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2004 DIGILAW 533 (GAU)

State of Manipur v. Okram Jiten Singh

2004-09-22

AFTAB H.SAIKIA, B.LAMARE

body2004
JUDGMENT A.H. Saikia, J. 1. Heard Ch. Bidyamani, CW/CW/Gau257/2004/GSD-RK/AKC/4980/2005 learned PP. Government of Manipur and Mr. A. Nilamani, learned Sr. counsel assisted by Mr. A. Bimal, learned counsel for the respondent. 2. This Criminal Appeal has been carried from the judgment and order dated 22-4-1999 passed by the learned Sessions Judge, Manipur East in Sessions Trial No. 6/1997 acquitting the respondent from the charge under Section 302, IPC. 3. The brief facts as unfolded during the trial are that on 4-11-1991 at about 8.15 p.m. the respondent, Okram Jiten Singh, working as Rifleman in 1st Bn. Manipur Rifles, (for short 'MR") assaulted the victim, late Y. Tangkhul, another Rifleman of the said 1st Bn. near the gate of Manipur Police Radio. The victim, in his Injured condition, was taken to JN Hospital and on 5-11-1991 i.e., the next day in the morning at about 6.00 a.m. the said Yarchung Tangkhul expired. One Y. Kulabidu Singh, P.W. 13, working as a Subedar in the MR lodged the written report on 5-11-1991 at about 6.30 a.m. with the Officer-in-charge, Imphal Police Station narrating the above facts. 4. The respondent happened to visit the quarter of one Santi Kabuini alias Allu, a resident of family line of MR who happened to be the wife of one Dina Bahadur Chetri and an employee working as Orderly of one Dy. Inspector General of Police who sell meat in the quarters. In the fateful evening on 4-11-1991, the victim Tangkhul was on RP duty. In the said evening, P.W. 1, M. Joseph Tangkhul, a Sweeper of MR with one Ojit Singh who was also a Rifleman of MR came to the house of Santi Kabuini alias Allu and they were eating meat in the kitchen of said quarter. Subsequently, the respondent also came and asked some who was on RP duty, came and asked the respondent to leave the place as it was getting late. The deceased also asked other two persons i.e., P.W. 1 and Ojit Singh to leave the place. At this moment the deceased happened to quarrel with the respondent giving rise to a scuffle. P.W. 1, Joseph Tangkhul and Ojit Singh intervened and they separated the both the respondent and deceased and thereafter both of them left the place for their respective quarters when both the respondent and deceased continued with the quarrel. At this moment the deceased happened to quarrel with the respondent giving rise to a scuffle. P.W. 1, Joseph Tangkhul and Ojit Singh intervened and they separated the both the respondent and deceased and thereafter both of them left the place for their respective quarters when both the respondent and deceased continued with the quarrel. When they reached near the western side of the gate of Manipur Police Radio the respondent assaulted the dot-cased by using a heavy object like a broken brick and then the deceased fell down on the ground. 5. Mr. P.W. 5, L. Ibotombi Singh, a Constable of MR who was on sentry duty at the relevant time at. the sentry post at the main gate of Manipur Police Radio, on seeing the quarrel of two persons towards the western side of the sentry post and on hearing the sound of hitting on the dead of another person, proceed towards them after giving information to his Guard Commander, P.W. 7, Havildar PH Murti Sarma about the occurrence. Thereafter, P.W. 7 also came to the spot along with other two Constables namely, Th. Shyam Kanhai Singh, P.W. 10 and Y. Jugin Singh, P.W. 11. The P.W. 7, the Guard Commander informed the Duty Officer, P.W. 13. Y. Kulabidhu Singh the informant, who came to the spot and took away the respondent and the victim who was thereafter taken to the Unit Hospital of MR and then to J.N. Hospital, Porompat where he died. 6. On the basis of FIR lodged by P.W. 13. the Duty Officer, Y. Kulabidhu Singh the police registered a case as FIR Case No. 957 (II) 91 Imphal P.S. under Section 302, IPC against the respondent and the respondent was arrested on the same date. 7. During the course of investigation the weapon used in the offence was recovered after recording the statement of the respondent under Section 27 of the Evidence Act. 8. 7. During the course of investigation the weapon used in the offence was recovered after recording the statement of the respondent under Section 27 of the Evidence Act. 8. P.W. 12, the Doctor conducted the autopsy on the dead body of the deceased and he found the 8 (eight) external injuries on various parts of the dead body including both the hands, shoulder and head and notable among them injury No. 8 being head injury which was lacerated stitched wound 7 cm, long obliquely placed on left side fronto-temporo-parietal area 6 cm, above ear and 6 cm, above eye brow (scalp deep) and as per his opinion, the cause of death was due to head injury (Intra cranial hemorrhage) produced by blunt force being homicidal in nature. 9. On completion of the investigation of the case, the Police submitted the charge sheet against the respondent under Section 302, IPC and the respondent stood trial before the court of the session. 10. During the trial, the prosecution examined as many as 14 witnesses including the Doctor, P.W. 12 referred hereinabove. There were 20 documents and 4 material objects produced before the Court. The learned Sessions Judge framed the charge against the respondent under Section 302, IPC to which he pleads not guilty and the trial ensued. On conclusion of the trial, the respondent was acquitted. Hence this appeal against acquittal. 11. Bidayamani, learned PP appearing for the State has persuasively argued that the learned Sessions Judge committed a grave error of law as well as on facts in coming to the conclusion of acquittal of the respondent. According to her the grounds on which the learned Sessions Judge acquitted the respondent were flimsy ground and the learned Sessions Judge was not justified in rejecting the testimony of the witnesses particularly, P.W. 5, who was the main witness, though his evidence was fully corroborated with the evidence of other independent witness namely, P.W. 7, P.W. 10, P.W.11 and P.W.13 who came to the spot immediately after the incident. Moreover, the learned Judge also failed to weigh the circumstances staring at the respondent. It is also argued that the absence of strong motive is immaterial and there was no good grounds to acquit the respondent. Moreover, the learned Judge also failed to weigh the circumstances staring at the respondent. It is also argued that the absence of strong motive is immaterial and there was no good grounds to acquit the respondent. She has categorically asserted that despite the recovery of the weapons used In the evidence in terms of the statement of the respondent recorded under Section 27 of the Evidence Act, the learned Judge absolutely ignored the same. Moreso, the oral dying declaration of the deceased which was testified by P.W. 5 and P.W. 7 was totally discarded by the trial Court. Therefore non-appreciation of those ample evidences on record culminating in the impugned acquittal has resulted in a miscarriage of justice. It is contended that the impugned Judgment of acquittal suffers from perversity and infirmity and as such the same needs interference of this Court since it is a fit case for conviction. 12. To bolster up her submission on the point of dying declaration, the learned PP submission on the decision of the Apex Court rendered In Kans Raj v. State of Punjab reported in wherein it was held that the statements of the deceased relating to the cause of death of circumstances of transaction which resulted in his death must be sufficient or closely connected with the actual transaction and if it was in writing, the scribe must be produced in the Court but if it was verbal, it should be proved and examined by the person who heard the deceased making the statement. As regards the motive, reliance has been placed on the case of Ganeshlal v. State of Maharashtra reported in. In the said case, it was held that failure to prove the motive would not be fatal to the prosecution when other circumstances such as to complete the chain connecting the accused with the crime were apparent. On the point of recovery pursuant to statement under Section 27 of the Evidence Act, reliance has been placed on a decision reported in (Bodhraj) alias Bodha v. State of Jammu and Kashmir). On the question of appeal against the acquittal, she relied on a decision reported in (Narinder Singh v. State of Punjab). 13. Supporting the impugned judgment on acquittal Mr. A. Nilamani, learned Sr. On the question of appeal against the acquittal, she relied on a decision reported in (Narinder Singh v. State of Punjab). 13. Supporting the impugned judgment on acquittal Mr. A. Nilamani, learned Sr. counsel has forcefully submitted that the learned Sessions Judge while acquitting the respondent meticulously and carefully appreciated the evidence on record and such findings of acquittal have been arrived at by giving a sound reasoning. In support of such submission in favour of the acquittal, the learned Sr. counsel has placed reliance on a decision of the Apex Court reported in (Ajit Savant Majagvai v. State of Karnataka). In paragraph 16 of the said judicial pronouncement, the Hon'ble Supreme Court has laid down as many as seven principles to be taken into consideration by the High Court in entertaining the appeal against the acquittal. 14. The reliance has also been placed on a decision reported in (Harijana Thirupala v. Public Prosecutor, High Court of A.P., Hyderabad) wherein in paragraphs 11 and 12 it was held that in the administration of criminal justice an accused was presumed to be innocent unless such a presumption was rebutted by the prosecution by producing the evidence with which he was charged and if two views were possible on the evidence produced in the case, one indicating to the guilt and the other to his innocence, the view favourable to the accused was to be accepted. Though High Court in appeal had the full power to review the evidence to reach its independent conclusion, it would not interfere with the order or acquittal lightly or merely because one other view was possible because with the passing of an order of acquittal presumption of innocence in favour of the accused got reinforced and strengthened. 15. Regarding dying declaration the learned Sr. counsel has relied on a decision reported in. Laxmi (Smt.) v. Om Prakash. In the said cited case, the Apex Court in para 29 categorically ruled that one of the important tests of the reliability of the dying declaration was a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when dying declaration purported to have been made or recorded. According to the learned Sr. According to the learned Sr. counsel, the deceased while making the dying declaration, was not in a conscious state of mind and to substantiate such submission he has referred the deposition of the Doctor, P.W. 12 who has stated that on receipt of such injury (referring to head injury), the deceased might loss his consciousness immediately and he would not be able to speak properly in an ordinary course of nature. On the question of admissibility of the statement recorded under Section 27 of the Evidence Act leading to discovery of the articles like broken brick Mr. Nilamani has submitted that the recording of said statement was not at all proved by the prosecution for which the learned Sessions Judge rightly did not accept the same. 16. We have given our anxious consideration to the case in the light of the points urged by the learned counsel of the State as well as the respondent, keeping in view of the fact that we are dealing with the case of appeal against acquittal relating to the incident occurred on 4-11-1991. Whether the conclusion arrived at by the learned Sessions Judge acquitting the respondent, is so perverse and irrational, as to Justify the interference of this court, is the crucial question, 17. We have carefully perused the impugned judgment as well as the material evidence on record. It would be appropriate to re-appreciate the testimony of the relevant witnesses in order to answer the crucial question above noted raised in this Govt. appeal. 18. Shanti Kabuini alias Allu, the lady selling the meat in her house who would have been the best independent witness to prove the prosecution case adequately in whose house the quarrel started, was not examined by the prosecution which resulted in prosecution's failure to establish the chain of facts that occurred immediately before the commission of the alleged offence i.e., alleged assault by the respondent on the head of the deceased. On the other hand, the P.W. 1, P.W. 2 and P.W. 4 were declared by the prosecution to be hostile. 19. There is no eye-witness on this occurrence and therefore the entire case basically rests on circumstantial evidence for which all the circumstances have to be gathered from the evidence of the witnesses. P.W. 5 was accepted as the main witness by the prosecution. 19. There is no eye-witness on this occurrence and therefore the entire case basically rests on circumstantial evidence for which all the circumstances have to be gathered from the evidence of the witnesses. P.W. 5 was accepted as the main witness by the prosecution. In his deposition, this witness stated that while he was on sentry duty, on the relevant date, at about 8 p.m. he saw two persons quarreling and he also heard the sound of hitting on one person by another person by means of stone. Such statement failed to prove that the quarrel was between the respondent and the deceased and also it was the respondent who hit the deceased by broken brick. The version of this witness cannot be accepted as trustworthy because when he reached the spot he found one person in full uniform of Rifleman of MR was lying on the ground with bleeding injury on his head while the other person in a civil dress was standing thereon and he saw the respondent removing a sword from the belt of the injured person lying on the ground. This witness further testified that the person in civil dress who hit the MR personnel with a stone was the accused present in the check gate. It is surprising now this piece of evidence can be believed when he did not see the person who hit the injured person. He also saw only one injury on the head when medical report testified that the deceased received as many as 8 injuries on his body. It is also doubtful how this P.W. 5 could see the quarrel from the sentry post from a distance of 15 ft. from the place of occurrence when the sentry post was located within the compound of Manipur Police Radio which was surrounded by the brick wall of about 5 ft. height. That apart, it is also to be noted that the witness mainly, P.W. 5 was examined on two different dates i.e., his first examination-in-chief was recorded on 6-11-1997 and later on he was again examined on 11-12-1997 and such examination undoubtedly gives the scope of improvement in the statement. 20. We have also thoroughly scanned the deposition of P.W. 7, P.W. 10, P.W. 11 and P.W. 13 but we have failed to extract any convincing material against the respondent to rope him in under Sec. 302, IPC. 20. We have also thoroughly scanned the deposition of P.W. 7, P.W. 10, P.W. 11 and P.W. 13 but we have failed to extract any convincing material against the respondent to rope him in under Sec. 302, IPC. P.W. 7 stated that on 4-11-1991 at about 8.00 p.m. while he along with the P.W. 10 and P.W. 11 were sitting inside their guard room, they heard the alarm raised by the P.W. 5 who was then doing the sentry duty at the gate and on hearing of such alarm he along with P.W.10 and P.W. 11 rushed to the spot where they saw P.W. 5 holding his rifle in the standing position aiming to one person who was then standing in his front just to the opposite of the gate and at the relevant time, they saw another person lying on the ground near the standing person. They saw the standing person holding a sword in his right hand and scobber on his left hand and he saw the person lying on the ground was having bleeding injury on his head and he asked the accused person to put his sword in side the scobber and when the respondent put the sword inside the scobber, P.W. 10 snatched the sword from the respondent and thereafter the same was handed over to him. They arrested the respondent and took him to guard room. On the other hand the injured was taken to verandah of guard room to see the condition of the injury. He reported the occurrence to Duty Officer, P.W. 13, When he asked the injured how he got in-Jury, the injured person replied that he was assaulted by the respondent. The injured was then taken to the hospital by some MR personnel for treatment, P.W. 10 who accompanied the P.W. 7 with P.W. 11 also stated that when they came to the spot, they found P.W. 5 standing there holding his Rifle facing towards the respondent who was standing towards about 15 ft. of the said sentry post and the said man was holding the sword in his right hand. But this witness did not tell anything about dying declaration. of the said sentry post and the said man was holding the sword in his right hand. But this witness did not tell anything about dying declaration. He stated that he snatched the sword from the respondent and thereafter the accused was apprehended by them and taken to the Guard Room and he saw the bleeding injuries on the head of the injured person who was brought to the check post and they attended upon him. This witness did not ask anything to the injured person as to who has assaulted him. P.W. 11 also corroborated the testimony of P.W. 5 and P.W. 10 to the extent as noticed hereinabove. On the other hand, P.W. 13, the Duty Officer stated that when he was taking rest in his Duty Room, P.W. 8 came to his room and reported that a quarrel had taken place near Manipur Radio Police gate situated towards the western side of the Bn. along the family line. P.W. 8 further told him that the Rifleman, Tangkhul was taken to Unit Hospital for medical treatment. P.W. 13 further deposed that because of the non availability of the then C.O. he did not report the occurrence to the police thinking that it would be better to report about the matter to the police in the next early morning and thereafter he took rest in the room till next morning. He stated that at about 6.00 a.m. while he was in duty room, he was informed by the telephone received of the Bn. that the injured Rifleman Tangkhul succumbed to his injuries. Thereafter, about 6.30 p.m. he went to the Imphal Police Station for giving Ejhar about the said incident. After going through the evidence on record, we are of the view that the testimonies of these witnesses are not at all sufficient and credible to prove the prosecution case. 21. In so far as dying declaration of the deceased is concerned such oral dying declaration cannot be accepted due to the fact that on the relevant time it appears that the deceased was not in such a state of mind to give any such statement which is evident from the opinion of Doctor as already noticed above. 22. 21. In so far as dying declaration of the deceased is concerned such oral dying declaration cannot be accepted due to the fact that on the relevant time it appears that the deceased was not in such a state of mind to give any such statement which is evident from the opinion of Doctor as already noticed above. 22. In a case of circumstantial evidence, the success of prosecution will depend on the availability of complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. The evidence on record, ascribed to be circumstantial, ought to justify the inferences of the guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. The circumstances from which the conclusion of a guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be conclusive in nature and consistent only with the hypothesis of the guilt of the accused. In the case in hand, from the discreet examination of the evidence of the witnesses i.e. mainly P.W. 5, P.W. 7, P.W. 10, P.W. 11 and P.W. 13 and more particularly, P.W. 5 as noticed above, it appears that there was apparently missing link in the chain of events to prove the circumstances conclusively against the respondent. 23. Now come to the question of motive, in the instant case, there was nothing on the record to show that the respondent had any motive to commit the alleged crime, It is settled law that in a case based on circumstantial evidence, the existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by the other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of this innocence, In the instant case, we do not find anything so as to pursue us to reverse the order of acquittal. 24. 24. For the foregoing reasons, observation and discussion and having considered the proposition of law laid down in the above judicial precedents cited by the learned counsel for the parties, we accept the submission advanced on behalf of the respondent and accordingly we firmly hold that the learned Sessions Judge acquitted the respondent by passing a well reasoned judgment and order based on correct appreciation of the material evidence on record and that too without any perversity and irrationality. We are of the view that facts and circumstances of the case in hand clearly cast a serious doubt as to whether the incident was at all taken place in the manner as narrated by the P.W. 5, P.W. 7, P.W. 10 and P.W. 11 involving the respondent. 25. Considering the entire gamut of the circumstances of the case and also upon hearing learned counsel for the parties, we opine that the Govt. appellant has failed to make out a case for interference with the impugned judgment and order of acquittal. 26. In the result, this criminal appeal stands dismissed.