Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 638 (GAU)

Babulal Bairowa v. State of Assam

2013-08-30

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Dr. Indira Shah, J. 1. By judgment and order, dated 11.6.2009, passed, in Sessions Case No. 276/2001, by the learned Additional Sessions Judge (FTC), Kamrup, Guwahati, the accused-appellant, Babulal Bairowa, stands convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs. 2000/- and, in default of payment of fine, suffer rigorous imprisonment for six months. We have heard Mr. S. Chamaria, learned counsel for the appellant, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 2. The case of the prosecution may, in brief, be described thus: (i) A camp of the CRPF Battalion stood located within the campus of Chhaygaon Police Station. In the said Battalion, accused, Babulal, was posted as a Constable. (ii) On 20.11.1997, at about 10.00 P.M., the accused, while performing his duties, as a sentry, at Murcha No. 1, located at the gate of the said police station, opened fire indiscriminately from his LMG, which is a prohibited arm, causing injuries to several CRPF personnel, namely, Havildar Srikumar, Lance Naik Driver K. Hussain Ali, Lance Naik L. Thangzalung and Rameswar Orang. Immediately thereafter, the accused fled away from the CRPF camp, taking along one 7.62 mm LMG Butt No. 20.9 mg. with 247 rounds of 1.62 ammunition, one SLR Butt No. 214 with 3 magazines and 60 rounds of 7.62 ammunition. Though the CRPF personnel searched for the accused, they could not trace him out. The injured were shifted to hospital. While Rameswar Orang survived, Havildar Srikumar, Lance Naik K. Hussain Ali and Lance Naik L. Thangzalung succumbed to their respective injuries. A written Ejahar was lodged by Head Constable, Rup Sadan, at Chhaygaon Police Station before the death of the CRPF personnel. Based on the said Ejahar and treating the same as First Information Report (in short, FIR), Chhaygaon Police Station Case No. 214/1997, under Sections 326/307/382 read with Section 27(2) of the Arms Act, was registered and, on the third day, i.e., on 22.11.1997, on vigorous search, the accused was apprehended, along with arms and ammunitions, from inside the Library Hall of Srimanta Sankardev Kalakristi Vikash Kendra. 3. On completion of investigation, police submitted the charge-sheet, under Sections 302, 324, 307 and 382 IPC read with Section 27(2) of the Arms Act. 4. 3. On completion of investigation, police submitted the charge-sheet, under Sections 302, 324, 307 and 382 IPC read with Section 27(2) of the Arms Act. 4. The accused pleaded not guilty to the charges framed against him under Sections 302, 324, 307 and 382 IPC read with Section 27(2) of the Arms Act and claimed to be tried. 4a. During trial, prosecution, in support of its case, examined altogether 22 witnesses. The accused, in his statement, recorded under Section 313 Cr.P.C., denied the allegations levelled against him and pleaded that he was innocent. The defence case was of total denial. No evidence was adduced by the defence. 5. Having come to the conclusion that the charges, framed against the accused-appellant, stood proved beyond reasonable doubt under Section 302 IPC, the learned trial Court convicted the accused accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal. 6. Appearing on behalf of the accused-appellant, Mr. S. Chamaria, learned counsel, has submitted that the prosecution miserably failed to establish that the accused was found in possession of arms and/or that he had opened fire on the night of the occurrence. In this regard, it is also pointed out by Mr. Samaria, learned counsel, that Rameswar Orang, though a material witness, was not examined at the trial and, hence, the learned trial Court ought to have inferred that had Rameswar Orang been examined, his evidence would not have supported the prosecution's case. At any rate, therefore, according to Mr. Chamaria, the accused-appellant ought to have been given, at least, benefit of doubt 7. Per contra, the learned Addl. Public Prosecutor has submitted that the prosecution well proved that the accused was on sentry duty at the relevant point of time, he was not only seen shooting from LMG, but he also ran away with fire arms and absconded and it was only after three days of the occurrence that the accused was found and apprehended. This apart, points out the learned Addl. Public Prosecutor, the empty cartridges have also been recovered from the room of the accused, i.e., the place where the accused was on duty. 8. Before entering into the merit of the case, one needs to refer to the evidence of PW 1 (Dr. Kanak Ch. This apart, points out the learned Addl. Public Prosecutor, the empty cartridges have also been recovered from the room of the accused, i.e., the place where the accused was on duty. 8. Before entering into the merit of the case, one needs to refer to the evidence of PW 1 (Dr. Kanak Ch. Das), who performed post mortem examinations on the dead bodies of Srikumar Das and K. Hussain Ali. 9. On examination of the dead body of Srikumar, the doctor (PW 1) found as follows:- A. A male dead body wearing one ganji and one under wear, both eyes partly opened mouth partly opened, anus, penis healthy, rigor mortis is present all over the body, body was cold on touch. B. Injuries: I. One lacerated injury present on the medial side of right knee joint size 16 c.m. x 20 c.m. x muscle deep. II. One lacerated injury on right forearm lower part of size 4 c.m. x 3 c.m. x (illegible) muscle deep. III. One lacerated injury on the right forearm upper part of size 6 c.m. x 4 c.m. x muscle deep. IV. One bullet entry wound with irregular and inverted margins, surrounded by abraded collar measuring 3 c.m. x 2 c.m. x muscle deep located on the lateral side of left knee joint. The bullet passed through the skin, muscle, the knee joint and gives rise to an exit wound on the medial side of the knee joint measuring 10 c.m. x 6 c.m. with lacerated and averted margins. The direction is left to right. V. One bullet entry wound with irregular and invoked margins surrounded abraded collar measuring 2 c.m. x 1 c.m. located on the wound side of the left thigh. Lower part 4 c.m. above the knee joint. The bullet passes through the skin, muscles, bones and give rise to exit wound on the medial side of the thigh lower part measuring 7 c.m. x 6 c.m. with lacerated and everted margins one c.m. above the knee joint the direction left to right. VI. One bullet entry wound with irregular and inverted margins surrounded by abraded collar measuring 2 c.m. x 1 c.m. located on the upper part of the left thigh on lateral side 30 c.m. below the eliac chest. VI. One bullet entry wound with irregular and inverted margins surrounded by abraded collar measuring 2 c.m. x 1 c.m. located on the upper part of the left thigh on lateral side 30 c.m. below the eliac chest. The bullet passes through the skin, muscles, and give rise to exit wound on the medial side of the left thigh middle part measuring 3 c.m. x 2 c.m. with lacerated and averted margins. The direction left to right and above to downward. VII. One bullet entry wound with irregular and inverted margins surrounded by abraded collar measuring 2 c.m. x 3 c.m. x chest cavity deep situated at right side of the chest wall 25 c.m. right from and line and 6 c.m. right and below from right nipple. The bullet passes through chest wall, phura, right lung and then gives rise to exist wound on the enterior chest wall measuring 4 c.m. x 3 c.m. with lacerated and averted margins situated 2 c.m. right from mid line and 8 c.m. below the right nipple. The direction is right to left and from back to front. VIII. One bullet entry wound with irregular and inverted margins surrounded by abraded collar measuring 2 c.m. x 1 c.m. x abdominal cavity deep, situated at right side of abdomen 14 c.m. right from mid line and 16 c.m. below the right nipple. The passes through abdominal wall, peritoneum, stomach, intestine, measuring spleen, and left abdominal wall giving rise to exit wound on the left side of abdominal wall of size 3 c.m. x 2 c.m. with lacerated and averted margins situated 20 c.m. left from mid line, 18 c.m. below the left nipple. The direction is from right to left and above to downwards @ Viscera was preserved for chemical examination. 10. The post mortem examination, conducted on the dead body of Lance Naik K. Hussain Ali, revealed as follows:- (A). The body is of brown complexion, average built male dead, wearing one ganji, one lungi and one under wear, eyes opened, mouth partly opened, rigor mortis present all over the body, anus and penis healthy. The body is cold on touch. (B). The body is of brown complexion, average built male dead, wearing one ganji, one lungi and one under wear, eyes opened, mouth partly opened, rigor mortis present all over the body, anus and penis healthy. The body is cold on touch. (B). Injury: (i) One lacerated injury present on the medial side of the right knee joint size 10 c.m. x 6 c.m. (ii) One bullet entry wound with irregular and inverted margin surrounded by abraded collar measuring 4 c.m. x 2 c.m. x muscle deep located on lateral side of the left leg upper part 10 c.m. below the left knee joint the bullet passes through skin, muscles bone and gives rise to exist wound on the medial side of the left leg upper part measuring 5 c.m. x 3 c.m. with lacerated and everted margin. Direction is left to right and below to upwards. (iii) One bullet entry wound with irregular and inverted margins surrounded by abraded collar measuring 3 c.m. x 1.5 c.m. x abdominal cavity deep, located on the back of abdomen, right side 11 c.m. right from mid vertebrae line and 14 c.m. above the eliac chest. The bullet passes through the posterior abdominal wall, peritoneum, right kidney, intestine, liver, left lung and lodged on the anterior chest wall left side inside the muscles and the bullet is recovered during dissection. The direction is from right to left side back to front and below upwards. The size of the recovered bullet is 0.6 c.m. x 2.3 c.m. partly deformed having five land marks on the body which are twisted to the right side. After putting initialed the bullet was put in a plastic bottle and sealed and labelled and kept to be handed over to investigating officer for investigation. The bullet and the wearing garments were handed to escorting constable after post mortem examination. The viscera was preserved for chemical analysis. 11. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of rifle fire arm injuries described above, which were ante mortem and homicidal in nature. 12. The findings of the doctor (PW 1), who conducted post mortem examinations on the dead bodies of Srikumar Das and Lance Naik K. Hussain Ali, and his opinion with regard to the causes of death of Srikumar Das and Lance Naik K. Hussain Ali, have remained undisputed. 12. The findings of the doctor (PW 1), who conducted post mortem examinations on the dead bodies of Srikumar Das and Lance Naik K. Hussain Ali, and his opinion with regard to the causes of death of Srikumar Das and Lance Naik K. Hussain Ali, have remained undisputed. This apart, we, too, do not find anything inherently improbable or incorrect in the findings of the doctor and/or in his opinion with regard to the causes of death. 13. P.W. 2 (Dr. Pratap Ch. Sarmah), who conducted post mortem examination on the dead body of Lance Naik L. Thangzalung, found as follows:- (A). A male dead body of average built, body looked pale, blood stains present on the different place of the body, rigor mortis present all over the body. (B). Injury: (i) One bullet entry wound size 0.8 c.m. x 0.6 c.m. x muscle deep present on outer aspect of right forearm having exist wound (No. II) measuring 6 c.m. x 4.5 c.m. on front of right forearm. (ii) a bullet wound 1 c.m. x 0.8 c.m. x muscle deep present on front of abdomen 9 c.m. below the right nipple having its exit wound (No. IV) measuring 4 c.m. x 2 c.m. on the right side of abdomen 10 c.m. below and right to entry wound (No. III). (v) a bullet entry wound size 1.5 c.m. x 1 c.m. x into abdomen cavity deep present on left side of the abdomen at 6 c.m. above the enterior superior iliac spine on left side having exist wound (wound vi No. 6) measuring 4 c.m. x 3 c.m. present of abdomen at 10 c.m. left of the amblica. (vii) A bullet wound 1 c.m. x 0.8 c.m. x abdomen cavity deep. Present on the right side of abdomen at six c.m. above right enterior superior iliac spine. (viii) One exit wound of bullet, measuring 4 c.m. x 2.5 c.m. present on left side of the abdomen at 3 c.m. above, enterior inferior iliac spine of left side part of small intestine coming out side. (ix) One bullet entry wound 1 c.m. x 0.8 c.m. x chest cavity present on left side of chest 5 c.m. below the pit of axilla. (x) One bullet exist wound 5 c.m. x 3 c.m. on left side of the chest 10 c.m. below the left nipple. (ix) One bullet entry wound 1 c.m. x 0.8 c.m. x chest cavity present on left side of chest 5 c.m. below the pit of axilla. (x) One bullet exist wound 5 c.m. x 3 c.m. on left side of the chest 10 c.m. below the left nipple. @ All organs were pale, right, lung was healthy, left lung was having bullet injury. Heart was healthy and empty. Brain was healthy and pale. Stomach healthy containing size hundred gram of partly digested food having smell resembling that of alcohol. (D) Viscera was preserved and sent to forensic science laboratory from analysis. 14. P.W. 2 has also opined that the death of Thangzalung was due to shock and haemorrhage resulting from bullet injuries, which were ante mortem and homicidal in nature. 15. Same as the evidence of P.W. 1, the evidence of P.W. 2, too, have remained undisputed and we, therefore, see no reason to disbelieve or discard the findings of PW 2 or his opinion with regard to the cause of death of Lance Naik L. Thangzalung. 16. From a combined reading of the evidence, given by PW 1 and PW 2, we find that all the said three deceased persons had sustained bullet injuries, which were ante mortem and homicidal in nature, and their deaths resulted from the shock and haemorrhage, which were caused by bullet injuries. 17. P.W. 3, Sri Modan Choudhury, and P.W. 4, Sri Khagen Ch. Nath, turned hostile to the prosecution. According to the evidence of PW 3, on 22.11.97, at about 3 pm, Officer-in-Charge, Chhaygaon Police Station, called him to the police station and told him that he had apprehended a CRPF personnel, who had been trying to escape with arms and ammunitions after causing deaths of some persons. Though PW 3 has deposed that Ext. 4(1) is his signature, he has alleged that he was not shown any arms and ammunitions. 18. In his cross-examination, PW 3 was categorical that he was not present at the time, when police had apprehended the accused nor was he present at the time, when police had allegedly made seizure of any article. 19. 4(1) is his signature, he has alleged that he was not shown any arms and ammunitions. 18. In his cross-examination, PW 3 was categorical that he was not present at the time, when police had apprehended the accused nor was he present at the time, when police had allegedly made seizure of any article. 19. So far as PW 4 is concerned, he has deposed that he had heard that a CRPF personnel had killed two other CRPF personnel by firing and after two days thereafter, a person, who used to light lamp at Sankardev Kala Kristi Khetra, informed their Secretary, Sukleswar Kalita, that he had seen a person lying inside the shelf of the said Kala Kristi Khetra and, in the evening, Sukleswar in-formed them (PW 4 and others) about what he had been reported and, then, police was informed. 20. It is in the evidence of PW 4 that in the evening, taking CRPF personnel along with him, Nilachal Bharali (PW 20) went to said Kala Kristi Khetra and apprehended the CRPF jawan, but he (PW 4) did not himself see, when the CRPF jawan was apprehended inasmuch as he was, at that point of time, according to the evidence of PW 4, at the Inspection Bungalow with doctor Kamala Kalita (the then Health Minister). This witness, too, was declared hostile, though he admits that Ext. 4(2) is his signature. 21. A close reading of the above evidence of PW 3 and PW 4 shows that their evidence do not extend any support to the prosecution's case. 22. Coming to the evidence of P.W. 5, a Havildar in CRPF attached to the CRPF Battalion, we notice that according to his evidence, his Battalion, at the relevant point of time, camped at Chhaygaon Police Station and, according to him, total number of 75 to 80 CRPF personnel used to stay in the Police Station Camp of Chhaygaon and that accused Babulal was a constable of the Battalion and he, too, used to stay with them. 23. 23. Describing the occurrence, PW 5 has deposed that on 20.11.1997, the accused was on sentry duty from 9 P.M. to 11 P.M. at the main gate of the said Police Station and that at the sentry post, the accused was alone, he had one LMG with nine magazines and as many as 270 bullets were there in those magazines and one self-loading rifle with three magazine and 60 rounds of ammunitions. PW 5 has clarified that the LMG was placed on the brick wall of the sentry point and the SLR was hanged over the shoulder of the sentry on duty. 24. It is in the evidence of PW 5 that he, on the night of the occurrence, woke up on hearing the sound of firing from LMG PW 5 adds that on hearing the sound of firing, all the CRPF personnel of the Company got up and took their required positions to challenge the firing and, at that very movement, he (P.W. 5) heard a sound, "Babulal did the fire, Babulal did the fire". PW 5 has also deposed that when he went a bit forward, he saw the accused fleeing away by path located near the Mandir (temple) with a SLR and LMG and while the LMG was handing from his neck, the SLR was hanging from his shoulder and that the accused entered into the jungle near Ganesh Mandir after swiftly running away and although the CRPF personnel went out in search of the accused, they could not find the accused at night. 25. It is in the evidence of PW 5 that he (P.W. 5) along with others rushed to the room and found Srikumar, Hussain Ali and Thanzalung lying, on their beds, in pool of blood and he also noticed bullet injuries on their bodies and that there were also bullet marks on the walls of the room. It is also in the evidence of PW 5 that Rameswar Orang had sustained bullet injury on his leg and he was also lying on his bed. The further evidence of PW 5 is that all the injured, including Rameswar, were shifted to a private Nursing Home, but the doctor declared three of them as already dead, whereupon dead bodies were sent to Guwahati Medical College and Hospital and police were informed by him (P.W. 5) by lodging an Ejahar. 26. The further evidence of PW 5 is that all the injured, including Rameswar, were shifted to a private Nursing Home, but the doctor declared three of them as already dead, whereupon dead bodies were sent to Guwahati Medical College and Hospital and police were informed by him (P.W. 5) by lodging an Ejahar. 26. It is also in his evidence of P.W. 5 that he collected 24 empty cartridges from the room of the accused, the cartridges of size 7.62 had been fired from the LMG, which was in possession of the accused, and that the cartridges, so recovered, were, in his presence, seized by the police. It is in the evidence of PW 5 that police also seized one in-and-out' register as regards issuance of arms to the CRPF personnel, which indicates possession of LMG and SLR with accused Babulal having countersigned. Further evidence of PW 5 is that from the duty register, dated 20.11.1997, it transpires that the duty of accused Babulal was from 9 PM to 11 PM at the sentry post. PW 5 has deposed that later on, accused was apprehended from a public building. 27. Although P.W. 5 was cross-examined, there is no denial of the fact that the accused was on sentry duty at the relevant point of time, that LMG and SLR were with him and he was apprehended after the occurrence along with aforesaid firearms. However, though P.W. 5 denied that he had not stated before the Investigating Officer (PW 20) that he had seen the accused fleeing away immediately after the occurrence, the Investigating Officer (PW 20) has confirmed that PW 5 did not state before him that he (PW 5) had seen the accused fleeing away. 28. Notwithstanding, however, the fact PW 5 had not stated before the police that he had seen the accused fleeing away, the fact of the matter remains, as already indicated above, that there has been no denial of the evidence of PW 5 that on the day of the occurrence, the accused-appellant was at sentry duty between 9 and 11 pm at the main gate of the said police station and the accused-appellant had with him LMG and SLR and that the accused had fled away and he was apprehended on the third day of the occurrence along with the fire-arms. 29. 29. In the light of the above admitted evidence on record, we, now, turn to the evidence of PW 6, who is a constable in CRPF. This witness's evidence is that he was sleeping in his room, along with other CRPF personnel, at the time of the occurrence. Describing the occurrence, PW 6 has deposed that he saw bullets coming from the window and that the bullets were being fired from LMG and he, therefore, along with other CRPF personnel, took position, he switched on the light and saw injuries on the bodies of two persons and another was lying wrapped in blanket. It is in the evidence of PW 6 that when he switched on the light, the firing stopped. P.W. 6, along with his colleagues, lifted the injured and found that three persons were dead and one person sustained injury on his leg and they were all sent to nearby hospital. PW 6 has also deposed that all the CRPF personnel shouted that accused Babulal did the firing. However, P.W. 6 did not say where the accused was at the relevant time, but PW 6 has deposed that he, along with others, went out in search of accused Babulal, they went to Kamakhya Railway Station in search of the accused and, on the third day, the accused was apprehended and that after the accused was apprehended, he saw the accused at Police Station. PW 6 has claimed that police recovered LMG and SLR from the possession of the accused. 30. In his cross-examination, PW 6 has admitted that as there was darkness in the room, he had not seen who had fired at their room, but his evidence that he, along with others, did go in search of the accused clearly shows that the accused, immediately after the firing, had disappeared and he was searched for by his colleagues in the CRPF camp, but the accused remained untraceable until the time he was seen at the Police Station by PW 6. 31. P.W. 7, Sunil Kr. Prasad, was also in the room, where firing had taken place. He has stated that the sentry point was attached to their room near the window and he woke up on hearing the sound of firing and that the firing was from a LMG. 31. P.W. 7, Sunil Kr. Prasad, was also in the room, where firing had taken place. He has stated that the sentry point was attached to their room near the window and he woke up on hearing the sound of firing and that the firing was from a LMG. It is in the evidence of PW 7 that in all, 26 rounds were fired and that he had heard that Babulal had opened fire. According to him, injured Rameswar shouted, Babulal did the fire, chase him, chase him. PW 7 saw the deceased personnel with bullet injuries, but the accused fled away and went missing. PW 7 has further alleged that the accused fled away with LMG and SLR. 32. Coupled with the above, it is also of great significance to note that other than the accused-appellant, Babulal, none else disappeared from the said camp nor is it in dispute that immediately before the firing, accused was on sentry duty, at the main gate of the said Police Station, the sentry post being attached to the room, where CRPF personnel were showered by bullets. 33. Bearing the above facts in mind, let us proceed and come to the evidence of P.W. 8, Surendra Kumar Sahu, who was on sentry duty, at the sentry point, located near the arms room. He was on duty between 8 and 10 P.M. and, according to him, the accused was on duty at sentry point No. 1 situated near the main entry of the Police Station, which was attached to the room, where the deceased personnel and injured were sleeping. PW 8 has deposed that accused Babulal was, on duty, at sentry point No. 1 from 9 PM to 11 PM. 34. It is in the evidence of PW 8 that while he was on duty, he heard sound of firing from LMG coming out from the sentry post No. 1 guarded by accused Babulal. PW 8 has clarified that there were several rounds of firing within the range of 10 to 15 seconds and he also saw injured Rameswar coming out of his room shouting Babulal was firing. 35. P.W. 8 has categorically stated that he saw accused Babulal going out from the sentry post with LMG and SLR and that the accused fled away. 35. P.W. 8 has categorically stated that he saw accused Babulal going out from the sentry post with LMG and SLR and that the accused fled away. PW 8 has deposed that he blew his whistle and, on hearing his whistle, all staff of the camp woke up and went to the room, where firing had taken place (i.e., the room attached to the sentry point where accused Babulal was on duty), and he (PW 8), too, saw dead bodies of the said deceased persons and injured Rameswar and noticed that all the victims had sustained bullet injuries and he had also noticed several holes, in the walls of the room, which were caused by bullets and as many as 24 numbers of empty cartridges were found in the room. 36. It is in the evidence of PW 8 that accused Babulal could not be traced out on that day and he could be arrested only after 3rd day along with LMG and SLR. 37. Lending support to the evidence of P.W. 7, P.W. 8 has deposed that he saw the accused fleeing away from the place of occurrence immediately after the incident and that the accused was on duty at sentry point No. 1 from 9 PM to 11 PM. 38. Though PW 8 has denied that he had not stated before the police that he had seen the accused running away along with SLR, the Investigating Officer (PW 20) has con-firmed that this witness (PW 8) had, indeed, not stated before him that he (PW 8) had seen the accused running away with LMG and SLR. 39. In his cross-examination, however, PW 8 has clarified that though he had not seen bullets being fired from Sentry Point No. 1, he had heard firing from LMG coming out from Sentry Point No. 1, which was, admittedly, guarded by accused Babulal. It has also surfaced from the cross-examination of PW 8 that the accused had disappeared immediately after the occurrence with SLR nor is it in dispute that the accused was, indeed, on duty, at Sentry Point No. 1, between 9 and 11 pm on the night of the occurrence. 40. It has also surfaced from the cross-examination of PW 8 that the accused had disappeared immediately after the occurrence with SLR nor is it in dispute that the accused was, indeed, on duty, at Sentry Point No. 1, between 9 and 11 pm on the night of the occurrence. 40. Broadly in tune with the evidence of PW 6, PW 7 and PW 8, PW 9, who was also one of the members of the said CRPF Camp on the night of the occurrence, has deposed that on the night of the occurrence, while he was sleeping, he heard sound of firing from LMG and woke up and noticed that bullets were coming from the open window of their room from the direction of Sentry Point No. 1, which was attached to the room, where they were sleeping, and, then, firing stopped and that Rameswar Orang, who was sleeping in the room, went out shouting Babulal was firing, Babulal was firing. 41. The material aspects of the evidence of PW 9, which have remained unshaken, show that he noticed bullets being fired from the direction of the Sentry Point, which was attached to the room, where they were sleeping, and it has also come on record that the said Sentry Point was, at the relevant point of time, manned by accused Babulal inasmuch as Babulal was on duty at the said Sentry Point. 42. Turning to the evidence of PW 10, an-other CRPF personnel of the said camp, we notice that he discharged his duty till 9 PM at sentry post No. 1 and the accused also arrived at 9 PM to sentry post No. 1 and released him. Accused came with a SLR and three magazines being issued from the magazine room and one LMG was already there with a wooden stand on the brick wall. According to PW 10, the said LMG remains, at the sentry point, in the charge of guard commander. The accused released him from the said sentry point and took over the charge of LMG from him and that there were 9 magazines of LMG and each magazine contained 30 rounds of bullets. 43. According to PW 10, the said LMG remains, at the sentry point, in the charge of guard commander. The accused released him from the said sentry point and took over the charge of LMG from him and that there were 9 magazines of LMG and each magazine contained 30 rounds of bullets. 43. It is in the evidence of PW 10 that after handing over the charge to the accused, he (P.W. 10) went to his room and after taking supper, he slept and while he was sleeping, he heard sound of firing from LMG, got up and took position and, after some moments, when he went to the Sentry Point No. 1 (Morcha No. 1), he found the said sentry point vacant and the SLR and LMG were also found missing. PW 10 has deposed that he also heard Rameswar shouting, "Babulal fire kiya, Babulal fire kiya" and he, along with another staff, went in search of the accused. 44. No contradiction, between the evidence given by PW 10 at the trial and his previous statement made before the police, could be pointed out by the defence during cross-examination except that the Investigating Officer (PW 20) has proved that this witness had not stated that Rameswar Orang was heard shouting, 'Babulal fire kiya' 45. What has, however, surfaced unscathed from the evidence of PW 10 is that it is from him that the accused had taken charge of Sentry Point No. 1 and was on duty at the time of the occurrence and, immediately after firing had stopped, the accused disappeared from the said Sentry Point along with SLR and LMG inasmuch as the said Sentry Point was lying vacant indicating thereby that it was the accused, who had fired and fled away. 46. P.W. 11 was a security guard of Company Commander Mr. Shah Nawaj Khan, and, at the relevant point of time, he used to stay in a separate police quarter at a distance of 1000 yards from the main CRPF camp (Gate), which was situated within the campus of Chhaygaon Police Station. It is in the evidence of P.W. 11 that he also heard the sound of firing and he, along with Khan and others, rushed to the main camp. PW 11 saw the dead bodies of deceased CRPF jawans inside the room. It is in the evidence of P.W. 11 that he also heard the sound of firing and he, along with Khan and others, rushed to the main camp. PW 11 saw the dead bodies of deceased CRPF jawans inside the room. It is also in the evidence of PW 11 that the sentry point (Morcha) No. 1 was attached to the room, where the occurrence took place, and he found no man at sentry point. PW 11 has also deposed that the LMG, fixed on that sentry point, was also not seen there and PW 11 was told by others that accused Babulal did the firing. PW 11 has further deposed that he witnessed the seizure of LMG, SLR and ammunitions recovered from the possession of the accused. 47. The evidence of P.W. 12 (Joynanda Baishya) is that he heard the incident of firing, which was caused by Babulal. According to the evidence of PW 12, on the following day, the dead bodies were sent to Guwahati Medical College and Hospital for post mortem examination under his custody. PW 12 has also deposed that during post-mortem examination, a bullet was recovered from the body of deceased K. Hussain, which was seized by the Investigating Officer. 48. The crucial evidence is the evidence of P.W. 13 (Biren Choudhury), who has deposed to the effect that on 20.11.97, at about 9.30 pm, he, along with Md. Hasmat Ali (PW 15) and Dhani Das @ Dhaneswar Das (P.W. 16), went to Chayygaon Police Station to discuss some matter with Officer-in-Charge, Chayygaon Police Station, and, at about 10 pm, he heard sounds of firing from the CRPF camp and, on hearing the sounds of firing, the Officer-in-Charge, Chayygaon Police Station, left the room asking them to sit there for a while and, at that time, he (PW 13) saw a CRPF personnel, namely, Babulal, running eastward from in front of the Mandir taking a gun in his hand and, then, the Officer-in-Charge informed PW 13 and his companions that men had been killed and asked them to leave the place and, accordingly, they left the place after sometime. On the following day, at about 9 am, on coming to the said police station, PW 13 found dead bodies, which were being carried to the said police station. 49. On the following day, at about 9 am, on coming to the said police station, PW 13 found dead bodies, which were being carried to the said police station. 49. In his cross-examination, PW 13 has clarified that he had not himself seen the firing and denied that he could not recognise Babulal at the time of the occurrence. This assertion of PW 13 has gone completely unchallenged by the defence. It is also not the case of the defence that PW 13 had not stated before police, during investigation, that he had seen Babulal running away with firearm in his hand. 50. So far as PW 15 is concerned, he, while supporting the evidence of PW 13, has deposed that at about 8 or 9 pm, he came with PW 13 to Chayygaon Police Station and while sitting at the said Police Station, he heard gunshot being fired and, on coming out, he saw a person running away by the front side of the temple situated in front of the said Police Station with a gun in his hand. 51. It is in the evidence of PW 15 that he would be able to recognise the person if he sees him and that two or three days thereafter, when police apprehended the said person, he went to the Police Station and saw him there and recognised him. This witness has deposed that he had not seen the actual firing. 52. What surfaced unscathed from the evidence of PW 15 is that he did go, at the relevant point of time, to the said Police Station and, had seen, soon after the occurrence, a person running away with a firearm in his hand and while PW 15 knew the said person as Babulal, PW 15 recognised him after he was apprehended. The assertion that PW 15 had seen the accused and had recognised him was not even disputed by the defence. 53. Situated thus, one cannot help but conclude, in the light of the evidence of PW 13 and PW 15, that immediately after the firing stopped, these two persons, who are independent witnesses, had seen the accused-appellant running away with firearm in his hand. 54. 53. Situated thus, one cannot help but conclude, in the light of the evidence of PW 13 and PW 15, that immediately after the firing stopped, these two persons, who are independent witnesses, had seen the accused-appellant running away with firearm in his hand. 54. Close on the heels of the evidence of PW 13 and PW 15, PW 16 has deposed that he had gone to the Police Station with PW 13 and PW 15 and while they were talking to the Officer-in-Charge, Chayygaon Police Station, they heard gunshot being fired and on going out, they saw a person from CRPF camp crossing the road by the front side of the temple with a gun in his hand. 55. PW 16 has candidly conceded in his examination-in-chief that he would not be able to recognise the person if he sees him. 56. In his cross-examination, PW 16 has also clarified that he had not seen the shooting himself, but he has asserted that he has seen the person, in question, from a distance of about 100 cubits and this assertion of PW 16 has gone undisputed by the defence. 57. In the light of the un-assailed evidence of PW 13, PW 15 and PW 16, there can be no escape from the conclusion that these witnesses were present at the said Police Station at the time when gunshots were being fired inasmuch they were sitting with the Officer-in-Charge, Chayygaon Police Station, at the time, when firing took place and the said Officer-in-Charge went out of his room. These three persons also came out of the room and saw a CRPF personnel running away with a gun in his hand. Though PW 16 could not recognise the said person, PW 13 undisputedly knew the person as Babulal and PW 15 having seen the said person after the said person was apprehended, could recognise him as the accused. 58. According to P.W. 14, Chabin Saloi, he was an employee of Chhaygaon Shrimanta Sankardev Kalakristi Bikash Kendra, and had been performing his duty of lightening the lamp. On the day of the occurrence, when he entered the building to light the lamp, he saw a person lying on an Almirah, containing books, inside the library. 58. According to P.W. 14, Chabin Saloi, he was an employee of Chhaygaon Shrimanta Sankardev Kalakristi Bikash Kendra, and had been performing his duty of lightening the lamp. On the day of the occurrence, when he entered the building to light the lamp, he saw a person lying on an Almirah, containing books, inside the library. PW 14, then, according to what he has deposed, immediately, rushed to Chhaygaon Police Station and informed the police, whereupon police took the key of the library from him and apprehended the person along with LMG and Pistol. 59. PW 14 has deposed that the accused was in Khaki uniform and, later on, he (PW 14) came to know that the said person's name was Babulal and he was a CRPF personnel. PW 14 has also deposed that police seized the arms from the custody of the accused in his presence. 60. What, now, needs to be noted is that the material aspects of the evidence of PW 14 have gone unchallenged by the defence. Thus, the unshaken evidence of PW 14 clearly shows that the accused was found lying on the alimrah inside the library and police apprehended him along with arms, which he was carrying including a LMG. 61. P.W. 17, Md. Shahnawaz Khan, who was, at the relevant point of time, Commandant of the CRPF Battalion located at Chayygaon Police Station, has deposed that Rameswar informed him that Babulal, after firing inside the barrack by LMG through the window, fled away and he (P.W. 15) sent the injured to the hospital. According to what PW 17 has deposed, he (PW 17) organised a search party to trace out the accused, who had escaped with one LMG, 9 magazines with 246 Nos. of 7.62 ammunitions and SLR rifle with 3 magazines & 60 rounds of ammunitions. PW 17 has further deposed that the SLR was personal weapon of the accused; whereas the LMG was a sanctioned weapon. It is also in the evidence of PW 17 that after two days of search, Babulal was found in a house, which was used as a Library and the LMG, SLR and ammunitions were recovered from his possession. PW 17 has clarified that the ammunitions were light ammunitions. It is also in the evidence of PW 17 that after two days of search, Babulal was found in a house, which was used as a Library and the LMG, SLR and ammunitions were recovered from his possession. PW 17 has clarified that the ammunitions were light ammunitions. PW 17 has deposed that during investigation, police seized an in-and-out register, which shows that the SLR was issued to accused Babulal and the duty register shows that accused Babulal had taken LMG and ammunitions. 62. On considering the evidence of PW 17, what clearly emerges is that accused did disappear with SLR, LMG and some ammunitions on the night of the occurrence and he was apprehended from a library, which, in the light of the evidence of PW 14, was located inside Chayygaon Sankardev Kala Kristi Vikash Kendra. 63. PW 18, Budhpal Singh, another CRPF personnel, has deposed that while he was discharging patrolling duty, as sentry, at Chhaygaon Police Station, he heard the sound of firing and he also heard that Babulal, after firing into the barrack, had fled away with arms and ammunitions. PW 18, according to his evidence, immediately, rushed to the quarter of P.W. 17 to inform him (PW 17) about the occurrence and met P.W. 17 on the way, who was also proceeding towards the place of occurrence. 64. PW 18 has also deposed that P.W. 17 ordered him to take a vehicle and go out to trace Babulal. Thus, the evidence of PW 18, too, shows that accused had disappeared immediately after the firing took place. 65. P.W. 19, Kanteswar Gogoi, who was inspector of Police, at the time of the occurrence, has deposed that he submitted charge sheet against the accused. Defence has, however, declined to cross-examine PW 19. 66. The evidence of P.W. 20, Nilachal Bharali, Inspector of Police, who had been serving as Officer-in-Charge, Chhaygaon Police Station, is that he heard the sound of firing coming out of the CRPF camp situated within Chhaygaon Police Station and he (P.W. 20), being the officer-in-charge, Chhaygaon Police Station, immediately proceeded to the CRPF camp along with other police personnel. The injured were, according to the evidence of PW 20, immediately, shifted to nearby Life Care Nursing Home and he (PW 20) sent a search party to find out accused Babulal, who had immediately after the incident, run away with arms and ammunitions. 67. The injured were, according to the evidence of PW 20, immediately, shifted to nearby Life Care Nursing Home and he (PW 20) sent a search party to find out accused Babulal, who had immediately after the incident, run away with arms and ammunitions. 67. PW 20 has also deposed that he entered the necessary information in General Diary and, on receipt of formal Ejahar, lodged by the informant, he registered a case. 68. It is in the evidence of PW 20 that he seized 24 rounds of empty cartridges of 7.62 bore, which were fired from the arms of accused Babulal, one fired bullet was also re-covered from the place of occurrence and he recorded the statements of the witnesses. It is also in the evidence of PW 20 that injured Srikumar, Hussain Ali and L. Thangzalung succumbed to their injuries at the hospital and PW 20 deputed Sub-Inspector, Nabin Haloi of Chhaygaon Police Station for holding inquest on the dead bodies and to arrange for post mortem examination. 69. It is the further evidence of PW 20 that on 22.11.1997, he got an information that one man had entered into library and hiding himself there and he (PW 20), along with police and CRPF personnel, went there and, on peeping through an window, they saw accused Babulal inside the library, the accused was over powered and one LMG, one SLR, 3 magazines of SLR containing 60 rounds of live ammunition & 9 magazines of LMG containing 246 rounds of ammunitions were recovered from the possession of the accused, which were seized in presence of the witnesses. PW 20 also seized wearing apparels of accused. 70. It is in the evidence of PW 20 that at the time of post-mortem examination, one bullet was recovered from the dead body of deceased K. Hussain Ali and, on being handed over by the doctor, it was seized by Exhibit-8. The seized LMG, 24 rounds fired cartridges and 2 bullets were, according to the evidence of PW 20, sent to Forensic Science Laboratory for examination. 71. PW 20 had also seized, in the light of the evidence on record, one in-and-out register and one duty register from the CRPF camp vide Exhibit-7. From the duty register, it transpired that the seized LMG, SLR and ammunitions had been issued to accused Babulal. 72. 71. PW 20 had also seized, in the light of the evidence on record, one in-and-out register and one duty register from the CRPF camp vide Exhibit-7. From the duty register, it transpired that the seized LMG, SLR and ammunitions had been issued to accused Babulal. 72. The material aspects of the evidence of PW 20 have remained wholly untouched by the defence and the evidence, so given by PW 20, clearly shows that the accused had been using prohibited firearms, which had been issued to him and the bullet found from the dead body of K. Hussain Ali, was sent to Forensic Science Laboratory for examination. From the evidence of PW 20, it also clearly transpires that the accused was found in the library as has been deposed to by PW 13 and PW 15 and apprehended from there. 73. P.W. 21, Nabin Haloi, is an attached officer to Chhaygaon Police Station, who had conducted inquest on the dead bodies of the said deceased persons. This witness has deposed that he issued requisition for treatment of injured Rameswar and sent the dead bodies for post-mortem examination. 74. P.W. 22, Monoranjan Talukdar, who was, at the relevant point of time, a Scientific Officer, Forensic Science Laboratory, Guwahati, has deposed that on 29-11-2-1997, Superintendent of Police, Kamrup, sent one wooden box containing one 7.62 LMG bearing No. 15381238, which is marked as Ext. 1, 24 Nos. fire cartridges, which were marked as Ext. 2 to 25, one fired bullet marked as Ext. 26, one fired bullet marked as Ext. 27, to Director, Forensic Science Laboratory, for examination and, on examination, PW 22 found as follows:- Ext. 1 is the Light Machine gun. The firing pin impression on Ext. 2 to 25 were compared with the firing pin impression one test fired cartridge cases by Ext. 1 under comparison microscope and were found to be similar. Therefore, it can be opined that Ext. 2 to 25 were fired by Ext. 1. The striation (rifling mark) marks on Ext. 26 and 27 were compared with those on test fired bullets by Ext. 1 under comparison microscope. However, no definite opinion could be given whether or not Ext. 26 and 27 were fired by Ext-I due to insufficient data. 75. Although a Scientific expert cannot give definite opinion as to whether Ext. 1. The striation (rifling mark) marks on Ext. 26 and 27 were compared with those on test fired bullets by Ext. 1 under comparison microscope. However, no definite opinion could be given whether or not Ext. 26 and 27 were fired by Ext-I due to insufficient data. 75. Although a Scientific expert cannot give definite opinion as to whether Ext. 26 & 27 were fired from LMG due to insufficient data, he could confirm that the empty cartridges Ext. 2 to 25, which were recovered from the place of occurrence, were fired by Ext. 1, that is, LMG. 76. The incriminating circumstances, established by the prosecution against the accused, may, therefore, be summarized as follows:- (1) The accused was on sentry duty, on 20.11.1997, from 9 PM to 11 PM at sentry post No. 1, which was situated near the room/hall, where the deceased persons and other CRPF personnel were sleeping. (2) As many as 4(four) CRPF personnel sustained firearm injuries and 3(three) of them died due to fire-arm injuries. (3) The incident occurred at around 10 PM, when the accused was on duty at the sentry point No. 1. The accused, at 9 PM, on the day of the occurrence, took charge of the sentry post from P.W. 10 and he also took the charge of the LMG, in question, which, later on, came to be seized in the circumstances as mentioned above. (4) Immediately after the firing, accused fled away from the camp along with the arms and ammunitions, which were, eventually, seized from the possession of the accused. (5) While the accused was running away from the place of occurrence, he was seen by witnesses and, as soon as the firing stopped, the accused absconded and, on vigorous search, he was found hiding himself in a library room of Shrimanta Sankardev Kalakristi Kendra building. (6) The LMG, which was meant for sentry post, and personal SLR along with magazines, were recovered from the possession of the accused. (7) As per the ballistic report, the empty cartridges, recovered and seized from the place of occurrence, were fired from the LMG, which was recovered and seized from the possession of the accused. 77. Learned counsel for the appellant has cited the case of Gurcharan Singh Vs. State of Punjab ( AIR 1963 SC 340 ). (7) As per the ballistic report, the empty cartridges, recovered and seized from the place of occurrence, were fired from the LMG, which was recovered and seized from the possession of the accused. 77. Learned counsel for the appellant has cited the case of Gurcharan Singh Vs. State of Punjab ( AIR 1963 SC 340 ). In the cited case, the seized cartridge and gun were sent for examination to ballistic expert but no report was produced before the trial Court. In the other case of Mohinder Singh Vs. The State ( AIR 1953 SC 415 ), the prosecution could not prove that the death of the deceased was due to injuries caused by lethal weapons and it was held that it was the duty of the prosecution to prove by expert evidence that it was likely, or at least, possible for the injuries to have been caused by the weapon with which, and in the manner in which, they were alleged to have been caused. In Mohinder Singh (supra), the prosecution could not prove whether the injuries, which were alleged to have been caused by the accused, were caused by a gun or by a rifle. 78. In the present case, the doctor, who examined the dead bodies of the deceased persons, has, however, clearly opined that the deceased persons sustained bullet injuries. One bullet was also recovered, while conducting the post-mortem examination from the body of Lance Naik K. Hussain Ali. Therefore, there cannot be any doubt that the deceased persons died due to bullet injuries sustained by them. Only because the ballistic expert did not give definite opinion as to whether the fired bullets were fired from the seized LMG, the other circumstances, appearing against the accused, cannot be brushed aside, which clearly indicate that it was the accused, who had caused death of the said three deceased persons by his act of indiscriminate firing. 79. The fact remains that the victim and other CRPF personnel were sleeping in a hall and adjacent to the hall, there was sentry point No. 1, where the accused was on duty at the relevant point of time, and the LMG, SLR and other ammunitions were in the custody of the accused. 79. The fact remains that the victim and other CRPF personnel were sleeping in a hall and adjacent to the hall, there was sentry point No. 1, where the accused was on duty at the relevant point of time, and the LMG, SLR and other ammunitions were in the custody of the accused. There was firing through the window of the hall, the accused, immediately, fled away from the place of occurrence along with arms and ammunitions and while the accused was fleeing away, he was seen by witnesses, particularly, PW 13 and PW 15. This apart, empty cartridges, recovered from the place of occurrence, were fired by LMG, which the accused had in his custody and which was recovered and seized from the possession of the accused in the circumstances as indicated above. Thus, the fact that LMG and SLR, along with ammunitions, in question, were recovered from the possession of the accused has been clearly proved. The accused, in his statement, recorded under Section 313 Cr.P.C., failed to give any explanation against the incriminating materials put to him. 80. When the accused-appellant was on duty along with arms and ammunitions and there was incident of firing, it was his burden to explain as to who opened the fire. 81. Though it has been agitated before us, on behalf of the appellant, that Rameswar Orang, who had sustained injury and who was heard shouting to the effect that Babulal had been firing, has not been examined and adverse inference needs to be drawn against prosecution, we find that even without examination of the injured Rameswar Orang, prosecution has clearly proved by the circumstantial evidence, which we have discussed above, that it was the accused-appellant, who had opened fire by the fire arms, which he was in possession of, and he happened to cause intentional death of the said three persons. Non-examination of Rameswar Orang, in the facts and attending circumstances of the present case, cannot be said to have adversely affected the veracity of the prosecution's case. 82. There is no doubt, as has been rightly pointed out, on the strength of the decision, in Dhananjay Chatterjee Vs. Non-examination of Rameswar Orang, in the facts and attending circumstances of the present case, cannot be said to have adversely affected the veracity of the prosecution's case. 82. There is no doubt, as has been rightly pointed out, on the strength of the decision, in Dhananjay Chatterjee Vs. State of West Bengal, reported in (1994) 2 SCC 220 , that abscondence by itself is not a circumstance, which can lead to the conclusion consistent with the guilt of the accused, for, it is not uncommon that an innocent person, on being falsely implicated, may abscond to save himself. The case at hand is, however, otherwise inasmuch as the bullets were fired from the LMG, which was, at the relevant point of time, in the possession of the accused-appellant. The accused-appellant had no reason to flee away if he was not the offender. This apart, it was within the special knowledge of the accused-appellant alone as to how the fire-arm, which he possessed, were used for the purpose of shooting inasmuch as it was the accused-appellant, who was on duty at Sentry Point No. 1 with LMG. 83. Because of what have been discussed above, we find that the prosecution successfully proved that it was the accused-appellant and none else, who had intentionally caused death of the three deceased and he was, therefore, clearly proved guilty of the offence of murder punishable under Section 302 IPC. 84. We, therefore, uphold the judgment passed by the learned trial Court convicting the accused-appellant under Section 302 IPC and also the sentence passed against him. 85. In the result, this appeal stands dismissed. Send down the LCRs to the learned court below with a copy of this judgment and order.