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2013 DIGILAW 49 (GAU)

Junia Debbarma v. State of Tripura

2013-01-29

SWAPAN CHANDRA DAS, UTPALENDU BIKAS SAHA

body2013
JUDGMENT Utpalendu Bikas Saha, J. 1. The appellant Junia Debbarma has been convicted under Section 365/326/302 read with Section 149 of the IPC and sentenced him to suffer rigorous imprisonment for three years for the offence under Section 365 IPC and five years for the offence committed under Section 326 read with Section 149 IPC and also to suffer life imprisonment and to pay a fine of Rs. 5,000/-, i.d. to payment of fine, to undergo further simple imprisonment for six months for the offence under Section 302 read with Section 149 IPC and all the sentences for the aforesaid offences were to run concurrently, and thus, this appeal aims at setting aside the conviction and sentence, as stated aforesaid, passed by the learned Addl. Sessions Judge, Khowai, West Tripura vide his judgment and order dated 24.09.2005 in S.T.61(WT/K) of 2002. Heard Mr. R. Datta, learned counsel appearing for the appellant and Mr. R.C. Debnath, learned Addl. PP appearing for the State respondent. 2. The prosecution version, as unfolded in the case is that on 15.09.1994 one Surendra Debbarma (PW 3) of Bahadur Chandra Para, Kakracherra under Teliamura P.S. lodged a written FIR with the Officer-in-Charge of Teliamura P.S. stating, inter alia, that having received an information that extremists had raided/attacked the village Keshab Chandra Para he rushed to the said village and found PW 5 Subodh Debbarma severely injured with bullet injury on his person and the villagers had started crying encircling him. PW 3 also stated in the FIR that he came to learn from the members of the family of the injured Subodh Debborma, PW 5, that in the evening a group of extremists came to their house and kidnapped PW 5, Subodh Debbarma as well as Dhan Chandra Debbarma, S/O Sri Kalanjoy Debbarma, PW 4, for the purpose of showing them the way towards Haldia and after some time the villagers on hearing the sound of gun firing went towards Haldia and found Subodh Debbarma, PW 5, on the road, severely injured with bullet injuries on his person and the extremists took away Dhan Chandra Debbarma. The villagers carried PW 5, Subodh Debbarma to Teliamura Rural Hospital for treatment wherefrom he was referred to GB Hospital, Agartala. 3. The villagers carried PW 5, Subodh Debbarma to Teliamura Rural Hospital for treatment wherefrom he was referred to GB Hospital, Agartala. 3. On being receipt of the aforesaid FIR, Sub-Inspector Budda Debbarma as duty officer of the Teliamura P.S. registered a specific case being Teliamura P.S. Case No. 122/1994 (corresponding to GR case No. 248/1994) under Sections 148/149/448/365/326 IPC and 27 Arms Act and set the criminal law in motion. The Officer-in-Charge of the Teliamura PS endorsed the aforesaid Police case to Sub Inspector Dhanakumar Kalai, PW 2 for investigation. 4. On completion of the investigation, the Investigating Officer (PW 2) of the case submitted charge sheet, on being satisfied that a prima facie case has been established under Sections 148, 448, 365, 326, 302 read with Section 149 IPC for killing Dhan Ch. Debbarma and for causing injury and kidnapping PW 5, Subodh Debbarma against the six accused persons, namely, 1. Deb Kr. Debbarma, 2. Barun Debarma, 3. Laxman Debbarma, 4. Junia Debbarma, 5. Hriday Debbarma and 6. Sushi Debbarma showing them absconder. On receiving charge sheet the Sub-Divisional Judicial Magistrate, Khowai took cognizance of the case under the aforesaid Sections of IPC and committed the case to the learned Addl. Sessions Judge, Khowai, West Tripura as the case was exclusively triable by the Court of Sessions. 5. The learned trial Court received the case records on commitment from the Court of learned Judicial Magistrate, First Class, Khowai for trial of the accused, namely, Deb Kr. Debbarma for commission of offence punishable under Section 148/149/448/365/326/302 IPC and cognizance of the said offences was taken. The accused Deb Kr. Debbarma was produced from JC and as he was not in a position to engage any lawyer to conduct the case on his behalf, ultimately he was provided with amicus curiae by the Court and on trial said Deb Kr. Debbarma was acquitted by the trial Court on 10.12.2002 and the proceeding against the remaining charge sheeted accused had been adjourned sine die by the committing Court. 6. Debbarma was acquitted by the trial Court on 10.12.2002 and the proceeding against the remaining charge sheeted accused had been adjourned sine die by the committing Court. 6. On 07.02.2005, the learned trial Court received a supplementary case record in connection with the aforesaid GR case No. 248/1994 from the Court of learned Judicial Magistrate, First Class, Khowai along with the accused-appellant Junia Debbarma who was arrested on 26.01.2005 on the strength of P/W/A. As the accused appellant submitted that he has no means to engage any lawyer for defending his case, the learned trial court appointed a lawyer to defend his case at the State expenses and ultimately, framed charges, which are as follows:- CHARGE I Shri S.C. Saha, Additional Sessions Judge, West Tripura, Khowai do hereby charge you- Junia Deb Barma, as follows:- Firstly, that you, on or about the 14th day of September, 1994, at about 1800/1830 hts., at Keshab Chandra Para, under Teliamura Police Station, were a member of an unlawful assembly and did in prosecution of the common object of that assembly, to wit rioting, commit offence of rioting with deadly weapons and that you thereby committed an offence punishable under Section 148 of the Indian Penal Code and within my cognizance: Secondly, that you, on the same date and at the same time and place as noted above, kidnapped Dhan Ch. Deb Barma and Subodh Deb Barma with the intention of causing them to be secretly and wrongfully confined and thereby committed an offence punishable under Section 365 of the Indian Penal Code and within my cognizance. Thirdly, that you, on the same date and at the same time and place as noted above, in furtherance of the common intention of you all, voluntarily caused grievous hurt to Subodh Deb Barma by fire-arm which is an instrument for shooting and that you thereby committed an offence punishable under SEC 326 r/w Section 149 of the Indian Penal Code and within my cognizance. Lastly, that you, on the same date and at the same and place as noted above, in furtherance of the common intention of you all. did commit murder by intentionally causing the death of Dhan Chandra Deb Barma and that you thereby committed an offence punishable under Section 302 r/w Section 149 of the Indian Penal Code and within my cognizance. did commit murder by intentionally causing the death of Dhan Chandra Deb Barma and that you thereby committed an offence punishable under Section 302 r/w Section 149 of the Indian Penal Code and within my cognizance. And, I hereby direct that you be tried by this Court on the said charges. 7. To prove the charges as framed against the accused appellant, the prosecution examined six witnesses including the official witnesses. The defence did not examine any witness being its case was of total denial. The accused was examined under Section 313 of the CrPC. After hearing the learned counsel for the parties, the learned trial Court taking note of the evidence on record convicted and consequent thereto passed the order of sentence, as stated supra. Hence, the appeal. 8. Mr. Dutta, learned counsel appearing on behalf of the accused-appellant while urging for setting aside the order of conviction and sentence, as impugned herein, would contend that one co-accused, namely, Deb Kr. Debbarma has already been acquitted and on 04.03.2005 the present accused appellant was produced before the trial Court from J.C. and admittedly he could not engage any lawyer, according to his own choice, and the trial Court after providing him a lawyer as Amicus Curiae on state expenses ultimately framed charges against him and on 11.8.2005 the witnesses namely, Surendra Debbarma, Kalanjoy Debbarma and Subodh Debbarma, i.e. PWs 3, 4 & 5 respectively were produced before the trial Court under arrest on the strength of a non-bailable warrant and they were cross-examined by the Amicus Curiae and the IO was also recalled for cross-examination. But from the records it would be evident that the appellant was not provided any opportunity to cross-examine PW1, PW 2 and PW6 and as a result of which the appellant was deprived from his legal right. He further submits that from the cross-examination of PW 2, Dhan Kumar Kalai, IO of the case, it would be evident that initially PWs. 4 and 5 did not disclose the names of any of the miscreants including the appellant herein and ultimately when they were shifted in a police camp they were again re-examined. He further submits that from the cross-examination of PW 2, Dhan Kumar Kalai, IO of the case, it would be evident that initially PWs. 4 and 5 did not disclose the names of any of the miscreants including the appellant herein and ultimately when they were shifted in a police camp they were again re-examined. under Section 161 and at that point of time they disclosed the name of the appellant Thus, the learned trial Court failed to consider the said aspect regarding the later statement implicating the appellant, which cannot be believed in accordance with law as the same was improved at a belated stage only to implicate the appellant He further submits that though the charge was framed under Section 27 of the Arms Act, but no arms were seized and not only that, the witnesses namely, Brajendra Debbarma and Bhakta Debbarma, who were the witness relating to seizure of wearing apparels of the injured were also not examined and not only that, the seized articles were also not proved and such non-examination of the witnesses and non-production of the seized articles create a doubt regarding the seizure in question which itself is a ground for setting aside the order of conviction. He further submits that though the corpse of deceased Dhan Chandra Debbarma was sent for post mortem examination and the post mortem was also conducted according to the prosecution, but the post mortem report was neither produced nor the Doctor who conducted the post mortem examination was examined and for such non production of the post mortem report creates doubt regarding the cause of death as to whether the same is homicidal or not. 9. He also submits that PW 3, Surendra Debbarma, in the FIR did not mention the name of any of the assailants including the appellant but in the cross-examination he has given an explanation that he did not disclose the names of the miscreants out of fear. 10. He submits that though PW 3, Surendra Debbarma lodged the FIR after 19 hours of meeting with PW 5, Subodh Debbarma, but he did not name anybody in the FIR including the appellant, meaning thereby that the appellant was not there in the extremist group and he was subsequently implicated by the PW 4 and PW 5, which ought not to have believed by the Trial Court. 11. 11. He further urges that the evidence of PW 4, Kalanjoy Debbarma, father of the deceased Dhan Chandra Debbarma is to be dis-believed on the ground that he had no opportunity of seeing the extremist group including the appellant while allegedly killing his son in the jungle and he also did not say anywhere in his evidence as to whether he was with the deceased Dhan Chandra Debbarma and PW 5, Subodh Debbarma while they were allegedly kidnapped. 12. He again contended that the disinterested neighbours who had assembled there to see the injured, PW 5, Subodh Debbarma were also not examined and there is also no evidence that the PW4, Kalanjoy Debbarma said the alleged occurrence of murder of his deceased son. More so, he is a interested and partisan witness for which also his evidence should be disregarded. In support of his aforesaid contention, he has placed reliance on the decision of Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh, AIR 2070 SC 760 : (2010) 2 SCC 748 , paragraph 18 wherein the Apex Court taking note of the facts of that case held that: it is very doubtful whether PW 4 was at all present at the place of occurrence having regard to the evidence of PW 3. Therefore, identification by PW 4 of the scooter and the accused, A-4 and A-5 in the TI parade becomes doubtful and no reliance can be placed on that. 13. He further submits that the prosecution is bound to lead the best evidence available to prove a certain fact and in the instant case it was the doctor who held the post mortem examination but the report of the post mortem examination is not available. Thus, the appellant is entitled to get the benefit of such non-availability of post mortem report. He has placed reliance on a decision of the Apex Court in Vijender Vs. State of Delhi, (1994) 6 SCC 171. He finally submitted that though PW 3 lodged the FIR but he was not the scribe of the said FIR which would be evident from his evidence and admittedly to prove the contention made therein neither the scribe nor the police officer who registered the case was examined. State of Delhi, (1994) 6 SCC 171. He finally submitted that though PW 3 lodged the FIR but he was not the scribe of the said FIR which would be evident from his evidence and admittedly to prove the contention made therein neither the scribe nor the police officer who registered the case was examined. As a result, the basis depending on which the prosecution case was initiated goes, therefore, the subsequent evidence of the other witnesses also cannot be relied upon for conviction of the accused-appellant. 14. Mr. R.C. Debnath, learned Addl. PP for the State while countering the submission of Mr. Datta and supporting the judgment of the trial Court would contend that the evidence of each and every criminal case should not be considered in the same way as there is a difference between the offence committed by a normal law breaker and the extremists. In an extremist violence case it is very difficult to get any evidence and even if sometimes evidence of witnesses are collected by the Investigating Officer but those witnesses are also normally reluctant to appear before the Court and disclose the fact identifying the accused due to fear psychosis and as the case in hand is a case of extremist violence it was very difficult for the Investigating Authority (PW 2) to get many witnesses and collect sufficient corroborative evidence to prove the prosecution case but then also the Investigating Officer was able to collect necessary evidence against the accused and ultimately filed charge sheet. He further contends that it would be proper for the Court to consider the aforesaid aspect while deciding a case like the one in hand wherein the offence, is committed by an extremist group. In support of his aforesaid contention he has placed reliance on a decision of the Apex Court in the case of Tarun Bora @ Alok Hazarika Vs. State of Assam, reported in 2002 CriLJ 4076. 15. He further submits that in the instant case admittedly, PW 3 is not an eye-witness, only PWs 4 & 5 are the eye witnesses and it would not be proper for this Court to disbelieve the evidence of those witnesses only on the ground that at the initial stage none of them disclosed the name of the accused-appellant. 15. He further submits that in the instant case admittedly, PW 3 is not an eye-witness, only PWs 4 & 5 are the eye witnesses and it would not be proper for this Court to disbelieve the evidence of those witnesses only on the ground that at the initial stage none of them disclosed the name of the accused-appellant. According to him, PWs 4 & 5 did not disclose the name of the accused at the initial stage as at that time they were living in an extremist area and subsequently when they were taken to a police camp and felt secured, they disclosed the name of the appellant. 16. He further submits that this is not the case of the defence that they did not get the copy of the 161 statement by which PWs 4 & 5 were reexamined. He again submits that the post mortem report is not always necessary as the post mortem report is the finding of an expert wherein opinion is given about the cause of death, more so, the same is not a substantive evidence, rather an opinion evidence. In support of his aforesaid contention, he placed reliance on a decision in the case of Shyam Narayan Singh & Ors. Vs. State of Bihar, 1993 CriLJ 772 as well as the decision in the case of Kehar Singh Vs. State (Delhi Administration), AIR 1988 SC 1883 wherein the Apex Court observed: In view of such clear evidence about the cause of death, the post-mortem examination loses all its suggestions. It becomes important only in cases where the cause of death is to be established and is a matter of controversy. 17. The Apex Court further observed in para 320 of the said report, It is not always necessary to have a complete post- mortem in every case. Section 174 of the Code confers discretion to the police officer not to send the body for post-mortem examination it there is no doubt as to the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the postmortem done by the medical officer. Section 174 of the Code confers discretion to the police officer not to send the body for post-mortem examination it there is no doubt as to the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the postmortem done by the medical officer. In the instant case, the post mortem report could not be submitted by the prosecution as the doctor who conducted the post mortem on the dead body of the deceased, committed suicide on the following day of post mortem examination and as such no paper was also found. Thus, non production of the post mortem report and non-examination of the doctor was beyond the control of the prosecution. 18. He finally contended that in the instant case, PW 5, Subodh Debbarma, who is an eye witness and an injured, his evidence, should not be dis-believed. According to him, PW 5, Subodh Debbarma is a trustworthy witness who stated that Junia Debbarma was one of the members of the extremist gang which fired on him and also killed Dhan Chandra Debbarma by firing from fire arm. Therefore, the association of the appellant with the extremist group is established and PW 4, Kalanjoy Debbarma also should not be disbelieved only on the ground of his subsequent statement under Section 161 as he specifically stated that members of the extremist group kidnapped his son, deceased Dhan Chandra Debbarma along with PW 5, Subodh Debbarma and they shot at Subodh Debbarma and left him on the road but dragged away his son and killed him in a jungle and he could identify Junia Debbarma, Laxmi Debbarma, Bijoy Debbarma, Hriday Debbarma and Benu Debbarma though they are not in the Court and in cross-examination this witness also stated that the extremists trespassed into his house and kidnapped his son and they were armed with fire arms. 19. Before appreciating the submission of the learned counsel for the parties, it would be proper on our part to go on scanning the evidence of the witnesses, particularly, PWs 3, 4 and 5 as these witnesses are the star witnesses for the prosecution. 20. PW 3, Surendra Debbarma has stated in his evidence, while the co-accused, Deb Kr. 19. Before appreciating the submission of the learned counsel for the parties, it would be proper on our part to go on scanning the evidence of the witnesses, particularly, PWs 3, 4 and 5 as these witnesses are the star witnesses for the prosecution. 20. PW 3, Surendra Debbarma has stated in his evidence, while the co-accused, Deb Kr. Debbarma was tried on 10.12.2002, that about six years back on certain afternoon a group of extremists assaulted Subodh Debbarma, PW 5 and Dhan Chandra Debbarma and they shot at Subodh Debbarma, PW 5 and kidnapped Dhan Chandra Debbarma and thereafter he lodged the Ejahar in the Teliamura PS. In his reexamination at the time of trial of the present appellant he sticked to his evidence given earlier before the Court on 10.12.2002 and identified the accused-appellant as one of the member of the extremist group and in his cross he had given explanation for non-mentioning the name of the accused-appellant in the FIR i.e. due to mistake he had omitted to mention the name of the accused. 21. PW 4, Kalanjoy Debbarma, father of the deceased Dhan Chandra Debbarma and an eye-witness, in his evidence stated that some members of the extremist group kidnapped his son, deceased Dhan Chandra Debbarma along with PW 5, Subodh Debbarma and they shot at Subodh Debbarma and left him on the road but they dragged his son Dhan Chandra Debbarma and killed him in the jungle and he could identify, Laxmi Debbarma, Bijoy Debbarma, Hriday Debbarma, Junia Debbarma and Benu Debbarma and in his re-examination he has confirmed his earlier statement on 10.12.2002 and also identified the accused Junia Debbarma. In his cross, he specifically stated that the extremists trespassed into his house at about 5.00 and kidnapped his son and the extremists were armed with fire arms. He also stated that extremists shot dead his son at a distance of 4/5 kms from his house and he cannot say who shot his son. He had denied the suggestion that the accused Junia Debbarma was not one of the members of the extremist gang which kidnapped his son. He also stated in his cross that prior to kidnapping his son the extremists also beat him for which he became unconscious. 22. He had denied the suggestion that the accused Junia Debbarma was not one of the members of the extremist gang which kidnapped his son. He also stated in his cross that prior to kidnapping his son the extremists also beat him for which he became unconscious. 22. This witness though stated that he could identify the aforesaid members of the extremist group but he could not identify who caused the death of his son. More so, even when he was allegedly beaten by the extremists he could not identify who has beaten him. Not only that, he also did not disclose the name of the appellant Junia Debbarma to any of the witnesses who surrounded PW 5 before his alleged reexamination under Section 161 CrPC. Thus, taking into account the aforesaid factual background, it is very difficult to come to a conclusion as to whether he had seen the appellant Junia Debbarma at the place of alleged occurrence. Therefore, identification of the appellant Junia Debbarma by this witness is very much doubtful. 23. PW 5, Subodh Debbarma, in his evidence stated that extremists kidnapped him along with Dhan Chandra Debbarma and they shot at him and carried Dhan Chandra Debbarma. He could identify Hriday Debbarma, Sushi Debbarma, Laxmi Debbarma, Junia Debbarma, and Benu Debbarma who were the members of the extremist group. He sticked to his evidence recorded on 10.12.2002 and also identified the accused-appellant in the dock. He also stated that he received bullet injury on his left arm and belly as one of the extremist fired a shot at him and consequent thereto the bullet rested on his belly which was brought out by operation. He also stated that accused-appellant was one of the members of the extremist gang which fired at him and also killed Dhan Ch. Debbarma by firing from fire arms. In his cross he has stated that the extremists fired on him and Dhan Ch. Debbarma at a distance of about 7/8 kms from his house near a ditch at around 7/8 p.m. when it was dark and he could not identify the particular person who fired on him in the darkness. He denied the suggestion of the defence that the accused-appellant Junia Debbarma was not one of the members of the extremist gang and subsequently fired on him and Dhan Ch. Debbarma. 24. He denied the suggestion of the defence that the accused-appellant Junia Debbarma was not one of the members of the extremist gang and subsequently fired on him and Dhan Ch. Debbarma. 24. This witness also initially did not disclose the name of the accused-appellant before the IO of the case while he was initially examined under Section 161 CrPC. He has only disclosed the name of the accused-appellant during his re-examination at a belated stage, i.e. after about 19 days while he was re-examined under Section 161 and subsequently before the trial Court. This witness also did not disclose the name of the accused-appellant before anybody which is wholly unnatural though PW 3, Surendra Debbarma in his evidence stated that this witness had disclosed the name of the accused-appellant before him. When a person is either rebuked or injured or assaulted by any person then in the ordinary course of human nature that man would at the first instance disclose the name of the assailants to the persons with whom he meets immediately after the alleged occurrence but in the instant case admittedly this witness did not disclose the name of the accused-appellant to any of the persons surrounding him after hearing his cry, i.e. at the first instance. More so, this witness in his cross stated that he could not identify any particular person who fired at him due to darkness. Thus, it can also be presumed that he was not in a position to identify the accused-appellant as a member of the extremist group. Had he been able to identify the accused-appellant, he would have disclosed the name of the accused-appellant, at the first instance, before PW 3 who lodged the FIR after meeting him, and PW 3 would also have disclosed the same in the FIR, but fact remains that PW 3 did not disclose any name of the assailant/miscreant including the name of the accused-appellant in the FIR. Thus, the evidence of this witness also is not beyond the shadow of doubt. 25. It is not necessary to discuss about the evidence of PW 6 being he was only the witness of inquest of deceased Dhan Chandra Debbarma. 26. Thus, the evidence of this witness also is not beyond the shadow of doubt. 25. It is not necessary to discuss about the evidence of PW 6 being he was only the witness of inquest of deceased Dhan Chandra Debbarma. 26. PW 1 is the Doctor who examined PW 5, Subodh Debbarma and found that PW 5 sustained bullet injury and the entry point of the injury was found in the dorsal aspect of the left elbow measuring 2 1/2" and he also identified the injury report submitted by him which is exhibited as Exhibit 1 and 1/1. 27. PW2 is the IO of the case, who has prepared the Hand Sketch Map and seized the wearing apparels of the deceased preparing the seizure list and also prepared the inquest report, who has stated that he could not collect the post mortem examination report of the deceased Dhan Chandra Debbarma as the Medical Officer who held the post mortem examination on the body of deceased Dhan Chandra Debbarma committed suicide before preparation of the post mortem report. In his cross, he stated that PW 4 and PW 5 initially did not disclose the name of the miscreants out of fear but during their re-examination they disclosed the names of the assailants. 28. In Vijender (supra) the Apex Court while discussing regarding the non-production of the original post mortem report and non-examination of the doctor who has done the autopsy in that case observed as under:- 79. It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the postmortem examination. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the postmortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post-mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of PW 21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since, the copy of the post-mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also. 29. In the instant case, admittedly the Doctor had committed suicide on the following day of the date the autopsy was done. Thus, naturally it was not possible on the part of the prosecution to either examine the doctor or to place the post mortem report and it is also settled that in each and every case it is not necessary to send the dead body for post mortem but at the same time it cannot be ignored that in absence of the evidence of the doctor who had done the autopsy as well as in absence of the post mortem report, cause of death cannot be ascertained in absence of direct evidence. In the instant case, there is no direct evidence so far the gunshot on deceased Dhan Chandra Debbarma by the extremists, including the accused-appellant is concerned. 30. In the instant case, there is no direct evidence so far the gunshot on deceased Dhan Chandra Debbarma by the extremists, including the accused-appellant is concerned. 30. In a case of murder it is the duty of the prosecution to first establish homicidal death and for which either direct evidence or the expert evidence regarding the cause of death is required but in the instant case, though there is direct evidence regarding kidnapping by the extremist group and gunshot to the PW 5 but there is no direct evidence regarding gunshot at the deceased nor the expert evidence is available to establish the homicidal death of the deceased, thus, the cause of death of the deceased is not established by the prosecution. In such a situation, it is very difficult for a Court to come to a conclusion that the deceased Dhan Chandra Debbarma was killed by the appellant who was allegedly a member of the extremist group by way of gunshot, more particularly, when the fire arm is also not produced before the Court due to non-seizure of the same. 31. In the case of Shyam Narayan Singh & Ors. (supra), a Division Bench of the Patna High Court has considered the fact of non-examination of the doctor who performed the post mortem examination or examined the injuries of the victim of assault in the occurrence and noted, inter alia, that: A doctor, like investigating officer, is also a material witness, as he performs the postmortem examination or examines the injuries of the victims of assault in the occurrence and so his evidence is also an important one in appreciating the evidence of the eye-witnesses. The evidence of the medical men, who during the course of post- mortem examination or examination of the injuries of an injured on touching the injuries is a corroborative one. It gives out, on touching the injuries, about the nature of the injuries caused, how caused and by which weapon, time of injuries and duration of injuries, cause of death and such other details, which help the Court in appreciating the ocular account of the occurrence or circumstances under which the injuries, fatal or otherwise, have been caused. Doctors observations are opinion of the expert in this branch on that subject. Doctors observations are opinion of the expert in this branch on that subject. These reports help the investigating officer in the investigation about the cause of death, the nature of injuries, how they were caused, and who might have caused the same. The injury report and post-mortem report form part of the police papers and are produced before the Court by the police along with the report of investigation for or against an accused. The value of the report, whether post-mortem report/injury report, is only corroborative and it only shows as to how the injury was caused. The accused can use the same to show that the injuries could not have been caused in the manner as alleged by the prosecution. The postmortem report/injury report, can be best judged when the author of the report i.e. doctor, who had occasion to examine the deceased/injured and prepare his report of opinion, is examined in Court. But the doctor's absence is also a general trend these days, like that of the investigating officer. The Doctors also do not appear in the Court in spite of best efforts by the prosecution as well as the Courts. Therefore, the Court should also adopt the procedure laid in Sections 350, 242(2), 244(2) or 254(2) of the Code as the situation may be. He should also resort to the provisions of Section 69 of the Code. Even coercive measures should be adopted in suitable situations if it is found that the doctor in spite of service of summons is avoiding appearance in Court for some ulterior motive and there is no slackness on the part of the prosecution in spite of repeated opportunities being given to the prosecution. At times, the Court should exercise its powers under Section 311 of the Code by calling the medical witness, so that prosecution may establish that injuries were caused in the manner alleged and the defence may also cross-examine him to show to the Court that the injuries could not have been possible to be caused in the manner alleged and that the possibility of the version given by the prosecution is completely ruled out. 32. In the said judgment, the Patna High Court had also taken note of the case of Bhupath Vs. State, 1975 CriLJ 1405 wherein it is stated that: the notes of P.M. could be admissible when the doctor was examined. 32. In the said judgment, the Patna High Court had also taken note of the case of Bhupath Vs. State, 1975 CriLJ 1405 wherein it is stated that: the notes of P.M. could be admissible when the doctor was examined. The Division Bench also took note of the case of Kehar Singh (supra) at para 42 wherein the Apex Court observed: In view of such clear evidence about the cause of death, the post-mortem examination loses all its suggestions. It becomes important only in cases where the cause of death is to be established and is a matter of controversy. The Apex Court further observed in the aforesaid case, It is not always necessary to have a complete post-mortem in every case. Section 174 of the Code confers discretion to the police officer not to send the body for post-mortem examination if there is no doubt as to the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the postmortem done by the medical officer. 33. From the aforesaid decision of the various High Courts and the Apex Court, it can be said that the post mortem examination is not necessary for all cases, particularly, where the direct evidence regarding the cause of death is available. But in a case where the cause of death is not known or is in doubt then obviously post mortem examination is required upon the corpse and in absence of such post mortem examination it is very difficult to ascertain the cause of death. In the instant case, though the corpse of the deceased was sent for post mortem but due to suicidal death of the doctor who had done the post-mortem, the investigating officer could not collect the post mortem report and also could not place the same before the Court for proving the cause of death. As a result, the accused- appellant was deprived from his valuable right to cross-examine the prosecution witnesses regarding the cause of death. Not only that, the prosecution also failed to prove the cause of death. 34. As a result, the accused- appellant was deprived from his valuable right to cross-examine the prosecution witnesses regarding the cause of death. Not only that, the prosecution also failed to prove the cause of death. 34. On scrutiny of the evidence of PWs 1, 2 & 6 it appears that PW 2, IO of the case was cross-examined by the accused-appellant though PW 1 and PW 6 were not cross examined and produced before the trial Court and there was also no attempt either from the prosecution or from the Court for production of PWs 1 and 6 when the trial of the accused-appellant was there to cross-examine and as a result the accused-appellant did not get any opportunity to cross-examine. PW 1 is the Medical Officer who has examined PW 5 and stated regarding the injury found by him on the body of PW 5. PW 6 is a seizure witness. There is no doubt that non-production of PW I and PW 6 for cross examination obviously curtailed the valuable right to the accused-appellant but as those witnesses did not implicate the accused-appellant he is in no way prejudiced. 35. In Tarun Bora @ Alok Hazarika (supra) the Apex Court observed, inter olio, that: It is quite but natural that in a prevalent situation, obtaining in the area surcharged with the insurgency activities, striking a terror and fear psychosis in the mind of the people, the investigating officer would definitely find difficulties to collect sufficient corroborative evidence. Witnesses will be reluctant to come to the Court to depose or appear before the Investigating Officer to give statement for fear of reprisals. Rarely, one comes across any corroborative evidence in such type of offence. This would be no ground to throw away otherwise trustworthy evidence of prosecution witnesses. In the facts and circumstances of the present case, as adumbrated above, coupled with the credible and trustworthy statement of P.W. 1, Bhola Kakati, the prosecution has established its case. It must be remembered that the statement-in-chief of P.W. 7 remained unimpeached. We have no reason to doubt the creditworthy evidence of Bhola Kakati-PW4, apart from the other lending circumstances as discussed above. It must be remembered that the statement-in-chief of P.W. 7 remained unimpeached. We have no reason to doubt the creditworthy evidence of Bhola Kakati-PW4, apart from the other lending circumstances as discussed above. From the evidence of PW 1 of that case, it appears that he was taken away in the Ambassador Car by the appellant Tarun Bora and after that he was immediately blind folded and taken to a house and confined for three nights, meaning thereby that the appellant himself was a member of the extremist group and a participant to the offence and not only that, the appellant Tarun Bora was also named in the FIR lodged by the PW 6 of that case with the Officer-in-Charge of Bihpuria Police Station wherein it is stated that on 18.08.1991 at about 3.45 pm. Bhola Kakoti (PW 1), a resident of Fakrahi Village, was taken away from the house of Nandeswar Bora, a resident of the same village by ULFA extremist named Tarun Bora @ Alok Hazarika with the help of 3-4 members of ULFA extremists by blindfolding him in a white ambassador car. Ultimately, the Apex Court, taking note of the entire facts and circumstances, set aside the conviction under Section 3(1)/3(5) of Terrorist and Disruptive Activities (Prevention) Act, and confirmed the order of conviction and sentence to the appellant for the offence under Section 365 IPC. In the instant case, the accused-appellant was not FIR named and his name was also not disclosed by the PW 3 at an early stage. Only in cross, he had given certain explanation and PWs 4 and 5 also did not disclose the name of the accused-appellant at the first instance while they were examined under Section 161 CrPC but disclosed the name of the appellant at a belated stage while they were re-examined in the CRPF camp and we have already expressed our opinion regarding such belated statement. Not only that, the fact of Tarun Bora @ Alok Hazarika (supra) is totally different and in that case direct evidence against the appellant was available at the first instance and in the instant case neither PW 4 nor PW 5 disclosed the name of the accused-appellant at the first instance though it is human nature that when a person is injured or his relation is killed, he discloses the name immediately to the person who met with him or the person who assembled there. In view of the above, the case of Tarun Bora @ Alok Hazarika (supra) would in no way help the prosecution as by this time it is settled that the decision in a criminal case ipso facto would not be a precedent as mainly criminal, case is to be decided considering the facts involved therein. 36. It appears from the judgment of the learned trial Court that the learned trial Court also noted inter alia, that: On careful scrutiny of the case record it is found that after the incident of kidnapping and murder, the PW. 4, who was the only eye witness to the occurrence, was under serious threat from the kidnappers, for which the said witness in his statement recorded under Section 161 Cr.P.C. immediately after the incident did not disclose the names of the accused. PW 4 disclosed the names of the kidnappers only when he shifted his residence from Keshob Ch. Para to Kakracherra. I think due to threatening offered by the extremists the witnesses initially did not dare to disclose the names of the kidnappers to the police. PW. 4, Kalanjoy Deb Barma disclosed the names of the kidnappers during his reexamination under Section 161 Cr.P.C. only when he left the village and took shelter in a C.R.P.F. camp. It is seen that PW. 3, in his cross-examination, has stated that PW. 5 disclosed the name of accused Junia Deb Barma to him as one of the members of the extremists gang which kidnapped and assaulted him, but he had mistakenly omitted to mention his name in the F.I.R. I think this was not the just cause for non mentioning the names of the kidnappers in the F.I.R. Perhaps, due to the threatening offered by the militants, the informant did not dare to disclose the names of the kidnappers in the F.I.R. for fear of his life. 37. 37. PW 3 and PW 4 in there evidence nowhere stated that they did not disclose the name of the accused-appellant at the first instance either due to fear or threatened by the extremists. It is only PW 2, IO of the case who in his cross stated that PW 4 and PW 5 initially did not disclose the names of the militants out of fear. Thus, according to us, the findings of the trial Court to the extent that PW 4 did not disclose the name of the accused-appellant due to threatening offered by the extremists, has no basis. 38. Regarding the contention of the learned counsel Mr. Datta relating to non-proving of FIR, we are of the considered opinion that it is a settled position of law that for mere non-proving of the contention in the FIR, the accused is not entitled to acquittal if there are other evidences for believing the prosecution case. In the instant case, the prosecution has examined the informant PW 3 who in his evidence before the Court affirmed the contention in the FIR and also proved his signature therein. Thus, for non-examination of the scribe of the FIR, the prosecution case cannot be wholly dis-believed if otherwise some evidences are available. Our aforesaid views also get support from the decision of the Apex Court in Krishna Mochi & Ors. Vs. State of Bihar, reported in (2002) 6 SCC 81 wherein the Apex Court, considering the facts of that case noted, inter alia, that: It has been further submitted that the informant, Satendra Kumar Sharma has not been examined as such, the first information report cannot be used as a substantive piece of evidence inasmuch as on this ground as well the appellants are entitled to an order of acquittal. The submission is totally misconceived. Even if the first information report is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution. Therefore, non- examination of the informant cannot in any manner affect the prosecution case. (Emphasis supplied) 39. In a criminal trial, the degree of proof is always stricter than what is required in a civil proceeding and the prosecution is not exempted from proving their case beyond any shadow of reasonable doubt as the burden is always with the prosecution to prove its case. (Emphasis supplied) 39. In a criminal trial, the degree of proof is always stricter than what is required in a civil proceeding and the prosecution is not exempted from proving their case beyond any shadow of reasonable doubt as the burden is always with the prosecution to prove its case. In the case of State of West Bengal Vs. Orilal Jaiswal & Anr., (1994) 7 SCC 73 the Apex Court noted that: we are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial, however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is not absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater Vs. Bater ((1950) 2 All ER 458, 459) has observed that the doubt must be of a reasonable man and the standard adopted must be adopted by a reasonable and standard man for coming to a conclusion considering the particular subject-matter. 40. It also appears from the evidence of the prosecution that its case is mainly resting on circumstantial evidence and testimonies of PW 4 and PW 5 who were alleged eye witnesses of the occurrence. The Apex Court in Govinda Reddy Vs. State of Mysore, reported in AIR 1960 SC 29 held as under:- 10.......in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. State of Mysore, reported in AIR 1960 SC 29 held as under:- 10.......in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused. 41. The Apex Court also considered the aforesaid principle and has been followed in Mohan Lal Pangasa Vs. State of U.P. reported in AIR 1974 SC 1144 . 42. The evidence of PW 3, PW 4 and PW 5 if taken together, in our view, the prosecution established a case of kidnapping of PW 5 and deceased Dhan Chandra Debbarma as well as injury to the person of PW 5 and killing of the deceased by the extremist but we are unable to be persuaded by the plea taken on behalf of the prosecution that the accused-appellant was one of the members of the extremist group who has allegedly committed the offence. More so, as we have already discussed that neither PW 3, the informant disclosed the name of the accused-appellant at the first instance when he lodged the FIR with the police, nor PW 4 and PW 5 disclosed the name of the accused-appellant while first time the PW 2 recorded their statements under Section 161 CrPC, rather it is the admitted position that they have stated that the PW 4 disclosed the name of the accused-appellant for the first time after 19 days when he was in the CRPF camp and PW 5, who was allegedly injured by way of gunshot by the extremists, also disclosed the name of the accused-appellant when he was re-examined by the IO. Thus, such disclosure of the name of the accused-appellant at the belated stage creates a doubt regarding the case of the prosecution and involvement of the accused-appellant. Thus, such disclosure of the name of the accused-appellant at the belated stage creates a doubt regarding the case of the prosecution and involvement of the accused-appellant. In the result, the accused-appellant is entitled to get the benefit of doubt. 43. In view of the above, we have no other alternative except to set aside the order of conviction and sentence as impugned and acquit the accused-appellant from the charges leveled against him. We order accordingly. In the result, the impugned judgment and order is set aside and the appeal is allowed. The accused-appellant would be set at liberty forthwith if he is not wanted in any other case. Send down the LCR. Appeal allowed