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2016 DIGILAW 444 (GAU)

Ajit Bora v. State of Assam

2016-05-20

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER : A.K. Goswami, J. Heard Mr. M. Sarania, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 1.11.2006 passed by the learned Additional Sessions Judge, Lakhimpur in Sessions Case No. 113(NL)/2002, convicting the appellant under Section 380 IPC and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for another six months. 3. The appellant, on the intervening night of 10.9.1995 and 11.9.1995, was a Home Guard and was assigned duty in the residence of one Biseswar Bora. There were three other Home Guards, namely Aku Orang, Rupeswar Bora, Lilakanta Sonwal, besides one Lance Nayak Bhadram Konwar, who was the In-charge. 4. It appears that on the basis of information given by the Officer-in-charge of Police Reserve to the Officer-in-Charge of Sadar Police Station, a GD entry No. 383 dated 11.9.1995 was registered and based on that investigation was started. Arms and ammunition belonging to the police department were stolen and these are: one stengun, two rifles, 50 rounds of stengun ammunition and 10 rounds of rifle ammunition. 5. It appears that subsequently, the investigating officer who was entrusted with the investigation of the case pursuant to the information received from the Officer-in-Charge of the Police Reserve, himself filed an ejahar at around 1.00 P.M. and based on the same, North Lakhimpur Police Station case No. 457/1995 under Section 380/120(B)/121/122 IPC was registered. In the said ejahar, the present appellant was implicated with the aforesaid theft of arms and ammunition. It was mentioned that he had fled away with such arms and ammunition. 6. After completion of investigation, charge sheet was submitted against the present appellant as well as two other persons, namely, Dimbeswar Saikia and Krishna Barua @ Keshab Barua, showing all of them as absconders, under Section 380/120(B)/121/122 IPC. It was mentioned in the charge sheet that incriminating materials were also found against Tileswar Saikia, Pulak Saikia and Manas Bora, but they could not be sent up for trial as they had expired in the meantime. 7. It was mentioned in the charge sheet that incriminating materials were also found against Tileswar Saikia, Pulak Saikia and Manas Bora, but they could not be sent up for trial as they had expired in the meantime. 7. After ensuring appearance of the accused persons, the case was committed to the court of Sessions by the learned Magistrate as the case was exclusively triable by the court of Sessions and, accordingly, Sessions Case No. 113(NL)/2002 was registered in the Court of Sessions Judge, FTC, Lakhimpur. Charges under Section 380/34 and 120(B)/121/122 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be tried. 8. During trial, prosecution examined six witnesses. In his statement recorded under Section 313 Cr.P.C., the appellant had taken the plea that he was on leave prior to three days of the date of occurrence and was thus not present on the date of incident. However, defence did not adduce any evidence. On consideration of the evidence on record and upon hearing the learned counsel for the parties, Dimbeswar Saikia and Keshav Barua were acquitted of the charges as no evidence was found against them. The learned trial court, as noticed earlier, convicted the appellant only under Section 380 IPC. 9. Mr. Sarania has submitted that though PW 6, the Investigating Officer, had deposed that in the information given from the police Reserve based on which a GD entry was recorded, name of the appellant was mentioned as the accused person, prosecution had not exhibited the GD entry and, as such, the same is a serious flaw in the prosecution case. The Investigating Officer having been entrusted with the duties and he, in fact, having come to the place of occurrence for investigation on the basis of the GD entry, his own FIR lodged much later cannot be construed as an ejahar in the eye of law as the same is hit by Section 162 Cr.P.C. He has further contended that PW 6 could not have continued with the investigation as he lodged the ejahar and therefore, the entire prosecution is vitiated. There are also discrepancies in respect of the evidence adduced relating to the duty hours of the appellant. There are also discrepancies in respect of the evidence adduced relating to the duty hours of the appellant. That apart, it is clear from the evidence on record that after the duty of the appellant was over, at least from 2.00 or 3.00 A.M. to 5.00 or 6.00 A.M. there was another Home Guard, who was on duty and, therefore, connecting the appellant with the theft committed has no basis. It was also submitted by him that PW 1, the In-charge, in his deposition, did not depose that the appellant had run away. It is also submitted by him that the appellant had not adduced any defence witness and he had merely stated in his examination under Section 313 Cr.P.C. that he was on leave and therefore, it is not akin to the appellant setting up a false case. He has also submitted that if two reasonable views are possible on the basis of the evidence on record, the one favourable to the accused is to accepted and, in the facts and circumstances of the case, the accused is entitled to benefit of doubt. In support of his arguments, the learned counsel has placed reliance on the cases of Baldev Singh v. State of Haryana, reported in (2008) 14 SCC 768 , Iqbal and anr. v. State of Uttar Pradesh, reported in (2015) 6 SCC 623 , Bhim Singh v. State of Uttar Pradesh reported in (2015) 4 SCC 281 , Vikramjit Singh v. State of Punjab, reported in (2006) 12 SCC 306 and Puspa Jamatia v. State of Tripura, reported in 2011 (4) GLT 669. 10. Mr. Das has submitted that on the basis of the evidence on record the learned trial court was justified in convicting the accused appellant under Section 380 IPC. While conceding that GD entry ought to have been exhibited, failure to exhibit the same will not vitiate the prosecution case in the facts and circumstance of the case, he contends. It is submitted by Mr. Das that the ejahar lodged by PW 6 is to be considered to be a previous statement of the Investigating Officer. While conceding that GD entry ought to have been exhibited, failure to exhibit the same will not vitiate the prosecution case in the facts and circumstance of the case, he contends. It is submitted by Mr. Das that the ejahar lodged by PW 6 is to be considered to be a previous statement of the Investigating Officer. Though PW 1 as such had omitted to mention in his deposition that the appellant had fled away after commission of the crime, the evidence of PW 2, PW 5 and PW 6 would go to show that the appellant was not present after the theft had been committed and was absconding and therefore, the prosecution had proved the guilt of the accused beyond reasonable doubt. He has also submitted that there is no universal proposition of law that the informant police officer forfeits his right to investigate. In support of his submission, the learned Public Prosecutor relies on the judgment of the Apex Court in S. Jeevanantham v. State through Inspector of Police, Tamil Nadu, reported in (2004) 5 SCC 230 and T.T. Anthony v. State of Kerala, reported in (2001) 6 SCC 181 . 11. I have considered the submissions of the learned counsel for the parties and have perused the evidence on record. 12. PW 1 had deposed that he was assigned duty along with four other Home Guards in the residence of one Biseswar Bora, PW 5. He had stated that on the date of incident, Rupeswar Bora, PW 2, Ajit Bora (the appellant herein) and Aku Orang, PW 3 were assigned duty and he had himself remained as In-charge. The appellant was assigned duty from 12.00 P.M. to 2 A.M. in the morning. In the morning, he did not find his stengun. Later on, 2 rifles, 10 rounds of ammunition of the rifles and 50 rounds of ammunition of the stengun were also found missing. In his cross-examination, he had stated that from 2 A.M. to 4 A.M., Aku Orang, PW 4, was assigned duty (written as Yaku in the deposition). He also deposed that he had informed about the incident to the Superintendent of Police over telephone and as instructed he had also lodged a written information before Lakhimpur Police station. 13. In his cross-examination, he had stated that from 2 A.M. to 4 A.M., Aku Orang, PW 4, was assigned duty (written as Yaku in the deposition). He also deposed that he had informed about the incident to the Superintendent of Police over telephone and as instructed he had also lodged a written information before Lakhimpur Police station. 13. PW 2 deposed that he was on duty from 9.00 P.M. to 12.00 P.M. at night and after completing his duty he went to sleep and in the morning he was woken up by Bhadram Konwar, PW 1, who stated that stengun, rifle etc. were missing and the appellant was also found missing. 14. PW 3 is the mother of the present appellant and she had merely stated that her son was working as a Home Guard at the relevant point of time. 15. PW 4 had deposed with regard to the theft of the arms and ammunition as informed to him by PW 1. In his cross-examination he stated that he did not know who had stolen away the arms and ammunition as he was sleeping at that time. He also stated that he had no doubt on any one. 16. PW 5 is the person in whose house the Home Guards were deployed for his security and he deposed that one early morning, the In-charge of the Home Guards by the name of Konwar (apparently PW 1), informed him that one person who was in the night duty had fled away by taking away his arms and ammunition. Though the name was mentioned to him, he had forgotten the name and he had asked PW 1 to inform the police station immediately. He stated that he was witness to the seizure list, Ext. 1. 17. PW 6 had deposed that after reaching the place of occurrence he had taken the statements of the Home Guards and, thereafter, lodged an ejahar based on the information gathered. He had seized one house guard book, one stengun magazine with 99 rounds of ammunition and a magazine pouch vide Seizure list, Ext. 1. He had deposed that he could not arrest the appellant as he was absconding. In his cross-examination, he had stated that the information given by PW 1 in writing was not accepted by him as he had already commenced investigation. 1. He had deposed that he could not arrest the appellant as he was absconding. In his cross-examination, he had stated that the information given by PW 1 in writing was not accepted by him as he had already commenced investigation. A subsequent GD entry was registered being GD entry No. 384 but prior to that GD entry No. 383 was already registered based on the information received from the Police Reserve. 18. When PW 6 had declined to accept the written information given by PW 1 to treat the same as an FIR on the ground that GD entry was already registered and investigation had commenced, it is not understood why PW 6 filed the ejahar on his own accord. To that extent PW 6 had taken two contradictory stands. Ext. 2, the ejahar lodged by PW 6, in the circumstances, cannot lend any support to the prosecution case. 19. With regard to the submission of Mr. Sarania that an informant Investigating Officer cannot conduct investigation in the same case appears to be not well-founded. The case relied upon by Mr. Sarania in Puspa Jamatia (supra) turns on its own facts. Puspa Jamatia was in police custody in connection with an extremist related incident and during the course of interrogation, Puspa alleged to have confessed that he along with some others had killed three kidnapped persons and buried them in jungle and that he allegedly led police to recover the dead bodies. The Investigation Officer lodged a suo moto complaint and himself started investigation. In the facts and circumstances of the case, it was opined that such practise is best avoided so that there may not be any occasion to suspect a fair and impartial investigation. In Puspa Jamatia (supra), the Division Bench had relied on the case of Megha Singh v. State of Haryana reported in (1990) 11 SCC 709, which was also referred to in Jeevanathan (supra). In Jeevanathan (supra), PW8 had conducted the search and recovered the contraband article and registered the case and the article seized from the appellants was narcotic drug. The counsel for the appellants could not point out any circumstances by which the investigation caused prejudice or was biased against the appellants and, accordingly, the Apex Court held that the Court was unable to find any sort of bias in the process of investigation. The counsel for the appellants could not point out any circumstances by which the investigation caused prejudice or was biased against the appellants and, accordingly, the Apex Court held that the Court was unable to find any sort of bias in the process of investigation. The Apex Court also relied on a judgment rendered in State v. V. Jayapaul reported in (2004) 5 SCC 233, wherein it was stated as follows: “We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. It at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to law down a broad and unqualified proposition, in the manner in which it has been done…” 20. Thus, the position that emerges is that there is no underlying principle that when a police officer, on the basis of information received, makes an FIR incorporating his name as the informant, he loses and forfeits his right to investigate. At the most, such investigation can be questioned on the ground of bias on the part of the police officer, which again will revolve around on the peculiar facts and circumstances of each and every case. 21. Mr. Sarania is right in submitting that there was another Home Guard, who was assigned duty after the duty of the appellant had got over. There were two Home Guards who had rendered duty at least from 12:00 O'clock at night to the morning hours. The Home Guard, who had attended duty after the appellant, was present and available all throughout and had also deposed during trial as PW4. Apparently, PW4 was sleeping during his duty hours as he had not disputed his duty hours. May be that is the reason why PW 4 was relieved of his duties as a Home Guard from the house of PW 5 from the next day of the occurrence, as he himself had deposed. 22. PW 1, of course, did not say in his evidence that the appellant had gone missing. It appears to be a clear case of omission. 22. PW 1, of course, did not say in his evidence that the appellant had gone missing. It appears to be a clear case of omission. PW 2, in specific terms, had stated that PW 1 had informed him that the appellant had gone missing along with the arms and ammunition. PW 5, though did not name the person as such, had stated that he was also informed by PW 1 that a night guard had fled away by taking the arms and ammunition. Defence had not suggested that it was not the appellant but some other Home Guard, who had fled away with the arms and ammunition. It is also relevant to note that till the time of submitting the charge-sheet, the appellant was not traceable. Although in his Section 313 Cr.P.C. statement, the appellant had stated that he was on leave for three days prior to the date of occurrence and thus not on duty on the fateful night, the appellant did not adduce any evidence with regard to the plea of alibi that he had set up. It is not the case of the defence that no arms and ammunition were stolen and a totally false case had been hoisted. In these circumstances failure to recover the stolen articles will not be of any consequence. The factual matrix in Iqbal (supra) was in an entirely different contextual matrix. That was a case of dacoity with murder and the identification of the accused was also an issue and in the aforesaid context, it was held by the Apex Court that in absence of any other evidence like recovery of stolen jewellery or other articles strengthening the prosecution case, conviction could not be based solely on the identification of the accused in the test identification parade. 23. In Bhim Singh (supra) and Baldev Singh (supra), it was laid down by the Apex Court that when a conviction is based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances and that if there is any snap of chain, the accused is entitled to benefit of doubt. 24. 23. In Bhim Singh (supra) and Baldev Singh (supra), it was laid down by the Apex Court that when a conviction is based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances and that if there is any snap of chain, the accused is entitled to benefit of doubt. 24. In Vikramjit Singh (supra), the Apex Court laid down that if two views of a story appear to be probable, the one that was contended by the accused should be accepted and that Section 106 of the Evidence Act would come into play only when the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. 25. In the instant case, the clear case of the prosecution is that the appellant was on duty at least for a part of the night. On that night, arms and ammunition were stolen. The appellant had been missing from the house where he was deputed to do duty as a Home Guard. The appellant did not examine any witness including himself and failed to establish that he was on leave though such a plea was taken by him in his Section 313 Cr.P.C. statement. The fact that the arms and ammunition were stolen and the appellant had gone missing, in the considered opinion of the Court, establishes beyond reasonable doubt that it was the appellant, who had committed the theft. 26. In the totality of the facts and circumstances of the case, I am of the considered opinion that there is no merit in this appeal and accordingly, the same is dismissed. The appellant will surrender and serve out the sentence. 27. Registry will send back the LCR.