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2008 DIGILAW 254 (GAU)

Rambir Singh v. State of Tripura

2008-04-02

P.K.MUSAHARY, R.B.MISRA

body2008
JUDGMENT P.K. Musahary, J. 1. The 4 (four) appellants, all CRPF personnel, were convicted under Section 302 read with Section 34, IPC and under Section 323 read with Section 34, IPC and were sentenced to undergo life imprisonment with fine of Rs.5,000/- only to be paid by each of them and in default to undergo one year imprisonment for the offence of murder and also sentenced to suffer 6(six) months imprisonment for the offence of voluntarily causing hurt to the informant and also sentenced to suffer one year imprisonment for the offence of assault and for using criminal force upon the informant public servant while he was discharging official duties by judgment and order dated 20.12.2000 passed by Additional Sessions Judge, North Tripura, Dharmanagar in Sessions Trial 10 (NT/K) of 1998. Being dissatisfied with and aggrieved by the aforesaid judgment and order dated 20.12.2000 passed by the learned Additional Sessions Judge, North Tripura, the appellants preferred an appeal before this Court which was numbered as Criminal Appeal No. 03/2001 at Agartala Bench. The said appeal was heard by a Division Bench and a judgment and order was passed on 31.7.2003 allowing the said appeal and setting aside the conviction and sentence of the accused/appellants and consequently acquitting the appellants of charges framed against them. The State of Tripura being aggrieved by the judgment and order dated 31.7.2003 aforesaid preferred an appeal before the Hon'ble Supreme Court which was registered as Criminal Appeal No. 927/2004. While hearing the aforesaid criminal appeal, the Hon'ble Supreme Court found that in the judgment dated 31.7.2003, the Division Bench of this Court allowed the Criminal Appeal No. 03/2001 earlier and the reason for judgment was recorded later. This according to Apex Court, was a very unsatisfactory way of disposing of the case. In paragraph 14 of the aforesaid judgment ' and order, the Apex Court observed as follows: Thus the learned Judges of the Hon'ble High Court appears to have committed two irregularities in delivering the judgment--(i) it passed the operative portion of the judgment in the criminal appeal earlier but purported to record the reasons later and (ii) the date of judgment giving reasons is mentioned as 31.7.2003, which does not appear to be correct as in para 7 of the judgment it is mentioned that reasons will be given after 31.7.2003. Thus the impugned judgment appears to be ante dated. Thus the impugned judgment appears to be ante dated. Allowing the said appeal, the impugned judgment dated 31.7.2003 passed by this Court was set aside and the Hon'ble Supreme Court remitted the matter to this Court for fresh decision providing that any observation made in the judgment of the Apex Court shall not influence the High Court in deciding the appeal. On remand from Hon'ble Supreme Court, we have heard the Criminal Appeal No. 03/2001 afresh. 2. We have heard Mr. A.B. Choudhury, learned Senior Counsel assisted by Mr. J.P. Sharma, learned Counsel for the appellants and Mr. A. Ghosh, learned Public Prosecutor for the State of Tripura. We have also perused the records made available before us. 3. The story narrated by the prosecution in brief is that on 8.7.1996, some police personnel of Dharmanagar Police Station, led by Sub-Inspector of Police Shri Kamal Kar Choudhury, passed through the Town Hall of Dharmanagar on law and order duty. A cultural show was going on in the said Town Hall on 8.7.1996 and the police team was deployed on being approached by some organizer of the said cultural show. On being informed that some CRPF personnel without ticket had gate crashed and forcibly occupied some seats in the Hall, the S.I. of Police Shri K.K. Choudhury asked the CRPF personnel to vacate the seats. The CRPF personnel went away by abusing the said State Police in filthy language and threatening them with dire consequence. At 8.30 p.m., the CRPF personnel again came and occupied available seats/chairs without tickets and when the complainant Shri K.K. Choudhury asked them to vacate the chairs, the CRPF personnel punched upon them, as a result of which the complainant received serious injury on his left eye. Later the CRPF personnel left the Town Hall at about 9.20 p.m. and again 9/10 jawans of the CRPF came out with their arms and ammunition and started indiscriminate firing on the police party. In the said firing, Head Constable Sukumar Ghose sustained bullet injury on his person and fell on the ground. The injured constable could not be removed because of the indiscriminate firing. In the meantime, the State Fire Service vehicle tried to come to the place of occurrence to remove the injured constable but the CRPF personnel prevented them. After sometime, the injured constable succumbed to his injury at the place of occurrence. The injured constable could not be removed because of the indiscriminate firing. In the meantime, the State Fire Service vehicle tried to come to the place of occurrence to remove the injured constable but the CRPF personnel prevented them. After sometime, the injured constable succumbed to his injury at the place of occurrence. The CRPF personnel also went to the police station in search of informant S.I. of Police Shri K.K. Choudhury to kill him. An FIR was lodged with the Dharmanagar Police Station on 8.7.1996 at 23.30 hrs. by S.I. of Police Srfri K.K. Choudhury in connection with the above incident and a case being Dharmanagar P.S. Case No. 63/1996 under Sections 302/307/37, IPC was registered. In the course of investigation, the police recorded the statement of witnesses, seized alamath and also arrested the accused/appellants. On completion of investigation, the police laid charge-sheet against the accused/appellants under Sections 353 307 302 and 341 read with Section 34, IPC and also under Section 27 of the Arms Act. 4. Having found prima facie case, a charge was framed against the accused Rambir Singh under Sections 353, 302 and 307 read with Section 34, IPC. Similarly, having found prima facie case against the other three accused namely, Raj Kumar Singh, Somnath Singh and Vedamani Mishra, charges were framed against them under Sections 353, 302 and 307 read with 34, IPC. All the accused/appellants, on being read over and explained, pleaded not guilty and claimed to be tried. 5. The prosecution, in all, examined 25 witnesses including the informant PW-1. The defence examined none. 6. In order to have a clear picture of the alleged incident, let us have a close look at the sequence of event leading to alleged firing. According to the FIR, we can find that-- (i) First time at 8 p.m., 9/10 unruly CRPF personnel in civil dress entered the Town Hall and occupied some seats without tickets. On the request of the complainant, they vacated the seats and left abusing him and his party. (ii) Second time at 8.30 p.m., the CRPF jawans again came to the Town Hall and occupied some chairs by force and created disturbance and nuisance. The complainant asked them to vacate the seats and then the CRPF jawans got furious and punched upon his head and left eye causing injury to his person. The CRPF jawans then went away. (ii) Second time at 8.30 p.m., the CRPF jawans again came to the Town Hall and occupied some chairs by force and created disturbance and nuisance. The complainant asked them to vacate the seats and then the CRPF jawans got furious and punched upon his head and left eye causing injury to his person. The CRPF jawans then went away. (iii) Third time at about 21.20 hrs. (9.20 p.m.) 9/10 CRPF jawans again came from their camp with arms and ammunitions and started indiscriminate firing upon the State police party in order to kill all of them. During the firing, Head Constable Sukumar Ghose sustained bullet injury on his person. (iv) The complainant along with his colleagues Krishna Lal Debnath (PW2), Krishna Pada Bhowmik (PW3) and Satyendra Paul (PW-17) tried to shift the injured Constable Sukumar Ghose but due to indiscriminate and continuous firing, they could not evacuate him. The fire servicemen who tried to rescue the injured Constable were manhandled and prevented from proceeding to the spot at gunpoint. (v) In such situation, the complainant and his party had to flee away from the place of occurrence. (vi) Thereafter, the accused/appellants Rambir Singh, Coy Commander of CRPF along with his staff came to Dharmanager PS in search of the complainant with intention to kill him. (vii) At the intervention of the Sub-Divisional Police Officer, Dharmanagar, the CRPF personnel went back to their barrack. 7. The story projected in the FIR has been supported by P.Ws. 2, 3 and 17. PW2, Krishna Lai Debnath, PW3, Krishna Pada Bhowmik are Constable of Dharmanagar PS. and PW-17 Satyendra Paul is a Home Guard posted at Dharmanagar PS at the relevant time who accompanied the complainant PW-1 on law and order duty and visited the Town Hall on being approached by some organizers of the evening cultural function. PW-1, complainant, in his examination-in-chief affirmed the story projected by him in the FIR. In the cross-examination, he admitted that he was having a 9mm pistol. The defence tried to project a story that the complainant did not allow the CRPF personnel to witness the cultural show and ordered lathi charge upon them for which the CRPF personnel became furious and a scuffling took place and in the scuffling the complainant sustained injury. In the cross-examination, he admitted that he was having a 9mm pistol. The defence tried to project a story that the complainant did not allow the CRPF personnel to witness the cultural show and ordered lathi charge upon them for which the CRPF personnel became furious and a scuffling took place and in the scuffling the complainant sustained injury. The defence also tried to project that the complainant himself started firing from his pistol and his colleague, Sukumar Ghosh, including one CRPF personnel sustained injury from the bullet of his pistol. According to the defence, Sukumar Ghosh expired due to the bullet injury received from the pistol of the complainant. This would be evident from the cross-examination of PW-1, the relevant portion of which is quoted below: ...It is not a fact that I did not allow the CRPF personnel to witness the cultural show and or I ordered to charge lathi upon them. It is also not a fact that because of the lathi charge they became furious and there was a scuffling with the police personnel. It is also not a fact that I sustained injury over my left eye during the scuffling with the CRPF personnel. It is also not a fact that I started firing from my pistol. It is not a fact that victim Sukumar and another CRPF personnel sustained injury from the bullet of my pistol and subsequently Sukumar Ghosh expired.... 8. PW-2, who was present in the Town Hall along with the complainant, deposed that the CRPF jawans had an altercation with the informant and they left the Town Hall for their camp but they came back to the spot and started assaulting them and some of the CRPF personnel opened fire in which Havildar Sukumar Ghose sustained injury. The defence in their endeavour to project their similar story, made suggestion to this witness also that the State police resorted to lathi charge upon the CRPF personnel. PW-2 denied the said suggestion by saying that--"It is not a fact that we charged lathi upon the CRPF personnel." 9. From this evidence, it is clear that the factum of firing at Town Hall is not in dispute. The fact that Sukumar Ghosh died on 8.7.1996 and that his death was homicidal in nature are also not in dispute. PW-2 denied the said suggestion by saying that--"It is not a fact that we charged lathi upon the CRPF personnel." 9. From this evidence, it is clear that the factum of firing at Town Hall is not in dispute. The fact that Sukumar Ghosh died on 8.7.1996 and that his death was homicidal in nature are also not in dispute. There is a claim and counter claim that the deceased was killed in the firing resorted by the CRPF personnel and the complainant himself from his service pistol. 10. PW-6, Ashish Kumar Saha, PW-8 Sukumar Deb Barma, PW-9 Subhash Deb Barma and PW-13 Budhurai Deb Barma are all State Fire Service personnel posted at Dharmanagar Fire Service Station as Driver, Sub-Officer, Firemen and Leading Firemen respectively at the relevant time. PW-6 deposed that on 8.7.1996 at about 8.30 p.m., he was directed by his officer to go to Town Hall to shift an injured person to hospital and accordingly, he along with other Fire Service personnel left for the Town Hall but they could not reach the spot as the CRPF personnel, armed with sophisticated weapon restrained them on the road from going to Town Hall. The CRPF personnel stopped their vehicle and assaulted him by the butt of the SLR and one of them forcibly took away the key of the vehicle. They also directed the Fire Servicemen to get down from the vehicle and made them stand in que at gun point. They were set free after the arrival of the Sub-Divisional Police Officer, Dharmanagar. PW-8 deposed that on receipt of a call at about 9 p.m. on 8.7.1996 from the Duty Officer, Dharmanagar PS that one police personnel namely, Sukumar Ghosh had been lying in injured state in front of the Town Hall and he should be shifted to hospital, he proceeded to Town Hall with his staff and vehicle but they were restrained by the CRPF personnel armed with SLR. They were forced to get down from the vehicle at gun point and form a que by the side of the CRPF camp. The CRPF personnel assaulted the Fire Service Staff and he fled away from the said place and he took shelter in the Dharmanagar PS. P.Ws. 9 and 13, corroborating the statements of P.Ws. They were forced to get down from the vehicle at gun point and form a que by the side of the CRPF camp. The CRPF personnel assaulted the Fire Service Staff and he fled away from the said place and he took shelter in the Dharmanagar PS. P.Ws. 9 and 13, corroborating the statements of P.Ws. 6 and 8, deposed that they could not reach to the destination to shift the injured policeman to the hospital as they were forced by the CRPF personnel to get down from the vehicle at the gun point of SLR and restrained from proceeding to place of occurrence. The CRPF personnel assaulted them by SLR butt and kept them standing in que in front of the CRPF camp. One of the CRPF jawans forcibly took away the key of the Fire Service vehicle from the driver Ashish Kumar Saha (PW-6) and they were released by the CRPF at about 9.45 p.m. only. 11. The defence, in its cross-examination, could not demolish the evidence of P.Ws. 6, 8, 9 and 13 that the Fire Servicemen were forcibly stopped, they were forced to get down from the vehicle, kept standing in que at gun point, assaulted and prevented from proceeding to Town Hall to remove the injured police Havildar Sukumar Ghosh. It was testified by PW-5 Ajit Bhattacharjee, Duty Officer in the Dharmanagar PS, that he intimated Fire Servicemen to bring the injured Head Constable Sukumar Ghosh from the place of occurrence and he could notice from the road that the armed CRPF personnel prevented the Fire Service personnel from proceeding to the spot. The evidence of PW-5 also remained unshattered in the cross-examination by the defence because he denied the suggestion by saying ...It is not a fact that CRPF personnel had not restrained the Fire Servicemen over the road from going to the spot. It is also not a fact that the present accused persons had not gone to the police station and had not assaulted civilian there and also had not tried to assault us.... No suggestion was made by the defence to this witness that he did not request/ask the Fire Servicemen to go to the place of occurrence to remove the injured police Head Constable to hospital. 12. By the evidence of P.Ws. No suggestion was made by the defence to this witness that he did not request/ask the Fire Servicemen to go to the place of occurrence to remove the injured police Head Constable to hospital. 12. By the evidence of P.Ws. 6, 8, 9 and 13 the prosecution has proved the fact that the Dharmanagar police asked the local Fire Servicemen to proceed to the place of occurrence to rescue and shift the injured police Head Constable to hospital and accordingly, these PWs proceeded in their vehicle towards the place of occurrence but they were forcibly stopped and made to get down and stand in que at gun point and thereby prevented by the CRPF personnel near their camp from reaching the spot. The Fire Service personnel who were on official duty were assaulted, restrained and confined by the CRPF personnel and they could be freed only at the intervention of a higher police officer like SDPO, but in the meantime, the injured police Head Constable who was to be shifted to hospital had already succumbed to his injury. The CRPF personnel who engaged themselves in scuffling with the complainant and his party could witness that one policeman received bullet injury and was lying on the ground who needed immediate removal to hospital for treatment. By that time, the police party had already fled the scene out of fear and the entire situation was exploited by the CRPF. There is no evidence on record that the CRPF took any step for shifting the injured police man to hospital or atleast shown any interest in rendering any help to the injured person. The CRPF personnel, denying the charge of firing at policeman in one hand and refusing to shift the injured policeman to hospital and also preventing the Fire Servicemen from doing so on the other hand, have shown their most unusual conduct which is not expected from a disciplined force like CRPF of the country who have the name and fame for rendering selfless service to the entire nation. No explanation is available from the CRPF as to what prevented them from removing the seriously injured person to hospital. Such irresponsible and inhuman conduct of the CRPF smacks nothing but their mens rea connected with the charge of firing at the deceased policeman. 13. Taking us through the FIR (Exh. P/1), Mr. No explanation is available from the CRPF as to what prevented them from removing the seriously injured person to hospital. Such irresponsible and inhuman conduct of the CRPF smacks nothing but their mens rea connected with the charge of firing at the deceased policeman. 13. Taking us through the FIR (Exh. P/1), Mr. A.B. Choudhury, learned Senior Counsel, submits that there is no mention of any name or identifying description of any of the CRPF personnel, except the naming of the accused Rambir Singh, abruptly at the end of the FIR and that too, without alleging any specific overt act on his part. He also submits that except naming accused Rambir Singh through out the prosecution case, there is even no whisper of his involvement in the alleged crime and the prosecution has been trying to implicate accused Rambir Singh although he was not present at the place of occurrence at the time of alleged firing. According to Mr. Choudhury, the accused Rambir Singh being the Commander of the CRPF Coy, rather talked to Sub-Divisional Police Officer (SDPO), Dharmanagar, to defuse the situation and settle the matter and therefore, the allegation against him is clearly an afterthought. We have given our anxious thought over this submission and gone through the FIR and evidence on record. One has to note that both the complainant and accused Rambir Singh are leaders of the respective team namely, the local police and the CRPF and they were discharging their public duties at the relevant time. There is no evidence, or atleast any allegation, of animosity between the complainant and the accused Rambir Singh prior to this incident. They know each other as they use to perform duties in the same town. Sufficient evidence have been led by the prosecution that some CRPF jawans in civil dress without ticket occupied some seats in the Town Hall and they got furious when they were asked by the complainant to vacate the seats and left for their nearby camp only to come back and occupy again some seats per force. When the complainant asked the 'unruly' CRPF jawans to vacate the seats, they assaulted the complainant and his party and went back to their camp. When the complainant asked the 'unruly' CRPF jawans to vacate the seats, they assaulted the complainant and his party and went back to their camp. The CRPF jawans again came to the Town Hall, this time, of course, with their service weapon SLRs and resorted to indiscriminate firing and in the firing the Havildar Sukumar received serious bullet injury, who died on the spot. It is to be noted that the distance between the place of occurrence (Town Hall) and CRPF camp is only 200/250 cubits. As per evidence of PW-2, Krishna Lal Debnath, the SDPO at the time of occurrence was enjoying cultural show inside the Town Hall. He came out and talked to CRPF personnel present in front of the Town Hall. The accused Rambir Singh also claimed that he had a talk with the SDPO. Thus, it is evident that the accused Rambir Singh was present at the time of occurrence at the Town Hall. He had to talk to SDPO to defuse the situation, which obviously means that the situation had already turn worse due to alleged firing by the CRPF. The accused Rambir Singh targeted the complainant and he came along with his men to Dharmanagar Police Station in search of him. Therefore, the complainant made a specific allegation in the FTR that-- ...During commission of atrocity by CRPF jawans, the Coy Sub. Rambir Singh along with his staff appeared at Dharmanagar PS in search of me with intend to kill me. Later on SDPO, Dharmanagar intervened the matter and CRPF went back to their barrack.... 14. The attending circumstances and the evidence on record belies the above submission of the learned Senior Counsel for the appellants and leads us to record the finding that accused Rambir Singh was present, if not at the early stage of fie incident, but at least, at the crucial stage when the alleged firing took place and thus complainant implicated the accused Rambir Singh as Coy Commander from the very beginning in his FIR and the allegation against this particular accused is not an afterthought. 15. The crucial submission made by Mr. 15. The crucial submission made by Mr. A.B. Choudhury, learned Senior Counsel is that the complaint having admitted to have been carrying a 9mm pistol and a bullet of 9mm pistol having been extracted from the body of the victim Sukumar Ghosh during post-mortem examination, it can safety beheld that it was the complainant, PW-1 himself who shot at his own colleague, more so because, according to prosecution the CRPF came for the second time a 8.30 p.m. to the Town Hall with arms and tie firing took place at 9.30 p.m. only and he FIR was lodged by the complainant against the CRPF personnel to save himself from the offence of murder. Let us again loot closely at the FIR and the relevant evidence on record. According to FIR, at about 8 p.m., the CRPF personnel in civil dress, while they were persuaded to vacate the seats occupied by them without tickets had no arms with them. At about 8.30 p.m. they again came back and occupied some seats illegally for which the complainant had to again persuade the CRPF personnel and they assaulted the complainant and his party. At about 9.20 p.m., the CRPF personnel equipped with sophisticated arms like SLR, came back to the Town Hall. The alleged firing took place only after the CRPF personnel dashed in with arms after 9.20 p.m. Reading the FIR, which contains the allegation that "...immediately after a few minutes at about 21.20 hrs., the CRPF 9/10 jawans came out from their camp with their arms and ammunition started indiscriminate firing upon our police party in order to kill all of us..." with the claim of the defence that the firing took place at about 9.30 p.m. it stands as undisputed fact that the firing took place just after the arrival of CRPF personnel with arms at 9.30 p.m. and it cannot be said with certainty that the complainant himself shot at his own colleague deceased Sukumar Ghosh. There is no reason to believe the theory of the defence that the complainant would shoot at the fellow policeman on duty who was manhandled together by the CRPF before the alleged firing. As regards the extraction of 9mm bullet from the body of the victim, we have to examine the post-mortem report, Exh. P/7, along with the relevant seizure list and the FSL report. As regards the extraction of 9mm bullet from the body of the victim, we have to examine the post-mortem report, Exh. P/7, along with the relevant seizure list and the FSL report. Against the column of More Detailed Description of Injury or Disease' in Exh. P/7, post-mortem report, it is recorded as follows: 1. Lt Thigh--Bullet entered through front Thigh 4" below Inguinal ligament piercing ms, # shaft of femur (Lt) passes upward and posterior upto buttock just below the skin. Bullet handed over to police. 2. Sternal Injury--Entered through middle of Sternum, # Sternum piercing lungs (Lt) and heart (Lt ventricle), # 6 and 7th ribs posteriorly came outpost lateral direction, piercing ms, skin below the angle of Lt Scapula. Size 1½" × 3", evested margin. 3. 1" above nipple (Lt)-- Piercing ms, lungs (Lt) # 6 and 7th rib came out in posterior direction piercing ms, skin at the level of below the (Lt) angle of Scapula. 4. 3" below (Lt) nipple-- Piercing skin, ms, Lt lungs, # 10 and 11th rib (post) lacerating ms, skin came out in posterior Lt lateral direction in" the post axillary line. Size 2" × 1" evested. 5. 1" Lateral to (Lt) nipple-- Piercing skin, ms, lungs (Lt) # 10th and 11th rib, came out lacerating ms, skin in the post-axillary line in post. Lateral direction. Against the column of 'External Appearances' in the post-mortem report it is recorded as follows: Five entrance wound, four in front Chest and one front Thigh (Lt.). Two exit wound both in back of Chest. 16. These indicates that the victim received more than one bullet injuries but only one of them could be found at the time of conducting post-mortem examination at 7.15 a.m. on 9.7.1996. 17. The bullet recovered by the Doctor from the body of the deceased was handed over to the police. The police accordingly seized the said bullet along with other articles on 9.7.1996 at 12.00 hrs. by preparing the seizure list Exh. P/13. The OC, Dharmanagar PS also seized on 10.7.1996 one 9mm pistol bearing No. D-9622 with one magazine which was carried by the complainant (PW-1) at the time of alleged occurrence and also 35 rounds of 9mm cartridges vide seizure list, Exh. P/5. The police seized more articles which are detailed below: (1) Vide Seizure List (Ext. P/13. The OC, Dharmanagar PS also seized on 10.7.1996 one 9mm pistol bearing No. D-9622 with one magazine which was carried by the complainant (PW-1) at the time of alleged occurrence and also 35 rounds of 9mm cartridges vide seizure list, Exh. P/5. The police seized more articles which are detailed below: (1) Vide Seizure List (Ext. P/3) (a) One empty case of bullet being 7.62 Cartridge in which written 7.62 M80 93 of V. (b) Two pieces of bullet. These were seized on 9.7.1996 at 2.00 hrs. from the verandah of Town Hall, Dharmanagar. (2) Vide Seizure List (Exh. P/4) (a) One cartridge in which written 9mm. (b) One empty cartridge in which written 9mm. These were seized on 9.7.1996 at 1.30 hrs. from a place in front of Town Hall, Dharmanagar. (3) Vide Seizure List (Exh. P/6) (a) One SLR bearing No. 63, body No. 5166166 without magazine. (b) One live round of 9mm Amm. KF 71. These were seized on 10.7.1996 at 20.55 hrs. at SDPO's Office. (4) Wide Seizure List(Exh. P/13) (a)... (b)... (c)... (d)... (e)... (f)... (g) One piece of fired bullet with blood stain. These were seized on 9.7.1996 at 12.00 hrs. at OP which were handed over by the M.O. who held the p.m. examination. (5) Vide Seizure List (Exh. P/15) (a) One SLR bearing butt No. 11, Body No. CW 8404 without magazine. (b) One SLR bearing butt No. 72 Body No. 15430443 without magazine. These were seized on 7.2.1997 at CE Office, Agartala in presence of Dharambir Singh, Sub-Inspector, 97 Bn CRPF "C" Coy. As per records the aforesaid seized articles were sent to the Central FSL Bureau of Police Research and Development at Calcutta for examination by the order of the CJM, North Tripura, Kailasahar and necessary reports dated 30.6.1997 were received vide letter dated 10.7.1997 (Ext. P/16) addressed to the CJM. 18. At present, we are very much concerned with the report in regard to 9mm bullet extracted from the victim to find out as to whether it was fired from the pistol bearing SI No. D-9622, which was carried by the complainant at the relevant time. For better appreciation the relevant portion of FSL report is re-produced below: (5) Question No. 6 and 7: (i) Ten cartridges of 9mm caliber (refer Sr. No. 4) were test fired through the 9 mm pistol (SI. No. D-9622) marked Ext. For better appreciation the relevant portion of FSL report is re-produced below: (5) Question No. 6 and 7: (i) Ten cartridges of 9mm caliber (refer Sr. No. 4) were test fired through the 9 mm pistol (SI. No. D-9622) marked Ext. A-2 in the laboratory and the test fired cartridge cases were recovered. The pertinent characteristic marks of the exhibit pistol marked Ext. A-2 present on the test fired cartridge cases were compared with those present, if any, on exhibit cartridges marked Ext. EC-1 and Ext. EC-3 under the comparison microscope. As a result of comparison, the individual characteristics present on the firing pin and breech face marks of the evidence cartridge cases marked Ext. EC-1 and Ext. EC-3 were found to be dissimilar with those present on the cartridge cases test fired through the pistol (SI. No. 9622) marked Ext. A-2. It is therefore, concluded that the evidence cartridge cases marked Ext. EC-1 and Ext. EC-3 were not fired through the exhibit pistol (SI. No. D -9622) marked Ext. A-2. (Emphasis supplied). (ii) It is not possible to state whether evidence cartridge cases marked Ext. EC-1 and Ext. EC-3 were fired through any pistol or carbine, only by examining the cartridge cases. 19. There is no report to show that the defence, during trial, raised any objection to the acceptability of the FSL report particularly in respect of this 9mm bullet. Even in the present appeal, no such objection was raised. The only objection raised by the appellants at the time of hearing of this appeal is that the prosecution has not examined Shri Badoniya, Jr. Scientific Officer, Central FSL, Calcutta, who submitted the said report. Such submission of learned Sr. Counsel for the appellants has no force for taking a view different from the one taken by an expert authority like the Central FSL and this Court being not an expert body could override the expert opinion. We are bound to accept this piece of expert opinion/report of the Central FSL and hold that the 9mm bullet extracted from the body of the victim by the Doctor who held the autopsy was not fired from the pistol carried by the complainant PW-1 and as such the submission made by the appellants that the complainant himself shot at the victim has no force. 20. Mr. 20. Mr. A.B. Choudhury, learned Senior Counsel for the appellants, strenuously argued that the Test Identification Parade (TIP) as conducted by the prosecution was vitiated for the following reasons: (a) There was inordinate delay of 10 days in holding the TIP for which there is no explanation by the prosecution. (b) The Magistrate admits that he did not enquire as to whether on their first production before the Court the faces of the accused were covered. (c) The wearing apparels of the suspects and other CRPF personnel were not of same colour. They were different type colour shirts and trousers. 21. Let us examine whether there is a delay of 10 days in holding TIP, and if so, whether it amounts to an inordinate delay vitiating the TIP. According to evidence of PW 24 (I.O.), the CRPF authority produced the accused persons along with SLR bearing No. 63 on 10.7.1997 before the OC, Panisagar PS. He came to the said PS and seized the SLR aforementioned and also arrested the accused persons. The accused persons were produced before the CJM, Kailasahar because there was tension in Dharmanagar locality which falls under the jurisdiction of CJM, Dharmanagar. The I.O. (PW-24) made a written prayer before the CJM for holding the TIP of the arrested accused persons and he received requisition from the DSP, CID (PW-25) on 20.7.1996 and accordingly, he produced the accused persons before the Magistrate (PW-18) at Kailasahar for holding the TIP in the District Jail. It admittedly took 10 days' time between the arrest of accused persons and holding the TIP. So it is not in dispute that there was a delay of 10 days in holding the TUP. Citing the case of Rajesh Gobind Jagesha v. State of Maharashtra, reported in 2000 CriLJ 380, Mr. A.B. Choudhury, learned Senior Counsel submits that where there is an unexplained delay in holding the TIP, the evidence of prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case, the accused is entitled to the benefit of doubt. According to Choudhury, in the present case also the prosecution has come forward with no explanation and as such the accused persons are entitled to same benefit of doubt. According to Choudhury, in the present case also the prosecution has come forward with no explanation and as such the accused persons are entitled to same benefit of doubt. We have gone through the judgment of the Apex Court in the aforesaid cited case and found that there was a delay of 24 days in holding the TIP due to non-availability of a Magistrate in a city like Bombay and the said explanation was held to be not trustworthy. In the present case, the delay is only 10 days, apparently due to correspondence made by the I.O. with the higher police official and obtaining appropriate order/permission from the CJM concerned and such delay of 10 days, in our considered opinion, cannot be regarded as inordinate one and the present appellants would not get the same benefit of doubt. 22. Now, let us examine whether it is at all necessary to cover the face of an accused at the first production before the Court for TIP. Also whether the wearing apparels of the suspects and other persons mixed up with the suspects for holding TIP should also be same type and colour. The appellants' counsel Mr. Choudhury in support ofhis submission relied upon the Apex Court's decision in Budhsen v. State of U.P. reported in 1970 CriLJ 1149. In this case, it is held that the identification parades belong to the investigation stage and they are generally held during the course of investigation. The primary object of TIP is to enable the witness to identify persons concerned in the offence, who were previously not known to them. A Magistrate holding the TIP are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. The Apex Court in Budhsen's case (supra) held specifically that the persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification. Further, it was held that number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. So, it is not a general rule that the face of the accused must be covered at the first production for TIP and should be in the wearing apparel of same type and colour. Further, it was held that number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. So, it is not a general rule that the face of the accused must be covered at the first production for TIP and should be in the wearing apparel of same type and colour. Moreover, going through the deposition of the Magistrate (PW-18) who conducted the TIP, we found that he mixed up the suspects one by one with 11 CRPF personnel. They were mixed up with suspects who were of same face, feature, height, health and ethnic condition. The Magistrate (PW-18) recorded the details of the TIP in the prescribed form vide Exh. P/2 series which we have also perused and found nothing on record that the appellants ever made any complaint/objection regarding procedure followed or any irregularity found to have been committed by the Magistrate in conducting the TIP. We find that no serious irregularity has been committed by the Magistrate (PW-18), that may vitiate the entire TIP rendering it wholly unacceptable or unreliable. The above submission advanced by the learned Counsel for the appellants are not based on sound principle and as such we have no hesitation to reject the same. 23. It is now necessary to examine closely the materials contained in the FIR, TIP report and the deposition of the witnesses in regard to identification of the accused persons. The accused appellant Shri Rambir Singh has been named in the FIR as the leader of the CRPF party. The FIR is silent about the other accused appellants. However, it is stated in the FIR that the complainant, PW-1 would be able to identify one or two jawans if produced before him. In the TIP, the complainant PW-1 and his colleagues PWs. 2 and 3 identified the accused Raj Kumar Singh because they could see him in the electricity light in front of the Town Hall at Dharmanagar on 8.7.1996 at about 9 p.m. when he was altercating with S.I., K.K. Choudhury and pushing the SDPO. According to TIP report of the Magistrate (PW-18) vide Exh. P/2, these 3 (three) witnesses identified the suspect R.K. Singh by touching his body and the suspect/accused made no comments. These three witnesses could identify the accused R.K. Singh in the dock while deposing before the trial Court. According to TIP report of the Magistrate (PW-18) vide Exh. P/2, these 3 (three) witnesses identified the suspect R.K. Singh by touching his body and the suspect/accused made no comments. These three witnesses could identify the accused R.K. Singh in the dock while deposing before the trial Court. PW3 Krishnapada Bhowmik identified the accused Vedamani Mishra in the TIP because he saw these accused in the light of the electricity while he was altercating with the complainant S.I., K.K. Choudhury in front of the Town Hall at Dharmanagar on 8.7.1996 at about 9 p.m. along with others. As per TIP report of the Magistrate aforesaid, PW3 identified the accused Vedamani Mishra by touching his body and he also made no comment during identification. This witness PW3 maintained the same statement in his deposition before the trial Court. From the TIP report, it is found that none of the witnesses could identify accused Somnath Singh, although he was presented in the TIP along with other accused/suspects. In the evidence also, none of the witnesses deposed that they had identified accused Somnath Singh. It may be noted that the aforesaid policemen PWs. 1, 2 and 3 had been on duty in a team and they together confronted with the CRPF jawans at the Town Hall and therefore, the possibility of these PWs having seen Or identified, atleast some of them by face, cannot be ruled out. We find therefore, that what has been found and stated during the TIP and in deposition before the trial Court are quite natural and impressive. 24. The law as regards the TIP is settled by now. Holding of TIP is necessary in respect of witnesses who did not know before the occurrence but failure to hold such a parade would not make inadmissible the evidence of identification. This has been held so in the case of Kanta Prasad v. Delhi Administration reported in 1958 CriLJ 698. The Apex Court made an observation in the case of Jadunath Singh v. State of U.P. reported in 1971 CriLJ 305 that absence of Test Identification is not necessarily fatal. The importance of TIP was considered in case of Harinath v. State of U.P. reported in 2003 CriLJ 1524 and it was held by the Apex Court that the TIP has corroborative value only and a TIP should be held with reasonable promptitude after the occurrence. The importance of TIP was considered in case of Harinath v. State of U.P. reported in 2003 CriLJ 1524 and it was held by the Apex Court that the TIP has corroborative value only and a TIP should be held with reasonable promptitude after the occurrence. The Court has to see whether the earlier identification made in the TIP corroborates the evidence adduced in the trial in regard to identification of the accused. For it has already been held in the case of George v. State of Kerala as reported in 1998 CriLJ 2034, that identification of an accused in the Court is a substantive evidence of the person identifying and his earlier identification in the TIP corroborates the same, in other words, wants of evidence of earlier identification in a TIP does not affect the admissibility of the evidence of identification in Court. In the present case, it has become evidently clear from the records that the TIP was held in reasonable promptitude and an identification by the witnesses in the TIP have corroborated with the substantive evidence given by the said witnesses before the trial Court. The identification of atleast 3 (three) accused persons namely, Rambir Singh, Raj Kumar Singh and Vedamani Singh have firmly been established. 25. The appellants have been putting maximum reliance on the evidence of independent witnesses namely, Shri Chaitanya Chakraborty (PW-7) and Shri Vaskar Vaidya (PW-11). PW-7 runs a tea stall in front of the Town Hall. He stated that the CRPF camp situates just 200/250 cubits away from the Town Hall. The CRPF camp situates adjacent to his tea stall and it is visible from his tea stall. He knows the CRPF personnel as they use to visit his shop. According to him, on 8.7.1996 at about 9 p.m., there was a cultural programme in the Town Hall. To quote his statement-- ...At that time, police personnel were present in front of Town Hall. They were performing law and order duty. At that time, some of the organizers of the cultural show intimated the informant Choudhury that some CRPF personnel had forcibly entered into the Town Hall without having valid ticket. Thereafter, the informant entered into the Hall and drove the CRPF personnel out from the Hall. Thereafter, there was hot altercation in between the informant and the CRPF personnel. The informant fell down on the ground. Thereafter, the informant entered into the Hall and drove the CRPF personnel out from the Hall. Thereafter, there was hot altercation in between the informant and the CRPF personnel. The informant fell down on the ground. At that time we heard the sound of firing. I. also found that people who were present in front of the Town Hall had been running away being afraid of CRPF personnel. I also followed them. Subsequently, after a few minutes later I returned to shop as it was opened and found that one police personnel had been lying on the ground with bleeding injury and the CRPF personnel had been coming from their camp.... In cross-examination he said that at the time of scuffling with the police personnel, he did not find any arms in the hands of the parties but subsequently he said that the CRPF personnel came with arms to the spot after 10/12 minutes later of the scuffling. The other independent witness PW-11, stated that while he was standing in front of the tea stall, the CRPF personnel came there and inquired about the informant. At that very moment the informant came out of the Town Hall and he could notice that there was a hot altercation in between the CRPF personnel and the informant and all of a sudden one of the CRPF personnel dealt a blow on him for which he fell down on the ground. At that very moment he heard a sound of firing and the CRPF had been coming from their camp. On seeing the same, he fled the scene and subsequently came to know that one Sukumar Ghosh of Tripura Police died on the spot because of bullet injury. To put in the words of PW-11-- ...I also noticed that the CRPF personnel had been carrying rifles in their hands. The CRPF personnel had been firing indiscriminately and Sukumar Ghosh died because of their firing.... In cross-examination, he stated-- ...When the CRPF personnel had been inquiring about the informant, they were wearing civil dress. At that time they were not armed. I heard the sound of firing after 4/5 minutes latter from the altercation between the informant and the CRPF. It is not a fact that CRPF personnel have not dealt a blow to the informant. It is not a fact that Sukumar Ghosh had not died because of indiscriminate firing of CRPF personnel.... At that time they were not armed. I heard the sound of firing after 4/5 minutes latter from the altercation between the informant and the CRPF. It is not a fact that CRPF personnel have not dealt a blow to the informant. It is not a fact that Sukumar Ghosh had not died because of indiscriminate firing of CRPF personnel.... 26. From the evidence of P.Ws. 7 and 11, it is evident that there was an altercation/scuffling between the CRPF personnel and the informant followed by assault by CRPF personnel on the policemen and ultimately opening fire at Head Constable Sukumar Ghosh. The CRPF personnel created a reign of terror at that time in the Town Hall complex for which the member of the public, even the State policemen, had to flee away out of fear. Since the CRPF camp situates just at a distance of 200/250 cubits from the Town Hall and visible therefrom, it was quite probable and natural that there was reinforcement of more CRPF jawans both in civil dress with or without arms and also in uniform with arms and without arms. In the melee, it was not possible to notice by a bystander/public to notice which of the CRPF jawans present at the time of scuffling with the policemen was carrying arms. And these two PWs were not present at the actual moment when the firing took place. They only heard the sound of firing. But these two PWs had stated in corroboration that CRPF personnel came to the spot with arms sometime after the firing. This group of CRPF personnel was a further reinforcement from their camp after firing and none of them were involved in the firing. This does not lead to a conclusion that the CRPF personnel who were already present at the scene, either in civil dress or in uniform had no occasion or possibility to shoot at the policemen. That is why PW-11 stated very firmly that the CRPF personnel had been carrying rifles in their hands and the CRPF personnel had been firing indiscriminately and Sukumar Ghosh died because of their firing. The defence put suggestion to this witness on this point and it failed to demolish his evidence. 27. Is this evidence of PW-11 supported by any other evidence? For this, we would advert to Exh. The defence put suggestion to this witness on this point and it failed to demolish his evidence. 27. Is this evidence of PW-11 supported by any other evidence? For this, we would advert to Exh. P/15 by which the police seized two self loading rifles from the CRPF: (a) One bearing butt No. 11 Body No. CW 8404. (b) Butt No. 72 Body No. 1543 0443 (both without magazine) on 7.2.1997. Also we would advert to Exh. P/3 by which police seized one empty case of bullet being 7.62 cartridge in which written 7.62 M 80 93 of V from the verandah of the Town Hall (place of occurrence) on 9.7.1996. The Central FSL marked these articles as Exh. EC-2 in its laboratory. These seized articles were sent to the Central FSL for examination and report the relevant portion of the FSL report, Exh. P/16 under caption "Question Nos. 2, 9 and 10" may be quoted for better appreciation: (2) Question Nos. 2, 9 and 10: The thirty 7.62 mm calibre cartridges marked Ext. TC-1 to TC-30 were fired through the 7.62 mm SLR (Sl. No. 15166166) marked Ext. A-1, 7.62 mm SLR (Sl. No. CW 8404) marked Ext. A-3 and 7.62mm SLR (Sl. No. 15430443) marked Ext. A-4 in the Laboratory and test fired cartridge cases and bullets were recovered. The pertinent characteristic marks of SLR Ext. A-1, SLR Ext. A-3 and SLR Ext. A-4 present on the test fired cartridge cases were compared with those present, if any, on the evidence cartridge case marked Ext. EC-2 under the comparison microscope. As a result of comparison, the individual characteristics present on the firing pin and breech face marks of the evidence cartridge case marked Ext. EC-2 were found to be characteristically matching with those present on the test cartridge cases fired through the 7.62 mm self loading Rifle (SI. No. CW 8404) marked Ext. A-3. It is therefore, concluded that evidence cartridge case marked EC-2 was fired through the 7.62 mm self loading rifle (bearing butt No. 11 SI. No. CW 8404) marked exhibit A-3. (Emphasis supplied) From this portion of FSL report it is evidently clear that the aforesaid seized bullet of 7.62 mm calibre was fired from the SLR bearing Butt No. 11 Sl. No. CW 8404 which belongs to and seized from the CRPF. 28. No. CW 8404) marked exhibit A-3. (Emphasis supplied) From this portion of FSL report it is evidently clear that the aforesaid seized bullet of 7.62 mm calibre was fired from the SLR bearing Butt No. 11 Sl. No. CW 8404 which belongs to and seized from the CRPF. 28. For better appreciation, we would further advert to the PM report, Exh. P/7, in which there is a mention of as many as 5 (five) entrance wounds - 4 ant Chest (Lt) and 1 ant Thigh (Lt) and also 2 exit wounds both in back and chest. These wounds tell that the deceased received several bullet injuries including the one 9mm recovered from the dead body of the victim at the time of holding the postmortem. As for this 9mm bullet, the FSL report, Exh. P/l 6, under caption "Question Nos. 6 and 7", it was not fired through the pistol No. D-9622 carried by the informant P W-1. It is already proved that some of the CRPF personnel came to the spot with SLR and some empty cartridges were found and seized from the place of occurrence. They were examined and found to be shot from one SLR bearing Butt No. 11 Body No. CW 8404 belonging to and seized from the CRPF. Therefore, it is evidently proved that the victim received bullet injury/injuries shot from the SLR of the CRPF. 29. The defence has offered no explanation how some empty cartridges of the SLR could be recovered from the place of occurrence. The defence at no point of time during the trial, raised any objection on the said FSL report. The defence did not even cross-examine the concerned prosecution witnesses on the seizure of the aforesaid SLRs and its empty cartridges. 30. Much emphasis was made by the appellants' counsel on the non-examination of SDPO who was enjoying cultural function in the Town Hall and who according to prosecution and the defence as well, came out and talked to the CRPF personnel and defused the situation. According to the appellants, the said police officer should have been examined by the prosecution to prove its case that the Fire Servicemen were allegedly assaulted, confined and prevented by the CRPF personnel from proceeding to the place of occurrence and on his arrival only they were set free. Non-examination of such a vital witness according to Mr. According to the appellants, the said police officer should have been examined by the prosecution to prove its case that the Fire Servicemen were allegedly assaulted, confined and prevented by the CRPF personnel from proceeding to the place of occurrence and on his arrival only they were set free. Non-examination of such a vital witness according to Mr. A.B. Choudhury, learned Senior Counsel cast doubt of the trust of the prosecution's story and the Court should give benefit of doubt to the accused appellants. We are not prepared to pay much importance to this submission because it is found from the evidence on record that the CRPF personnel visited the Town Hall, at least 3 (three) times and instead of maintaining calm, they created nuisance by assaulting the policemen. The independent non-policemen witnesses, PWs. 7 and 11 have also testified the fact of CRPF personnel assaulting the policemen and the people fleeing the place of occurrence out of fear of the unruly CRPF personnel. The PWs. 6, 8, 9 and 13 have proved by their corroborated statements the feet of their being assaulted and prevented by the CRPF personnel from proceeding to the place of occurrence. There is no law that the prosecution must examine all the witnesses to prove a particular fact which has already been proved by other witnesses. The settled law is that if a witness is otherwise reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses. Thislaw has been enunciated by the Apex Court in the case of Chaudhari Ramji Bhai Narasang Bhai v. State of Gujarat, reported in 2004 CriLJ 280. It is further held in the case of Simon v. State of Karnataka, as reported in (2004) 1 SCC 694, that it is not the quantity but quality of the witness that matters. In this case, the evidence of independent witnesses PWs. 7 and 11, as discussed earlier, stood reliable and trustworthy, as the defence itself at certain stage relied on their deposition. It is not the case of the defence that the SDPO was an eye-witness to the incident of firing. Had it been so, the prosecution was required to examine him. In this case, the evidence of independent witnesses PWs. 7 and 11, as discussed earlier, stood reliable and trustworthy, as the defence itself at certain stage relied on their deposition. It is not the case of the defence that the SDPO was an eye-witness to the incident of firing. Had it been so, the prosecution was required to examine him. By not examining the SDPO, in our considered opinion, the prosecution case has not been affected in any manner, far less giving the benefit of doubt to the accused appellants on that count. After all, the prosecution has been able to prove conclusively through the FSL and PM report that at least a bullet was shot at the victim from one SLR that belonged to CRPF, as discussed earlier. 31. We would now consider an aspect in respect of accused/appellant No. 3, Somnath Singh, which escaped due attention and consideration of the learned trial Court. It refers to submission of Mr. Choudhury, learned Senior Counsel for the appellants that accused Somnath Singh was not identified in the TIP by any of the prosecution witnesses and there is no evidence on record either oral or documentary, against him. We have already examined the TIP report Exh. P/2 series, earlier and discussed at length. There is a specific note by the Magistrate, PW-18, in the said report that none of the witnesses could identify the accused Somnath Singh. During trial also, none of the witnesses could identify him. None of the prosecution witnesses deposed that accused Somnath Singh was seen with the main accused Rambir Singh or other co-accused, let alone his taking active participation in the scuffling with the policemen PWs. 1,2 and 3 and taking part in the firing in the Town Hall on the date of occurrence. It is for this reason, Mr. Choudhury argued that while examining the accused Somnath Singh under Section 313, Cr.P.C., learned trial Court committed gross illegality by putting questions contrary to the facts born on records. The charges against this accused Somnath Singh as argued by Mr. Choudhury, have not been proved beyond any shadow of reasonable doubt and as such, the order of conviction and sentence, so far as this accused is concerned, is liable to be quashed giving him the benefit of doubt. The charges against this accused Somnath Singh as argued by Mr. Choudhury, have not been proved beyond any shadow of reasonable doubt and as such, the order of conviction and sentence, so far as this accused is concerned, is liable to be quashed giving him the benefit of doubt. This submission finds support of the evidence available on record of the case, which we have appreciated earlier, and it has, thus, appealed us most and therefore, we hold that the prosecution has indeed failed to prove the case against the accused Somnath Singh beyond reasonable doubt. 32. So far other accused/appellant No. 1 Rambir Singh, accused/appellant No. 2 Raj Kumar Singh and accused/appellant No. 4 Vedamani Mishra are concerned on due appreciation of evidence on record, we hold that the prosecution has been successful in proving its case against them beyond all reasonable doubt and they are liable to be convicted and sentenced as has been done rightly by the learned trial Court. Accordingly, we uphold and confirm the conviction and sentence of the accused/appellant No. 1 Rambir Singh, accused/appellant No. 2 Raj Kumar Singh and accused/appellant No. 4 Vedamani Mishra, accordingly they are directed to surrender and set aside the conviction and sentence of accused/appellant No. 3 Somnath Singh and order his acquittal. Let this accused/appellant No. 3, Somnath Singh be set at liberty forthwith, if his detention is not required in connection with any other case. 33. This appeal is partially allowed and disposed of as indicated above. Send down the LCR forthwith.