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2013 DIGILAW 873 (GAU)

Arup Borgohain @ Kantu v. State of Assam

2013-12-17

K.SREEDHAR RAO, M.R.PATHAK

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K. Sreedhar Rao, J. Heard Mr. D.K. Das, learned amicus curiae, and Mr. Z. Kamar, learned Public Prosecutor, Assam, assisted by Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. The material facts of the prosecution case disclose that one Rubul Konwar is the deceased. There was monetary transaction between the accused and the deceased and there were differences between them. On 10.04.2007, the deceased and PW2 was going together on a bicycle in the village near Shiv Temple and at about 7 pm, the accused came with a machete, picked up quarrel and assaulted the deceased. As a result, deceased fell down. PW2 shouted for help, the villagers came and the accused fled away after the assault. PW2 also informed PW3 who was passing by immediately after the conclusion of the incident about the accused assaulting the deceased. Records disclose that around 7.25 pm, police was informed by the VDP Secretary about the incident. The same is recorded in Assamese and English translation is as follows: One day, one Biren Mech, VDP Secretary of Bamun Gaon, telephonically informed Simaluguri Police Station that Rubul Konwar was killed by somebody at Ramu Deu Dhai Gaon. Accordingly, I, S.I. Naba Kanta Buragohain accompanied by two police constables went to Ramu Deu Dhai Gaon. We also informed the matter to SDPO over telephone. Officer-in-Charge, Simaluguri P.S. 10.04.2009. 2. Police arrived at the scene. The injured had already succumbed to the injuries at the spot. Inquest is held on the dead body and the dead body is also subjected to post mortem examination. The autopsy report discloses that death is on account of shock and hemorrhage due to the injury to the neck. Injuries were ante mortem in nature and death is homicidal. On the next day, brother of deceased PW4 lodged a written complaint vide Ext. 3 in Assamese. The English translation is as follows: On 10.04.2007, at about 7 pm, my brother Rubul Konwar went to a nearby shop. On the way, One Kantu Borgohain @ Arup Borgohain killed my brother with a machete. I, therefore, pray your honour to take necessary action. 3. The accused is apprehended on 11.04.2007. The investigating officer, on completion of investigation, has filed Final Report and the accused is charged for committing offence under Section 302 IPC. 4. On the way, One Kantu Borgohain @ Arup Borgohain killed my brother with a machete. I, therefore, pray your honour to take necessary action. 3. The accused is apprehended on 11.04.2007. The investigating officer, on completion of investigation, has filed Final Report and the accused is charged for committing offence under Section 302 IPC. 4. In evidence, PW2, who is witness to the incident, has testified to the fact that accused and deceased were going on a bicycle near Shiva Temple. The accused came with a machete, picked up quarrel and assaulted the deceased. He raised hue and cry, people gathered and the accused fled away. 5. The evidence of PW3 discloses that the incident was over, the people had gathered and he was passing by. PW2 informed him about the accused assaulting the deceased and causing the injuries. 6. P.W. 1 is the brother of the deceased and the complainant and his evidence discloses that prior to the incident, accused and the deceased quarreled in his shop, he asked the accused and the deceased to go away. At about 7 pm, he closed his shop, went to his house, had his supper and after some time police came to his house and informed that his brother is killed. PW9 is the VDP Secretary. The president of the VDP goes to the house of PW9 and informs about the incident. Thereafter, he goes to the scene and informed the police, which resulted in General Diary Entry. PW7 is the doctor, who conducted post mortem examination and his evidence reveals that injuries are ante mortem. The death is stated to be homicidal. The trial Court, on the basis of the said evidence, convicted the accused for an offence under Section 302 IPC. Hence, this appeal. 7. We have noticed in almost all cases that FIRs are not registered at the earliest. G.D. Entry will precede FIR. The contents of the GD Entry would invariably constitute FIR. However, same is not treated as FIR and registered as FIR. Subsequent to the GD Entry, cryptic written complaints are received and they are registered as FIR. 7. We have noticed in almost all cases that FIRs are not registered at the earliest. G.D. Entry will precede FIR. The contents of the GD Entry would invariably constitute FIR. However, same is not treated as FIR and registered as FIR. Subsequent to the GD Entry, cryptic written complaints are received and they are registered as FIR. When a person on whose information a GD Entry is made or when a person gives a cryptic complaint and he is in know of the better details of the incident relating to the motive for commission of the offence, the witnesses to the incident and names and overt acts of the accused, the Officer-in-Charges of the Police Stations, on the basis of the cryptic complaint, should not register the FIR. The O/C of the Police Stations should make oral enquiries with the informant about his knowledge of further details of the offence and incorporate the same as further statement in the written complaint submitted and, thereafter, register the FIR. Many a time, without registering the FIR on the basis of GD Entry, investigation commences. Many a time, FIRs are not submitted to the Magistrates immediately. Therefore, following guidelines are laid down for strict compliance by the Officer-in-Charges of the Police Stations to be followed in the investigation of the criminal cases: (i) Whenever an informant gives a cryptic written report of commission of a crime mentioning only the particulars of the deceased and the accused and if the informant has knowledge of the better details of the incident, the Officer-in-Charge of the Police Station should make oral enquiries with the informant about his better knowledge of the particulars of the crime relating to motive, the offenders and the witnesses if any and the information in that regard given by the informant should be incorporated as further statement as a part of the written complaint and, thereafter, to register the same as FIR. (ii) The FIR, so registered as per guidelines at Clause (i), should immediately be transmitted to the jurisdictional Magistrate. Even if it is off the Court hours, the FIR should be submitted to the jurisdictional Magistrate at his residence. (iii) The statement of the police constable deputed to transmit the FIR to the Magistrate should also be recorded under Section 161(3) Cr.P.C.. and should be made part of the Final Report. Even if it is off the Court hours, the FIR should be submitted to the jurisdictional Magistrate at his residence. (iii) The statement of the police constable deputed to transmit the FIR to the Magistrate should also be recorded under Section 161(3) Cr.P.C.. and should be made part of the Final Report. (iv) If there is any delay on the part of the informant-complainant in reporting the police about the crime, the reason for delay if any as stated by the informant-complainant should also be recorded as a part of the further statement and incorporated in the cryptic complaint submitted before it is registered as FIR. (v) Inquest proceedings are to be held in accordance with the provisions of Section 174 Cr.P.C.. The investigating officer, when receives an information that a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed the offence, the investigating officer should immediately communicate the information to the nearest Executive Magistrate empowered to hold inquest under Section 174(4) Cr.P.C. It is optional for the Sub-Divisional Magistrate to conduct inquest in respect of matters under Section 174(1) and mandatory to conduct inquest in the matters relating to Section 174(3). If, in the optional matters, Executive Magistrate does not conduct inquest, the police officer shall conduct inquest in presence of two respectable persons of the area and shall have to submit report to the District Magistrate or to the Sub-Divisional Magistrate. (vi) If the body of the deceased is interned, the exhumation proceeding is to be conducted by the Executive Magistrate. Post mortem, if possible, be conducted at the scene of the exhumation proceeding by Civil Surgeon. (vii) The Investigating Officer should investigate the case from the standpoint of motive for commission of the offence on the part of the accused and record the statement of material witnesses under Section 161(3) Cr.P.C. who can testify the aspect of motive for commission of offence and the statement should be made part of the Final Report. (viii) Inquest of the dead body should be conducted at the spot in the normal circumstances. The dead body should not, unless for any valid reason, be shifted from the place of occurrence to another place for conduct of inquest. (viii) Inquest of the dead body should be conducted at the spot in the normal circumstances. The dead body should not, unless for any valid reason, be shifted from the place of occurrence to another place for conduct of inquest. (ix) The investigating officer should conduct spot panchnama to make note of the incriminating articles or marks found at the scene simultaneously along with the inquest proceedings. (x) The weapons or the incriminating articles, blood stained articles or incriminating materials recovered voluntarily at the instance of the accused under Section 27 of the Evidence Act should necessarily be sent to the Forensic Science Laboratory for examination along with the blood stained clothing of the deceased for identification of the blood group of the stains on the incriminating materials produced voluntarily by the accused with the blood group of the stains found on the clothing of the deceased. Without a FSL report in that regard, any investigation regarding recovery of articles, under Section 27, would be an incomplete investigation and will be of no avail to prove, the recovery as one of the circumstances to prove the guilt (xi) The investigating officer should also send the blood stained articles of the deceased and blood stained articles recovered from the accused to DNA examination, which would precisely prove that DNA of the blood stains on the articles recovered from the accused tally with the DNA of the deceased. (xii) The opinion of the doctor in the post mortem report should be obtained with all clarity. If any confusion regarding the opinion of the death is found in the post mortem report, the investigating officer should seek necessary clarification from the doctor, who conducted the post mortem examination. The investigating officer should also refer the weapons to the doctor, who conducted the post mortem examination for his opinion as to whether injuries seen on the dead body could be caused by the weapons seized. (xiii) Whenever accused are strangers to the witnesses, Test Identification Parade (TIP) should be conducted for identification of the accused by the witnesses at the earliest. Before conducting the TIP, investigating officer should take care that investigating officer should not permit the witnesses to see the accused apprehended. (xiii) Whenever accused are strangers to the witnesses, Test Identification Parade (TIP) should be conducted for identification of the accused by the witnesses at the earliest. Before conducting the TIP, investigating officer should take care that investigating officer should not permit the witnesses to see the accused apprehended. (xiv) In case, where finger prints are available at the scene of offence, steps be taken to take photograph of the finger prints by finger print experts and report of the finger print expert be obtained. (xv) In case of offence committed by fire arms, ballistic reports have to be obtained. The scene of offence should be examined by the ballistic expert and fire arms, bullets and cartridges have to be seized and the materials should be sent to ballistic expert for opinion and report. (xvi) In all investigations relating to Sessions trial, Superintendent of Police should go through the Final Reports and make an endorsement on the final report with regard to the correctness of the investigation done. 8. Coming to the facts of the case, we find that PW4, the brother of the deceased, is the informant. The paradox is that police had informed PW4 about the incident and it is not that PW4 informs the police. Still a mechanically written cryptic report is taken from PW4 to constitute an FIR for registering a case. By the time PW4 had given report vide Ext. 3, it could be inferable that he had full information about commission of offence and presence of three other witnesses, who had witnessed the incident, but nothing is noted in Ext. 3. The evidence of PW9, the VDP Secretary, also discloses that he went to the scene and he informs the police, which resulted in G.D. Entry. There again if the entire case of the prosecution is considered in the context of evidence of PW2, it is quite natural that PW9 and PW4 would have come to know about the presence of PW2 at the scene because he was companion of the deceased. In the GD. Entry or in the FIR, there is no mention about the presence of PW2. It cannot be said that PW4 and PW9 should be disbelieved for the omission. It is the Officer-in-Charge of the Police Station who should be held responsible for the omission. In this case, GD. Entry itself constitutes an FIR. In the GD. Entry or in the FIR, there is no mention about the presence of PW2. It cannot be said that PW4 and PW9 should be disbelieved for the omission. It is the Officer-in-Charge of the Police Station who should be held responsible for the omission. In this case, GD. Entry itself constitutes an FIR. On the other hand, the Investigating Officer belatedly records the statement of PW4 to make it an FIR for registration. Then again, the Officer-in-Charge of the Police Station should have made necessary enquiries with the informant about the information he has received about the motive for the offence and also about the witnesses to the incident if any. No such sincere and needed efforts were made by the Investigating Officer while registering the FIR. These are the lapses, which constitute bad investigation. It is needless to say that a bad investigation necessarily need not go to the benefit of the accused. 9. In the present case, we do not find any good reason to reject the credibility of PW2. The statement of PW2 has been recorded by police on the same day at 9 pm about two hours of the incident and even before recording of Ext. 3 given by PW4. Therefore, on totality of the prosecution case, the evidence of PW2 coupled with the post mortem report clearly establish the guilt of the accused and the order of the Session Court in holding the accused guilty under Section 302 IPC is sound and proper and does not call for any interference. The appeal is accordingly dismissed. 10. The copy of the order be sent to Director General of Police, Assam, Secretary, Home, Government of Assam, and learned Public Prosecutor, Assam, for strict compliance of the observations made and also to give compliance report to the Registry of this Court within one month. 11. The observations and the guidelines for investigation shall also be followed by police in the State of Mizoram, Arunachal Pradesh and Nagaland. Registry to send the copy of the judgment to the Director General of Police, Assam, Secretary, Home, Government of Assam, and also to the Director General of Police and Secretary, Home, Government of Mizoram, Arunachal Pradesh and Nagaland. The Committal Magistrate should insist upon endorsement of the Superintendent of Police before the FIR is formally received. 12. Registry to send the copy of the judgment to the Director General of Police, Assam, Secretary, Home, Government of Assam, and also to the Director General of Police and Secretary, Home, Government of Mizoram, Arunachal Pradesh and Nagaland. The Committal Magistrate should insist upon endorsement of the Superintendent of Police before the FIR is formally received. 12. The State shall pay to the learned Amicus Curiae a sum of Rs. 7,000/-. 13. Registry to send the copy of the judgment to all the Magistrates in the States of Assam, Arunachal Pradesh, Mizoram and Nagaland for guidance. Send back the LCR. __