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2008 DIGILAW 737 (GAU)

Rambabu Sharma v. State of Assam

2008-09-29

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftabh Saikia, J. 1. Heard Mr. J.M. Choudhury, learned senior counsel assisted by Mr. P. Kataki, learned Counsel for the appellants. Also heard Mr. K.A. Mazumdar, learned P.P., Assam. 2. Challenging in this criminal appeal is to the judgment and order dated 8.8.2002 passed by the learned Ad hoc Additional Sessions Judge No. 1, Kamrup, Guwahati (for short, 'the learned Judge') in Sessions Case No. 151(K)/99. 3. Initially 5 (five) persons namely Sri. Bikash Sharma, Sudir Sharma, Shambhu Sharma, Sanjay Sharma and Rambabu Sharma faced the trial for alleged commission of offence punishable under Section 302 read with Section 34, IPC. 4. Sri Sanjay Sharma died during the trial. 5. The learned Judge found Rambabu Sharma Bikash Sharma and Sudhir Sharma appellants No. 1 and 3 respectively (hereinafter referred to as 'A-l', 'A-2' and 'A-3' respectively herein) guilty under Section 302, IPC read with Section 34, IPC while acquitting Shambhu Sharma. 6. The prosecution case in brief as unfolded during the trial is that on 7.3.1998 an Ezahar was lodged by Bijay Kr. Thakur (PW 8) with the Bharalumukh Police Station alleging that an that fateful date (i.e., 7.3.1998), at about 7.30 p.m. while he was standing in front of his Hotel Campus he heard gun sound and immediately his neighbour Nanda Kishore Shah (PW 2) came to him shouting "mar diya, mar diya". When he asked him about the matter, he (PW 2) told that Indrajit (hereinafter referred to as 'the deceased') was shot near Peepal Tree, Gol Building, Guwahati at Athgaon. The deceased, son Ramashis Thakur (PW 11) was the younger brother of the informant. He immediately along with his cousin Vidya Thakur (PW 6) rushed to the spot and found his brother, the deceased lying on the earth senseless. Immediately then he saw A-2, A-3 and A-1 were getting entry in a auto rickshaw and thereafter fled away towards M.S. Road. The informant also saw A-l, A-2 and A-3 walking near Gull Building prior to the incident. Thereafter he along with his cousin (PW 6) took the deceased to Down Town Hospital where the doctor declared his brother dead. 7. The investigation was set in motion on the basis of the above mentioned FIR under Section 302read with Section 34, IPC. 8. On completion of the investigation, the police submitted charge-sheet. Thereafter he along with his cousin (PW 6) took the deceased to Down Town Hospital where the doctor declared his brother dead. 7. The investigation was set in motion on the basis of the above mentioned FIR under Section 302read with Section 34, IPC. 8. On completion of the investigation, the police submitted charge-sheet. The appellants including other two accused persons namely Sanjay Sharma (since death) and Sambhu Sharma (since acquitted by the Trial Court) abjured guilt and claimed trial. 9. During trial, the prosecution examined as many as 16 witnesses in order to establish its accusation. PW 5, Ganga Thakur and PW 7, Jagindra Sarma were stated to be the main eye-witnesses. 10. In order to establish the factum that both the two eye-witnesses i.e. PW 5 and PW 7 were not present at the time of occurrence and that to prove that there was a load shedding at the relevant time of the occurrence of the alleged offence alleged incident, the defence examined DW 1 Raj Narayan Sarosia, DW 2 Kumar Sankar Rai and DW 3 Munindra Narayan Dutta. All these appellants before us were also examined under Section 313, Cr PC. The learned Judge having appreciated the entire material evidence on record found those to be cogent and recorded conviction and sentence as noted above. 11. Basically the conviction was rested on the ocular evidence of PW 5 and PW 7 who according to the prosecution, saw by their own eyes the commission of the crime of killing the deceased in furtherance of the common intention of all these three appellants. 12. In support of the appeal, Mr. Choudhury the learned Senior Counsel for the appellants has contended at the very outset that so called eye-witnesses i.e. PW 5 and PW 7 on the day of occurrence were not present at Guwahati and on the relevant date both of them were at village Bhojpur, State of Bihar. Besides an ordinary reading of the evidence of both the eye-witnesses would manifestly go to exhibit that their deposition are full of contradictions and inconsistencies and both these witnesses are not reliable and cannot be said to be trustworthy and the same cannot be the basis for conviction of the appellants. Besides an ordinary reading of the evidence of both the eye-witnesses would manifestly go to exhibit that their deposition are full of contradictions and inconsistencies and both these witnesses are not reliable and cannot be said to be trustworthy and the same cannot be the basis for conviction of the appellants. His basic thrust is that the ocular evidence of these two witnesses were discarded by the PW 16, the Investigating Officer, (IO) and also DW 1 and DW 2 adduced by the defence. Even their evidence on record to the effect that there was electric light in the shops and on the street were belied by the evidence of DW 3, being an official witness, an Assistant Executive Engineer in the Assam State Electricity Board (for short, 'ASEB'), who relying on records categorically stated that on the relevant date and time there was load shedding in the area. As regards the involvement of A-1 and A-3 in the alleged crime along with the A-2, who was alleged to have fired the shot at the deceased in furtherance of their common intention, learned Counsel has submitted that from the deposition of the eye-witnesses that A-2 fired at the deceased with pistol and A-3 pushed the deceased and A-2 was with A-1 and A-3 at the time of commission of the offence, it transpires that A-1 and A-3 were not armed with any weapon and no overt act was attributed to them. 13. Per contra, the learned Public Prosecutor has strenuously urged that evidence of DW and DW 2 cannot be accepted to set aside the impugned conviction of the appellant because both the eye-witnesses PW 5 and PW 7 were emphatic and categorical in testifying that it was A-2 who fired shot at the deceased and at that time A-3 pushed the deceased and A-1 was also present. Therefore the learned Judge was wholly justified and correct in convicting all these three appellants under Sections302/34, IPC primarily relying on the testimony of both the eye-witnesses. 14. We have given our thoughtful consideration to the extensive arguments so canvassed on behalf of the parties. We have also minutely scrutinized and carefully appreciated the testimony of all the witnesses so examined by the prosecution as well as by the defence, particularly, eye-witnesses PW 5 and PW 7 alongwith PW 16 (IO) as well as DW 1, DW 2 and DW 3. 15. We have also minutely scrutinized and carefully appreciated the testimony of all the witnesses so examined by the prosecution as well as by the defence, particularly, eye-witnesses PW 5 and PW 7 alongwith PW 16 (IO) as well as DW 1, DW 2 and DW 3. 15. PW 5 testified that at the relevant time he alongwith PW 7 were in the temple near the Peepal Tree. There were also other people in the temple where they were sitting. It was an open temple. When the deceased after purchasing some eggs was proceeding towards his house, then A-2 who was moving there in that area, fired at the deceased with a pistol and A-3 pushed the deceased. A-1 was also with A-2 and A-3. According to him, he saw the incident at a distance about 10 feet where there was light. There were also streetlight in the shops and temple. After firing at the deceased they fled away, seeing A-2 firing at the deceased this witness also fled away out of fear. After 1/2 an hour he came back and in the meantime deceased was taken to the Hospital by Bijay Kr. Thakur (PW 8). In cross, this witness denied the fact that he was present at Bhojpur on that day i.e. 7.3.1998 when at Bhojpur, a function of 'Durgagaman' of Rani, daughter of Ramprakash Thakur who was his father's younger brother was held. He stayed in the house of the deceased as the deceased was his cousin. He left the place for Bhojpur after 10 days. According to him, he told Ramasis Thakur (PW 11), the father of the deceased about the occurrence with the names of the accused on 8th (next day). He also stated that 2/3 days after the occurrence he was examined by the police. Except PW 11 he did not tell any other person what he saw in the incident. Though he came to the place of occurrence and found some people assembled there, he did not tell them that he saw A-2 firing at the deceased and A-3 pushed the deceased. He in cross reiterated that there was streetlight but according to him electric light were gone off in the shops and streetlight were near the place of occurrence. He also stated that there were 10/12 persons alongwith him and they were sitting under the Peepal Tree. He in cross reiterated that there was streetlight but according to him electric light were gone off in the shops and streetlight were near the place of occurrence. He also stated that there were 10/12 persons alongwith him and they were sitting under the Peepal Tree. Those people also, according to him saw the occurrence. At the same time PW 7, another eye-witnesses while deposed that on the day of occurrence on 7.3.1998 at about 7/7.30 p.m. he was sitting in the temple under the Peepal Tree. PW 5 was also with him. At that time A-2 fired at the deceased when the deceased was proceeded towards home taking some eggs. A-2 fired at the deceased with a pistol. According to this witnesses both A-1 and A-3 were also with him. He saw A-2 firing at the deceased from a distance of about 10 feet. However out of fear he ran away. A-2, A-3 and A-1 also left the place. In cross this witness denied the suggestion that he did not tell the police that A-2 fired the deceased with a pistol. He also deposed that he told PW 11 (Ramashis Thakur) about the incident on the same night about 1/2 an hour after and he left for Bhojpur about 11/12 days after the occurrence. One Rani his sister in law but he did not know if there was 'Durgagaaman' ceremony at Bhojpur. According to him in cross apart from him and PW 5 there were lot of people under the Peepal Tree, who saw the occurrence PW 11, father of the deceased, contrary to the evidence of PW 5 and PW 7, claimed that they informed the PW 11 about the killing of the deceased by A-2 in presence of A-3 and A-l, in his deposition stated that on the day of occurrence he was in the hotel and upon hearing hullah he came out and knew that the deceased was shoot. He immediately informed the police over telephone and coming to the place of occurrence he knew that his elder son Bijoy Thakur (PW 8) and Bidya Thakur (PW 6) took the deceased to Down Town Hospital. He went to the Down Town Hospital where the doctor declared death of his son the deceased. Police came down to the Down Town Hospital where he was still there. When the police prepared some paper he was not present there. He went to the Down Town Hospital where the doctor declared death of his son the deceased. Police came down to the Down Town Hospital where he was still there. When the police prepared some paper he was not present there. He returned home in the meantime when he came home he came to know that A-2 fired bullet at the deceased and that A-3 pushed the deceased after he was shot by A-2. He further came to now that A-1 was also assisting A-3 and A-2. He was told that thing by PW 5 and PW 7 who told him to have seen in their own eyes A-2 fired bullet at the deceased. In the cross this witness claim about at about 8/9 O' clock in the following morning of the occurrence the PW 5 and PW 7 told him that A-2 shoot the deceased. He however did not tell the police that PW 5 and PW 7 told him that A-2 shot the deceased since the police recorded his statement before. In the same breath in the cross he stated that the police had not recorded his said statement above. 16. The IO, PW 16, in his deposition in cross, revealed an interesting story. In cross, he testified that he recorded the statement of Ramasis Thakur (PW 11), the father of the deceased on 9.3.1998 but surprisingly he recorded the statement of PW 5 and PW 7 on 17.4.1998 after a lapse of more than one month from the date of occurrence. Even the PW 7 did not tell him that appellant No. 2 had shot the deceased with a pistol. In his re-examination in chief, again he stated that PW 7 (Jagindra Sarmah) who was stated to be eye-witness while making his statement before him told him that A-2 had fired bullet at the deceased from behind (same was shown to be under objection). In re-cross-examination, in the same breath, this PW 6 told that other witnesses namely PW 5 and PW 7 did not tell him that killing was done from behind. 17. In re-cross-examination, in the same breath, this PW 6 told that other witnesses namely PW 5 and PW 7 did not tell him that killing was done from behind. 17. The DW 1 and DW 2 in their evidence categorically stated that on the fateful day there was a function namely 'Durgagaman' relating to one Rani, daughter, of Ramprakash Thakur and both the PW 5 and PW 7 were present at the function at Bhojpur village of Bihar and in the course they saw both the witnesses at 7 p.m. when they attended to function. At the same time, PW 3 an officer of the ASEB working as Assistant Executive Engineer (SDO) deposed on the basis of the record of load shedding during the year 1998 so brought by him before the Court that at 7.3.1998 w.e.f. 6.30 p.m. to 7.30 p.m. there was load shedding that took place within the area of Fatasil Ambari as per direction of the Kahilipara Control Room. In cross, he has stated that he had no personal knowledge of the load shedding and he was not there at the relevant period. 18. Having minutely appreciated the testimony of these four witnesses namely so called eye-witnesses PW 5, PW 7, including PW 11 and PW 16 (IO) as well as DW 1, DW 2 and DW 3, it transpires that on the face of evidence of those eye-witnesses itself, the same cannot be accepted being unreliable, contradictory and inconsistent to one another PW 5 deposed that there was streetlight on the day of occurrence i.e. 7.3.1998 at about 7/7.30 p.m. at the place of occurrence and he told PW 11, Ramasis Thakur about the occurrence that A-2 fired at the deceased only on next day i.e. 8.3.1998. He also stated that seeing A-2 firing at the deceased he fled away out of fear. After 1/2 an hour he came back and by that time the deceased was taken to Hospital. He also stated that seeing A-2 firing at the deceased he fled away out of fear. After 1/2 an hour he came back and by that time the deceased was taken to Hospital. This piece evidence has been demolished by the PW 11 who deposed as already noted above that on the day of occurrence after seeing his son the deceased, at Down Town Hospital where his own was declared dead when he came home, he came to know that it was A-2 who fired bullet at the deceased and A-3 pushed the deceased after he was fired by A-2 and such fact was told to him by PW 5 and PW 7. This witness i.e. PW 11 in his cross, told that on the 8/9 a.m. of the following morning PW 5 and PW 7 told him that A-2 shot the deceased. This fact was however, not told by him to the police since police recorded his statement before that Significantly PW 16 (IO) in his deposition, mentioned that he recorded the statement of PW 11 on 9.3.1998 after two days of the occurrence. Even PW 7 claimed that he told PW 11 on the same night immediately after 1/2 an hour of the incident. Interestingly it has also come in the evidence of IO that he examined PWs 5 and 7 on 17.4.1998 after more than one month and they did not tell him that A-2 shot with a pistol at the deceased. Keeping in view the evidence of DW 1 and DW 2 and also statement of IO as regards the examination of the PWs 5 and 7 after more than one month, in our opinion, it would go to show that on the day of occurrence PWs 5 and 7 were not present and the same is also evident from the contrary and inconsistent version given in the deposition of PW 5 and PW 7 along with PW 11 and 16 (IO) as indicated above. 19. Coming to the participation of A-1 and A-3 in the alleged killing of the deceased by A-2 so as to book them under Section 34, IPC for their common intention thereof, from the close scrutiny of the evidence of the prosecution witnesses it appears that it was A-3 who according to the witnesses particularly the eye-witnesses PWs 5 and 7 pushed the deceased after being shot at by A-2. Save and except these two witnesses, nobody had spoken as regards participation of A-3. As regards A-1, from evidence it was testified that he was also present without indicating the part played by him. None of the witnesses ever stated that A-1 and A-3 pre-mediated with A-2 before the offence was committed. It was also evidenced that A-1 and A-3 were not armed with any weapon and no overt act was attributed to A-1 and A-3 except the alleged push given by A-3 to the deceased. 20. Two essential ingredients of Section 34, IPC are that participation in the act and common intention to commit such act. In order to attract Section 34, IPC there must be pre-arranged plan and meeting of mind, which may also develop on the spot. In the instant case having gone through the evidence of PW 5 and PW 7 whose evidence itself was found to be unreliable, untrustworthy and even their presence itself on the day of occurrence was demolished by DW 1 and DW 2 including PW 16 (IO), we do not find that A-1 and A-2 participated in the alleged incident in furtherance of the common intention. 21. Coming to the question of appreciation of evidence of defence witness, law in this point is settled. Defence witnesses are entitled to equal treatment with those of the prosecution. In Dudh Nath Pandey v. State of U.P. reported in AIR 1981 SC 911 , the Supreme Court in paragraph 19 held that the Courts ought to overcome their traditional instinctive disbelieve in defence witnesses because quite often they told lies but so did the prosecution witnesses. In the said case, plea of alibi as regards non-presence of accused at the scene of offence by reason of his presence in another place was taken. It was held that such plea could succeed only if it was shown that the accused was so far away at the relevant time that he could not be present at the place where crime was committed. It was held therein that evidence of defence witnesses accepting it at its face value was consistent with the accused presence at the factory at 8.30 a.m. and at the scene of offence at 9 a.m. So short was the distance between two points and relying on the evidence of defence witnesses, the plea of alibi taken by the accused was rejected thereof. 22. 22. Insofar as delay of examination of witnesses by the IO under Section 161, Cr PC is concerned, it is established that the evidence of witnesses whose statement under Section 161, Cr PC was recorded after a long delay for instance 4-1/2 months without offering any explanation of such long delay when those witnesses even after knowing that the deceased left along with the appellants and was admitted in the Hospital in an injured condition was not coming forward to tell this fact, is unsafe to accept their evidence on the circumstances that the deceased was last seen alive in the company of the appellants. (See Paramjit Singh and Ors. v. State of Punjab and Ors. reported in AIR 1997 SC 1614 , para 7). 23. In the instant case, when PW 11 was examined on 9.3.1998 as per version of IO himself in his evidence, there was no reasonable and acceptable explanation by IO as to why PW 5 and PW 7 who were stated to be the eye-witnesses and according to their own version were first to inform PW 11 immediately or on the next day about the incident, was examined on 17.4.1998 after a gap of more than one month though according to them both of them were present at the time of occurrence and on next day also. 24. That being the position, it will not be safe to uphold the conviction and sentence of the appellants on the basis of deposition of these two eye-witnesses i.e. PW 5 and PW 7. 25. In view of what has been stated, discussed above, we are of the view that facts and circumstances in its entirety would persuade us to hold that appellants are entitled to get benefit of doubt and at the same time in our opinion prosecution has failed to prove its case beyond reasonable doubt. Consequently the impugned conviction and sentence of the appellants stand quashed and set aside. 26. Appellant No. 2 be set at liberty forthwith unless required in custody in connection with any other case. 27. It is stated at the bar the appellants Nos. 1 and 3 are already on bail. In view of the same, the bail bonds/of these appellants stand discharged. 28. In the result the appeal succeeds and stands allowed. 29. Sent down the LCR forthwith. Appeal allowed.