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2014 DIGILAW 50 (SIK)

State of Sikkim v. Tempa Lendup Lachenpa

2014-07-28

SUNIL KUMAR SINHA

body2014
JUDGMENT Sinha, J. 1. Being aggrieved with the judgment of acquittal dated 27.08.2013 passed in Sessions Trial Case No.04 of 2012 by the Sessions Judge, Special Division-II at Gangtok, East Sikkim, the State has filed this Appeal. 2. By the impugned judgment, the respondent has been acquitted of the charges framed under Sections 307 and 323 IPC and Section 25(1-B)(a) of the Arms Act, 1959. 3. The facts, briefly stated, are as under :- 3.1 On 05.03.2011, at about 2315 hours, the four friends, namely, Penjore Dorjee (PW3), Jigmi Dorjee Bhutia (PW2), Ngangom Winnison (PW4) and Kunchok Choppel Tonyot (PW5) had gone to X-Cape Discotheque, Vajra, Gangtok. Respondent and his girlfriend were also present in the discotheque. There some hot exchanges took place between the respondent and these persons, as a result of which they were taken out of the discotheque by the security personnel. The allegations are that, thereafter, the respondent took out a pistol and fired upon Penjore Dorjee (PW3), who received two injuries on the lower portion of his neck. 3.2 The incident was witnessed by Penjore Dorjee (PW3) himself and his friends, namely, Jigmi Dorjee Bhutia (PW2), Ngangom Winnison (PW4) and Kunchok Choppel Tonyot (PW5). The incident was reported to the police station by Jigmi Dorjee Bhutia (PW2), on which a First Information Report (Exbt.8) was registered under Section 307 IPC. Since the respondent was not previously known to the informant or the eye witnesses, report was lodged against unknown person. 3.3 The further case of the prosecution is that, hearing the noise of gunshot, Loday Tshering Lepcha (PW11), a police head constable, immediately reached the place of occurrence and saw the respondent standing there with a pistol in his hands. He told the respondent to keep the pistol in his pocket and took him to the police station where his arrest was made. The pistol was also seized by the police. It revealed in the investigation that it was a licensed pistol on the name of the respondent, however, the period of license had expired. 3.4 The victim (PW3) was sent for his medical examination and was examined by Prof.(Dr) Suvamoy Chakraborty (PW16). He noticed a burnt mark on the right shoulder and an entry wound on the lower part of the right side of the neck. He also noticed a similar exit wound on the left side of the lower neck. 3.4 The victim (PW3) was sent for his medical examination and was examined by Prof.(Dr) Suvamoy Chakraborty (PW16). He noticed a burnt mark on the right shoulder and an entry wound on the lower part of the right side of the neck. He also noticed a similar exit wound on the left side of the lower neck. The size of injury (both) was 1 x 1 cm. CT Scan of the neck was also done, however, no cartilage injury, or foreign body etc. were found. The pharynx and esophagus were found normal. Dr. Chakraborty (PW16) opined that the injuries were simple injuries. He suspected that fire arm would have been used for causing the above injuries. The MLC report is Exbt.9. 3.5 The respondent was put for identification on 04.05.2011 and was duly identified in the Test Identification Parade (for short ‘TIP’). 3.6 The prosecution came with the case that the respondent had inflicted the above injuries of the victim by using his pistol, whose period of license had expired, therefore, he was liable for punishment under the aforementioned Sections of the IPC and the Arms Act. 3.7 The case of the prosecution was based on eye witnesses account of Penjore Dorjee (PW3), Jigmi Dorjee Bhutia (PW2), Ngangom Winnison (PW4) and Kunchok Choppel Tonyot (PW5) and supporting evidence of Loday Tshering Lepcha (PW11) and Prof. (Dr) Suvamoy Chakraborty (PW16). The learned Sessions Judge did not rely on the testimonies of the eye witnesses and held that it was not proved beyond all reasonable doubts that the respondent had attempted the life of the victim in the above manner by using his pistol. The Sessions Judge also held that it was not established that the injuries sustained by the victim were gunshot injuries. The Sessions Judge also did not rely on the seizure of pistol from the possession of the respondent and further the fact that the said pistol was used by the respondent for causing such injuries to the victim. The respondent, thus, was acquitted of the charges framed against him. Hence this Appeal. 4. Mr. Pradhan, learned Additional Advocate General appearing on behalf of the Appellant/State, has argued that the findings in relation to the injuries not proved as gunshot injuries is perverse; the eye witnesses had proved the incident; and the learned Sessions Judge erred in law in not accepting the testimonies of the eye witnesses. 5. Hence this Appeal. 4. Mr. Pradhan, learned Additional Advocate General appearing on behalf of the Appellant/State, has argued that the findings in relation to the injuries not proved as gunshot injuries is perverse; the eye witnesses had proved the incident; and the learned Sessions Judge erred in law in not accepting the testimonies of the eye witnesses. 5. On the other hand, Mr. K. T. Bhutia, learned Senior Counsel appearing on behalf of the respondent, has opposed these arguments and supported the judgment passed by the Sessions Court. 6. Having heard learned Counsel for the parties, I have perused the records. 7. Prof. (Dr.) Suvamoy Chakraborty (PW16) had examined the victim and had found the above two injuries on the lower portion of his neck. According to him, these injuries were simple injuries and he suspected that the weapon used for inflicting those injuries may be a firearm. He admitted in his evidence that the above injuries were two dimensional and the depth of the injuries were not given in the MLC report (Exbt.9). That apart, he clearly deposed that he had not mentioned in the report that skin at the point of injuries were inverted and averted. He also did dot find presence of grease colar, smoke, singing or abrasion in the injuries. Not only this, he did not find deposition of powder or smoke on the entrance track. CT scan was also done but nothing abnormal could be detected therein and the larynx and oesophagus all were found intact. Blood vessels, trachea, thyroid and vocal cords were also intact. Prof. (Dr.) Chakraborty (PW16), has also not found any track between the two injuries, therefore, he clearly deposed that he had not given the finding of connectivity between the two neck injuries. He further admitted in the cross examination that depth of the injury, track of the bullet, different sizes of entry wound and exit wound, presence of grease colar, smoke, singing, abrasion are all characteristics of firearm injuries which were not present in the instant case. 8. The case of the prosecution was that, respondent had fired upon the victim by pistol from a very short distance and the bullet hitting on the lower portion of the neck from one side had made its exit from the other side. In such situation, the track of bullet must have been found on medical examination. 8. The case of the prosecution was that, respondent had fired upon the victim by pistol from a very short distance and the bullet hitting on the lower portion of the neck from one side had made its exit from the other side. In such situation, the track of bullet must have been found on medical examination. Not only this, if in fact the above injuries were caused by a bullet, ordinarily the dimensions of entry and exit wounds would have been different. That apart, as we find from the medical report, no characteristics of a gunshot injury like presence of gun powder, grease color, smoke, etc., were found. 9. The learned Sessions Judge has elaborately discussed all these points and referring to Modi’s Medical Jurisprudence and Toxicology (23rd Edition, 5th Reprint 2010, Butterworths Wadhwa) has held that it was not proved that the injuries sustained by the victim on his neck were firearm injuries. have carefully gone through the discussion made by the Sessions Judge on the above aspects. I am of the view that the learned Sessions Judge was fully justified in recording the said finding and the same cannot be held to be perverse. 10. So far as eye witness account is concerned, Penjore Dorjee (PW3-victim) has deposed in his examination-in-chief that when he was coming out of the discotheque, he saw a man shooting at him. Thereafter, he fell down and became unconscious. He deposed that he could not identify the weapon. He was not declared hostile by the Public Prosecutor. Thus, his evidence would show that he had seen that someone had inflicted injuries by shooting upon him, but he could not identify that person. That is to say, that he did not depose that in fact the respondent/accused had inflicted gunshot injuries to him and a pistol was used for causing his injuries. 11. The other two eye witnesses, namely, Jigmi Dorjee Bhutia (PW2) and Kunchok Choppel Tonyot (PW5), though have deposed that they had seen the respondent/accused inflicting gunshot injuries upon the victim, but this fact was omission in their diary statements recorded under Section 161 of the Code of Criminal Procedure. Apart from that, there were other omissions in their evidence. In fact, they have exaggerated their version before the Court. Apart from that, there were other omissions in their evidence. In fact, they have exaggerated their version before the Court. In diary statements they simply stated that they had heard a sound of explosion, whereas in the Court evidence they deposed that they had seen the respondent/accused firing upon the victim by a pistol. Thus, it was a vital omission on a material point. Therefore, the Sessions Judge has rightly disbelieved their testimonies. 12. Mr. Pradhan has very much emphasized on the evidence of Ngangom Winnison (PW4). According to him, his sole testimony was sufficient to hold the respondent/accused guilty of the said offence. 13. Ngangom Winnison (PW4) has deposed that he had seen the respondent/accused taking out a pistol and firing upon the victim. The respondent/accused was not previously known to the witnesses including Ngangom Winnison (PW4). It is for this reason the TIP was arranged. In TIP the respondent was identified. We note from the record that the respondent was arrested on 05.03.2011, whereas the TIP was conducted on 04.05.2011. It comes in the evidence of Ngangom Winnison (PW4), that he along with his friends (other eye witnesses and victim) had gone to the Court for the purpose of Test Identification Parade. First time TIP could not take place. It was conducted later on. There is a long gap between the arrest of the respondent and the TIP. No reasonable explanation has been given about the delay. The witnesses had visited the Court twice for the TIP. Thus, a possibility of seeing the respondent/accused cannot be fully ruled out. 14. Ngangom Winnison (PW4) was throughout accompanying the victim Penjore Dorjee (PW3). If Ngangom Winnison (PW4) had identified the respondent/accused, there was no reason as to why he would not have been identified by the victim, Penjore Dorjee (PW3) himself. It is not a case in which the victim could not see that from where the pistol was fired. Victim says that he had seen a man shooting upon him. But even after that, he could not identify him. As we have already said, the victim has not been declared hostile. In the light of the above evidence of victim, the evidence of Ngangom Winnison (PW4) appears to be suspicious that he, in fact, had witnessed that the respondent/accused had fired upon the victim. 15. But even after that, he could not identify him. As we have already said, the victim has not been declared hostile. In the light of the above evidence of victim, the evidence of Ngangom Winnison (PW4) appears to be suspicious that he, in fact, had witnessed that the respondent/accused had fired upon the victim. 15. The case of the prosecution was that, the bullet had passed through the neck tissue causing entry and exit wounds. Ngangom Winnison (PW4) has supported the case of the prosecution saying that the pistol was fired before him by the respondent/accused and the above gunshot injuries were sustained by the victim, whereas, according to Prof. (Dr.) Chakraborty (PW16), he did not find any characteristic of the gunshot injuries on the neck of the victim. We have already held that the prosecution has utterly failed to prove that the victim had sustained gunshot injuries. Thus, there was discrepancy in the eye witnesses account of Ngangom Winnison (PW4) and the medical evidence. This also creates a doubt on the testimony of Ngangom Winnison (PW4). 16. The incident took place on the day of Losar Festival. It comes in the evidence of Loday Tshering Lepcha (PW11) that people were bursting crackers on the said day. Loday Tshering Lepcha (PW11), who was on duty in the said area, when reached the place of occurrence, saw that the victim was lying on the ground and the accused was standing at a nearby place in a black colour suit. The friends of the victim were also present there. He had helped them to take the victim for medical treatment. According to him, after the injured boy/victim was sent to the hospital, he came near the respondent/accused who was holding one small revolver in his hand. He told him to put the gun inside his pocket and come with him to the police station. Thereafter, he brought the accused to the police station where the seizure of gun was made and the respondent/accused was arrested. This evidence appears to be unnatural. If Loday Tshering Lepcha (PW11) had helped for taking the victim to the hospital in the above manner, it must have consumed some time. Thereafter, he brought the accused to the police station where the seizure of gun was made and the respondent/accused was arrested. This evidence appears to be unnatural. If Loday Tshering Lepcha (PW11) had helped for taking the victim to the hospital in the above manner, it must have consumed some time. It does not appear to be reasonable that the respondent/accused, after inflicting the gunshot on the victim would remain there for such a long time allowing the head constable to come to him and would quietly accompany to the police station along with the revolver. In normal human conduct, a person after committing such a heinous offence would immediately try to run away from the place of occurrence and not that he will wait for the police officer to come and would gently accompany him to the police station with the gun. This creates a doubt on the testimony of Loday Tshering Lepcha (PW11), as also the seizure of the pistol from the possession of the respondent/accused. That apart, Kunchok Choppel Tonyot (PW5), who was a witness to the alleged seizure of the pistol, has turned hostile and has not supported its seizure from the possession of the respondent/accused. 17. In Ganesh Bhavan Patel & Anr. vs. State of Maharashtra : AIR 1979 CRI.L.J. 51, it was held that:- “………….although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should use the words of Lord Russel of Killowen– “always give proper weight and consideration to such matters as (1) the views of the Trial Judge as to the credibility of the witnesses;(2)the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal”. 18. In Ajit Savant Kajagavi vs. State of Karnataka : 1997 CRI.L.J. 3964, it was held that :– “(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court. (5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. (6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.” 19. In Budh Singh and others –vs.-State of U.P). (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.” 19. In Budh Singh and others –vs.-State of U.P). (2006) 9 SCC 731 , it was held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. 20. In V.N. Ratheesh –vs.-State of Kerala, AIR 2006 SC 2667 , it was held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. The Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Supreme Court referred to the decision rendered in the matter of Bhagwan Singh and others –vs.-State of Madhya Pradesh (2002 (2) Supeme 567). It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 21. In Ramesh Babulal Doshi –vs.-State of Gujrarat (1996) 9 SCC 225 , the Supreme Court said that “While sitting in judgment over an acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative, the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can then-and-then only reappraise the evidence to arrive at its own conclusions. 22. It is not a case in which the judgment may be said to be unreasonable or a case in which convincing materials have been unjustifiably eliminated in the process of appreciation. I have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Judge were perverse or otherwise unsustainable. After going through the entire evidence available on record, I do not find any compelling and substantial reason to interfere with the judgment of acquittal. 23. For the aforesaid reasons, the Appeal is liable to be dismissed, and is accordingly dismissed.