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2013 DIGILAW 859 (GAU)

Sitesh Kanu and Ors. v. State of Assam

2013-12-12

PRASANTA KUMAR SAIKIA, SREEDHAR RAO

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Sreedhar Rao, J. The material-facts of the prosecution case disclose that on 26.4.2004 at around 6 PM one Sankar Rajwar along with his brother Sambu Rajwar, and Amit Hazam were proceeding toward Dipak Rajwar's house at Janglitila. On their way the accused 1 along with 10-12 persons attacked them with an intention to kill them. Sambu Rajwar and Amit Hazam had successfully managed to escape in an injured condition and Sankar Rajwar (Hazam) was done to death. On the same day at around 6.30 PM one Sudarshan Duasad takes Sambu Rajwar(PW5) and Amit Hazam (PW6) to the Lala police station. General diary at exhibit-3 has been recorded by the P.W. 12 in the following manner: No. 563 6.30 p.m.. Entry regarding the appearance of the injured persons and sending them to the hospital Now, Sudarsan arrives at P.S. from Kaiya Bagan accompanied by injured persons viz (1) Sambhu Rajwar, S/o. Nimai Rajwar (2)Amit Hazam S/o. Lalbabu Hazam, R/o Jonglitilla Koiya. I came to know from injured Sambhulal that around 5.30/6 p.m.. when Sambhu Rajwar, Sankar Rajwar and Amit Hazam were going to the house of Dipak of Jonglitilla together to pay a visit, Lakhwa Rajwar of Kaiya line No. 7 along with some 10/12 other persons tried to kill them on the road. Two of them some how managed to escape in injured condition and their other companion Sankar Hazam is lying dead at the P.O. Upon receipt of that information I make a G.D. Entry and the injured persons are being sent to Lala Hospital for treatment under escort UBC(B) Aral Rajbongshi. And effort is on to take necessary steps for the deceased by visiting the P.O. 2. On 28.4.2004 one Narayan Rajwar, who is brother of the PW5, gives a complaint vide exhibit-1 in the following manner: EJAHAR. To The Officer in Charge Lala Police station Dist. Hailakandi Informant: Sri Narayan Rajwar S/o. Lt. Nirmala Rajwar R/o. Koya Tea Estate P.S. Lala Dist. Hailakandi. Accused: 1. Lokwar Rajwar 2. Naba kr. Rajwar 3. Rajkumar Rajwar 4. Rajen Rajwar S/o. Babulal Rajwar. 5. Matilai Rajwar S/o. Lt. Bihari Rajwar 6. Babulal Rajwar, S/o. Manbod Rajwar 7. Shital Rajwar 8. Monilal Rajwar S/o. Lt. Falai Rajwar 9. Pabitra Rajwar, S/o. Kewla Rajwar 10. Anantalal Kanu, S/o. Not known. 11. Sitesh Kanu, S/o. Joharlal Kanu 12. and a few others. Naba kr. Rajwar 3. Rajkumar Rajwar 4. Rajen Rajwar S/o. Babulal Rajwar. 5. Matilai Rajwar S/o. Lt. Bihari Rajwar 6. Babulal Rajwar, S/o. Manbod Rajwar 7. Shital Rajwar 8. Monilal Rajwar S/o. Lt. Falai Rajwar 9. Pabitra Rajwar, S/o. Kewla Rajwar 10. Anantalal Kanu, S/o. Not known. 11. Sitesh Kanu, S/o. Joharlal Kanu 12. and a few others. All are residents of Koiya (T.E.) Sir, Humble submission is that around 6 p.m.. on 26.4.04, my younger brother, Sambu Rajwar along with Amit Hazam and Sadhu Kurmi came to my house smeared with blood; and informed me that the above named accused persons had intercepted Sankar Rajwar on the road in front of Sital Rajwar's house at Janglitila and assaulted him with sharp weapons on various parts of his body with the intention to kill him and after inflicting severe injuries, felled him on the ground. When they went to save Sankar Rajwar, they also caused grievous injuries to them by assaulting with sharp weapons and then they left the scene. Accompanied by some neighboring people, when I arrived at the P/O/. I found my brother Sankar Rajwar lying dead with grievous injuries on his person. The name of the witnesses will come to light in course of investigation. Therefore, I request you to take necessary action in this regard. N.B.: It is pertinent to mention here that since I was busy in the hospital with the injured persons, there is late in lodging the ejahar. Ext. 1(1) Yours faithfully Sd/- Illegible Sd/- Narayan Rajwar Dist. & Sessions Judge Hailakandi Scribe: sd/- Illegible 28.4.04. Received and registered Lala P.S.C. No. 73/04 dt. 28.4.04 u/s. 147/148/149/326/302 IPC vide G.D.E. No. 640. Sd/- Purnananda Konwar, SI. Seal 28.4.04. 3. One Purnananda Konwar, sub-inspector of police, on the basis of the exhibit-1, registered the FIR and submitted the same to a Magistrate. However, the investigation was taken up on the basis of the GD entry vide exhibit-3. 4. The police go to the spot and bring the dead body to the police station on the same day. The injured Sambu Rajwar(PW5) and Amit Hazam(6) have been sent to a hospital for treatment On the next day inquest is held. After the inquest the dead body was subjected to a post- mortem. The autopsy report discloses that the death is on account of head injury. The death is said to be homicidal. 5. The injured Sambu Rajwar(PW5) and Amit Hazam(6) have been sent to a hospital for treatment On the next day inquest is held. After the inquest the dead body was subjected to a post- mortem. The autopsy report discloses that the death is on account of head injury. The death is said to be homicidal. 5. All the 11 accused persons came to be arrested on different dates. No recovery has been effected. Investigating officer(PW12) after completion of the investigation has filed the final report. The accused persons are charged for committing offences under sections 323/324/302/149 of the IPC. 6. In their evidence, the PWs 5 and 6, who are witness to the incident, have supported the case of the prosecution. PW5 is the injured witness. The wound-certificate of PW5 is marked exhibit-5, while the exhibit-6 is the wound-certificate of PW6. The said witnesses have been examined by a doctor sometime after the incident on reference by the police. The post-mortem report is marked exhibit-2. The report shows that the death of Shankar Rajwar(Hazam) is one of homicidal as a result of injury sustained to the head. The PWs 5 and 6 in their evidence have deposed that the accused 1 to 11 attacked and assaulted the deceased and also the PW5 was assaulted. But the PWs 5 and 6 could somehow manage to escape, but Sankar was done to death. One more witness that is PW8, who is said to be an injured witness to the incident, is also examined by the prosecution. 7. The trial court on the basis of the ocular evidence of PWs 5, 6 and 8, coupled with the post-mortem report, has convicted all the accused persons, who are appellants herein, for the offences they are charged with. Hence this appeal. 8. The counsel for the appellant submits the following discrepancies to assail the order of conviction: i) The general diary entry at exhibit-3 is sufficient in law to constitute an FIR, but the investigating officer does not register the case on the basis of the said exhibit. It is strange that without an FIR the investigating was commenced! ii) On the basis of exhibit-1 given by Narayan Rajwar(PWl), the FIR is registered on 28.4.2004. It is strange that without an FIR the investigating was commenced! ii) On the basis of exhibit-1 given by Narayan Rajwar(PWl), the FIR is registered on 28.4.2004. In the GD entry at exhibit-3 there is no mention of the names of the accused 2 to 11, although the said accused persons are known to PWs 5 and 6, and they were also present at the time when the GD entry at exhibit-3 was recorded. iii) There is an inordinate delay of 48 hours in lodging the FIR vide exhibit-1. On the basis of the complaint of P.W. 1, it is untenable on the part of the investigating officer to constitute the exhibit-1 as FIR in face of the existence of exhibit-3. iv) The contents of the exhibit-1 and the evidence of P.W. 1 clearly disclose that there has been an overzealous and false implication of the accused persons for vindictive reasons. v) One Sudarshan Duasad who accompanied the PWs 5 and 6 to the police station - as per the exhibit-3 - is not examined by the prosecution. And also one Shital Rajwar, near whose house the incident takes place, is not examined by the prosecution. vi) Inquest proceedings are held in an illegal manner. The dead body was requisitioned to the police station from the spot. In fact the inquest is not held at the spot in order to cover up the glaring illegality. The inquest report is not produced before a Court. vii) The statement of PW5 was recorded about one month after the incident. - In view of the concocted and discrepant circumstances it is argued that the case of the prosecution cannot be believed, because there has been an inordinate delay in registering the FIR and submitting the same to a Court. Besides, vide exhibit-1, the P.W. 1 tried to falsely implicate the accused 2 to 11. viii) The exhibit-1 does not constitute the FIR. In the evidence the PW5 did not mention the name of the accused 2 to 11. When the said persons were known, and had participated in the assault, there was no reason for non-mentioning of their names at the time when the exhibit-3 was recorded. - In that view of the matter it is strenuously submitted that the order of conviction recorded by the trial court is bad in law and the accused persons are liable to be acquitted. 9. - In that view of the matter it is strenuously submitted that the order of conviction recorded by the trial court is bad in law and the accused persons are liable to be acquitted. 9. The stern scrutiny of the facts and the evidence it is glaringly seen that the investigating officer is guilty of mala fide investigation. Exhibit-3 was sufficient enough to constitute an FIR. The PW5, one of the injured in the attack, and PW6, the witness to the incident, came to the police station along with one Sudarshan Duasad and reported the incident to the police. The P.W. 12, who is officer in-charge of the police station, makes a GD entry: no efforts have been made to know about the better details of the assailants from the PWs 5 and 6 since they known the assailants. 10. It was incumbent upon the PW 12 to have made detailed enquiries about the identity of the other participants in the crime. GD entry is imperfectly and mechanically recorded. In fact the P.W. 12 should have recorded the statement of the PW5 and also should have registered the same as FIR. On the other hand the FIR is registered on the basis of exhibit-1 given by the PW 1 on 28.4.2004. There has been a delay of almost two days in registering the FIR. In exhibit-3, there is no specific mention of the names of the accused 2 to 11. However, in exhibit-1, there is a specific mention of the names of the accused 2 to 11. The contents of exhibit-1 also disclose that at around 6 PM, the PW 5 comes to his house immediately after the incident with blood injuries. The PW5 informs the P.W. 1 that at Shital's house, the accused persons named in exhibit-1 assaulted Shankar and when the PW5 went to rescue Shanka he was also assaulted. He got scared and ran away. The PW5 says that he goes to the scene and finds his brother lying dead with injuries. There is no reason why the P.W. 1 had waited for two days to give the exhibit-1 to the police. The sub-inspector who received the complaint from P.W. 1 and registered the same as FIR appears to be ignorant of the rudiments of law and the criminal investigation. There is no reason why the P.W. 1 had waited for two days to give the exhibit-1 to the police. The sub-inspector who received the complaint from P.W. 1 and registered the same as FIR appears to be ignorant of the rudiments of law and the criminal investigation. The P.W. 12 who registered the GD entry at exhibit-3 also appears to be ignorant of the rudiments of law relating to FIR and the investigation. In the context, if the exhibit-3 is held as FIR then the exhibit-1 would constitute only a statement under section 161 of the Cr.P.C.. The inquest of the dead body was not conducted on the spot. For what reason the dead body was shifted to the police station is not known. The lapses committed by the P.W. 12 in the conduct of the investigation would only show that he has done it deliberately - perhaps, to benefit the accused persons. 11. The Director-General of Police, Assam should take serious note of the observations made above to pull up the officer in-charge of the police stations and the superior police officers, including the Superintendents of Police, of the State - to ensure that the investigations are conducted with high degree of integrity and efficiency. 12. Coming to the facts of the case we find that at the earliest point in time the names of the accused 2 to 11 have not been revealed by the PWs 5 and 6. It is thereafter, almost two days of the incident, the names of accused 2 to 11 have been revealed by the P.W. 1 in his written complaint. Therefore, it becomes difficult to accept that the accused 2 to 11 are the parties went along with the accused 1. 13. In so far as accused 1 is concerned, in the GD entry(constitutes as FIR), there is a mention of his name and also the overt acts of assault on the deceased and as well on the PW5. Despite all the lapses in investigation - perhaps for mala fide reasons - we find that there is no reason to disbelieve the version of the PWs 5 and 6 in so far as the presence and participation of the accused 1 is concerned. 14. The medical report discloses that the death is homicidal. The evidence of PW5 is corroborated with the wound-certificate. 14. The medical report discloses that the death is homicidal. The evidence of PW5 is corroborated with the wound-certificate. There is no reason to disbelieve the evidence of PWs 5 and 6 in so far as the guilt of the accused 1 is concerned. 15. Accordingly the appeal is partly allowed. The accused 2 to 11 - Naba Kr Rajwar, Rajkumar Rajwar, Rajen Rajwar, Matilal Rajwar, Babulal Rajwar, Shital Rajwar, Monilal Rajwar, Pabitra Rajwar, Anantalal Kanu and Sitesh Kanu - are acquitted, while the conviction of accused 1- Lokwa Rajwar - under Section 302 of the IPC is confirmed. 16. Registry is directed to send copy of the judgment to the Director- General of Police, Assam to take disciplinary action against the P.W. 12 for the lapses in the conduct of the investigation. It is further directed that the Registry will also send copy of the judgment to the Home Secretary, government of Assam. 17. The Home Secretary and the Director-General of Police would issue necessary circular/instructions to all the police stations and the Superintendents of Police, of the State that henceforth in all Sessions' trials the final reports filed have to be verified by the Superintendent of Police of the district concerned and SP should make endorsements on the final reports before submitting to Courts that he is satisfied with the correctness of the investigations done. Such a procedure would obviate the theoretical flaws and technical lapses - whether intentional or otherwise - in the conduct of the investigations reflected in the final reports filed before the Court, which would ensure the proper compliance of the supervisory responsibilities of the senior police officers as required under Section 36 of the Cr.P.C. The committal Judges should also see that an endorsement of the Superintendent of Police on the final report submitted should be insisted before the final report is received.