. It cannot, therefore, be conclusively said that the death of [ENTITY] was caused only by the appellant and with his rifle and not by anybody else with some other firearm. Under these circumstances, it would be unsafe for us to convict the appellant on the basis of the circumstantial evidence available with us.
18. It may be that the appellant had some reason to be angry because leave was denied to him by the SDPO but that would have given him cause to vent his anger against the SDPO and not against a third person, who was not at all concerned with the grant of leave or its refusal to the appellant. The motive for killing [ENTITY] is, therefore, completely absent. While it is correct that there is no necessity for the prosecution to show any motive for a murder, but this is surely one of the factors that ought to be kept in mind while deciding the guilt or otherwise of an accused person. In [PRECEDENT] the Supreme Court observed:
"The absence of motive in a case which depended on circumstantial evidence is more favourable to the defence."
This view was cited with approval in [ENTITY].
19. As we have noted above, there are significant loop holes in linking the death of [ENTITY] with the appellant and in the absence of sufficient links, coupled with the absence of any motive, there is a reasonable doubt as to who killed [ENTITY].
20. Under the circumstances we are of the view that the conviction of [ENTITY] is liable to be set aside and we do so accordingly. [ENTITY] stands acquitted of the alleged offence of murdering [ENTITY]. The appeal is allowed.
21. For the valuable assistance rendered to us by the learned Amicus Curiae, we direct the Assam State Legal Services Authority to remunerate her with a sum of ` 5000/-.
22. The Trial Court records be sent back immediately.
JUDGE CHIEF JUSTICE [ENTITY]