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2017 DIGILAW 1136 (GAU)

Ato Yimchunger v. State of Nagaland

2017-08-19

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : SONGKHUPCHUNG SERTO, J. 1. This is an appeal under Section 372(2) of the Criminal Procedure Code, 1973, directed against the judgment and order, dated 25-2-2008, passed by the learned Deputy Commissioner (Judicial), Dimapur, Nagaland, in G.R. Case No. 256/1999, convicting the appellants under Section 372(2) of IPC and sentencing them to undergo rigorous imprisonment for a term of 7 years and fine of Rs. 25,000/- each and in default to undergo further rigorous imprisonment for a period of 1 (one) year. The brief background of the case is as follows; On 29-5-1999 at about 5:30 p.m. while the appellants were on escort duty of the then Minister of Road & Bridges along with four other personnel of Nagaland Armed Police, namely Shri, Lipok Ao, S.I., Shri. Akaho Sumi, Constable, Shri. Yingphong Konyak, Constable and Shri. Onen Ao, Constable Driver and were proceeding towards the Minister's residence at Dimapur, they came across one Maruti Zen Car bearing Registration No. NL-01-25523 at 6th Mile near Petrol Pump which was driven by one Mr. Michael Mary with two of his friends namely, Mr. Atina Suokhrie and Mr. Pangertemsu Ao in it. While the two vehicles i.e. escort vehicle of the Minister and Maruti Zen car were passing each other they nearly had a head on collision, and on instinctive reaction the occupants of the Maruti Zen car shouted at the escort party. After reaching the Minister's residence, the escort party went after the Maruti Zen car and found it parked at the road side between Patkai Bridge and the Chumukedima Police Check Gate. After the escort vehicle passed by the Maruti Zen car and as soon as the appellants and their party got down from the vehicle the three boys turn their Maruti Zen car and started driving towards Dimapur. The Oikuce escort on seeing the boys driving away started firing at them with their service weapons. In the firing Michael who was driving the vehicle and his friends Atina Suokrie and Pangertemsu Ao suffered serious injuries. Michael survived for that time but died after few days at a hospital in Delhi, Mr. Atina Suokrie died instantly at the spot and Pangertemsu Ao had his right hand amputated due to the injuries suffered in the firing. Following the incident an FIR was registered at Diphupar Police Station being Diphupar Police Station Case No. 42/1999, under Sections 302/307/326/34, IPC. Atina Suokrie died instantly at the spot and Pangertemsu Ao had his right hand amputated due to the injuries suffered in the firing. Following the incident an FIR was registered at Diphupar Police Station being Diphupar Police Station Case No. 42/1999, under Sections 302/307/326/34, IPC. After the investigation was completed charge-sheet was filed and the case was tried by the Deputy Commissioner (Judicial), Dimapur by registering G.R. Case No. 256/1999. The learned Addl. Deputy Commissioner (Judicial), Dimapur, vide his order, dated 18-12-2002, passed in G.R. Case No. 256/1999, acquitted all the accused from the charge against them by giving them benefit of doubt. The State of Nagaland preferred an appeal against the acquittal judgment and the same was registered as Criminal Appeal No. 1(K) of 2003 in the Kohima Bench of this High Court. The Division Bench of this High Court by order, dated 17-5-2007 set aside the acquittal judgment and order of the Addl. Deputy Commissioner (Judicial), Dimapur, and sent back the record to the Deputy Commissioner (Judicial), Dimapur, to examine the accused persons in terms of the provision of Section 313(1)(b) of Cr. P.C. and then to dispose the case in accordance with law. The relevant portion of the judgment and order is reproduced here below : "29. Conscious of the fact that an appellant or revisional Court shall make serious endeavour to rectify the defect of the trial Court's omission to put to the accused incriminating pieces of evidence appearing against him by asking the counsel for the accused, even at the appellate stage, to say as to what explanation if any, the accused has to offer to such incriminating pieces of materials on record, when we concentrate on the case at hand, we are confronted with a wholly undesirable situation inasmuch as we notice, as we have already indicated above, that the learned Court below has not put to any of the accused any of the incriminating pieces of evidence appearing against him. Thus, though there is an examination under Section 313, Cr.P.C., there is really no legally permissible examination under Section 313, Cr.P.C. In such circumstances, if we consider the evidence on record, which appear incriminating against the accused-respondents, the accused-respondents would suffer serious prejudice. When the attention of Mr. Sharma was drawn by us to this aspect of the case, Mr. Thus, though there is an examination under Section 313, Cr.P.C., there is really no legally permissible examination under Section 313, Cr.P.C. In such circumstances, if we consider the evidence on record, which appear incriminating against the accused-respondents, the accused-respondents would suffer serious prejudice. When the attention of Mr. Sharma was drawn by us to this aspect of the case, Mr. Sharma has not, in his fairness, disputed the fact that there was virtually no examination of the accused-respondents under Section 313, Cr.P.C. as is warranted by law. 30. What crystallizes from the above discussion is that the finding of acquittal, recorded by the learned Trial Court, is completely against the evidence on record. At the same time, in order to Judge as to whether or not the evidence on record was sufficient to hold the accused-respondents guilty of the charges framed against them, this Court has the duty to look into the examination of the accused concerned under Section 313(1)(b), Cr.P.C., to find out as to what explanation the accused-respondents had offered. When we turn to the examination of the accused-respondents under Section 313(1)(b), Cr.P.C., we find ourselves facing a situation, wherein there is no explanation offered by the accused-respondents to the incriminating pieces of evidence appearing against them, for, the learned trial Court has not put to the accused-respondents any of the circumstances, which appear incriminating against the accused-respondents. In such circumstances, while the acquittal of the accused-respondents cannot be maintained. It is also not permissible to reverse the finding of acquittal into a finding of guilt. The only remedy left before us is to remand the case for trial from the stage of examination of the accused-respondents under Section 313(1)(b), Cr.P.C. 31. With the above end in view, we hereby set aside the impugned judgment and order, whereby the accused-respondents stand acquitted, and remand the case for examination of the accused-respondents under Section 313(1)(b), Cr.P.C. Considering, however, the fact that we have found that the learned Additional District Magistrate, who had presided over the trial, has shown complete ignorance of the procedure of criminal trial, particularly, the procedure of that of a session triable case and also revealed complete lack of knowledge of the fundamental principles of criminal jurisprudence, we direct that the case shall stand remanded to the Deputy Commissioner (Judicial), Dimapur, who shall examine the accused-respondents himself in terms of the provisions of Section 313(1)(b), Cr. P.C. and, then, dispose of the case in accordance with law." 2. After receiving the copy of the above stated judgment and order of this High Court passed in 17-5-2007 in the Criminal Appeal No. 1(K) of 2003. The learned Deputy Commissioner (Judicial), Dimapur proceeded as directed and came to the conclusion that two of the accused persons namely, Ato Yimchunger, Constable and Mayang Ao, Constable are guilty of having committed the offence under Section 326 of the IPC and sentenced them to a term of 7 years rigorous imprisonment and a fine of Rs. 25,000/- each and in default to undergo further rigorous imprisonment of 1 years each. The operative portion of the judgment and order, dated 25-2-2008 is given here below : ORDER "The accused namely constable Ato Yimchunger and the accused constable Mayang Ao are convicted under Section 326 of the Indian Penal Code and sentence to undergo rigorous imprisonment for a term of 7 years each and also imposed a fine of Rs. 25,000/- each 1/d to undergo further R.I. for 1 (one) year each. Accused S.I. Lipok Ao and accused constable driver Onen Ao are acquitted. Accused constable Akhaho Sumi is absconding. His trial shall remain suspended till such time he is arrested and produced in the Court to stand trial. Judgment pronounced this day the 25th Day of February 2008. Sd/- (L.K. Achumi) Deputy Commissioner (Judicial) Nagaland: Kohima". 3. Being aggrieved, the two Constables who were convicted came to this High Court on appeal challenging the judgment and order of the learned Deputy Commissioner (Judicial), Dimapur. The same was registered as Criminal Appeal No. 1(K) of 2008. This High Court on 26-3-2010 dismissed the appeal on the ground that it was not maintainable. The appellants, then filed SLP before the Hon'ble Supreme Court and the same was registered as SLP No. 6010/2010. On 26-7-2010 the Hon'ble Supreme Court disposed the SLP. The relevant portion of the order passed on 26-7-2010 is as follows : "The special leave petition is dismissed. However, the petitioners are permitted to file appeal themselves with a fresh Vakalatnama." 4. On 26-7-2010 the Hon'ble Supreme Court disposed the SLP. The relevant portion of the order passed on 26-7-2010 is as follows : "The special leave petition is dismissed. However, the petitioners are permitted to file appeal themselves with a fresh Vakalatnama." 4. Pursuant to the order passed by the Hon'ble Supreme Court in the SLP mentioned above, the appellants have come to this Court filing the present appeal seeking for quashing and setting aside the judgment and order, dated 25-2-2008, of the Deputy Commissioner (Judicial), Dimapur, passed in G.R. Case No. 256/1999 on the grounds given here below. While the appeal was pending, through a Criminal Misc. Application this Court was informed that one of the appellant namely, Mr. Ato Yimchunger has died on 26-4-2013. Therefore, his name was deleted from the appeal. Grounds of appeal: "1. For that admittedly no post-mortem examination was done on the dead body of Atina Suokrie and Michael Mary and there is no evidence that Pangertemsu Ao received injury hit by the accused appellants, as such the learned court below committed error in convicting the appellants under Section 326, IPC. 2. For that the learned trial Court having held that "the present accused were holding different arms and there is no clear cut evidence as to which bullet did the damage" as such committed illegality in convicting the appellants under Section 326, IPC. 3. For that the learned trial Court committed illegality in convicting the appellants u/S. 326, IPC on the basis of misconception that "the accused have admitted that they have fired at the car, but their intention was to defuse the tyres to prevent the car from escaping", in as much as, the appellants accused never admitted that they hit the victims rather they said that they came to know about the death of one occupant and suffering injury by two others subsequently. 4. For that the learned trial Court committed illegality in convicting the appellants/accused under Section 326, IPC on the basis of conjecture and surmises that "the fact remains that by indiscriminate and unrestrained firing they cause grievous hurt to the occupants of the car by means of shooting instruments". 5. 4. For that the learned trial Court committed illegality in convicting the appellants/accused under Section 326, IPC on the basis of conjecture and surmises that "the fact remains that by indiscriminate and unrestrained firing they cause grievous hurt to the occupants of the car by means of shooting instruments". 5. For that the learned trial Court committed illegality in convicting the appellants under Section 326, IPC without considering their statement made under Section 326, IPC in its true perspective, in as much as, it is evident that the occupants of the car fired then the accused fired for protecting self defence and the firing was not voluntary as such the impugned judgment order, dated 25-2-2008 is liable to be set aside and quashed. 6. For that while remanding the case, this Hon'ble Court directed that the trial Court shall proceed from the stage of examination of the accused under Section 313(1)(b), Cr.P.C., as such, the learned trial Court committed illegality in convicting the on the basis of statement under Section 313(1)(b), Cr.P.C. reversing the order of acquittal without having any evidence justifying conviction of the appellants under Section 326, IPC. 7. For that this Hon'ble Court remanded the case directing to give opportunity to the accused for making statement under Section 313, Cr.P.C., as such, the prosecution is not supposed to improve their case after remand and situated thus converting the decision of acquittal to conviction amounts to review of the earlier judgment, as such the impugned judgment and order is liable to be set aside and quashed. 8. For that the appellants/accused were earlier acquitted as such the learned trial Court committed illegality in convicting them subsequently on the basis of some set of so called evidence recorded under Section 313, Cr.P.C. 9. For that the criminal principles of criminal jurisprudence is that in order to convict, the guilt of the accused are required to be proved beyond all reasonable doubt as such the learned trial Court committed illegality in convicting the accused without there being any definite evidence that they hit the victims as such the impugned judgment and order is liable to be set aside and quashed. 10. 10. For that in the instant case no Mens rea against the appellants is established by the prosecution, in the contrary the evidence suggest that the appellants were police personnel and detailed for escorting the Minister and they were duty bound and concerned about the safety and security of the Minister of the State. As such, the learned Deputy Commissioner (Judicial), Dimapur has erroneously recorded conviction against the appellants. 11. For that the evidence on record that the occupants of the Maruti Zen (private Car) fired first and provoked the Minister's security personnel, but the learned Deputy Commissioner (J) over looked to ascertain whether the occupants of the Maruti Zen were illegally holding arms in their possession as members of unlawful gang/assembly and had illegal intention to cause harm to Minister and property of the State. 12. For that in the instant case the prosecution failed to connect the appellants with alleged crime, thus failed to discharge the onus to prove the charge against the appellants/accused beyond reasonable doubts, benefits where of is legally available to the appellants/accused to be acquainted on benefit of doubts, as such the impugned order of conviction and sentence recorded by the Deputy Commissioner (J), Dimapur is liable to be set aside and quashed. 13. For that in any view of the matter the impugned judgment and order dated 25-2-2008 is liable to be set aside and quashed." 5. Mr. B. Devnath, learned counsel for the appellants submitted in support of the case of the appellants as follows: (i) That the prosecution has utterly failed to prove as to whose bullet hit which of the victims. The learned counsel further submitted that it is stated by the prosecution that the injuries on the victims were caused by bullets fired from AK-47, therefore, Shri. Mayang Ao, one of the appellants who was holding M-20 Rifle has nothing to do with the injuries suffered by the victims as such, he was wrongly held guilty of the offence under Section 326 of IPC. The learned counsel further submitted that the Police found empty cases of AK-47 and there is no evidence of having recovered of any of the empty case M-20 Rifle, therefore, the appellant Mr. Mayang Ao who was holding M-20 Rifle could not have been guilty of the offence charge against him. Mr. B. Devnath, also pointed out the fact that Mr. Mayang Ao who was holding M-20 Rifle could not have been guilty of the offence charge against him. Mr. B. Devnath, also pointed out the fact that Mr. Akaho Sumi, one of the accused had absconded since the incident happened and he was not there during the trial. With this the Ld. counsel submitted that there are chances that the absconder might have committed the crime, therefore, the appellants could not have been held guilty and punished for the crime committed by him. (ii) That the trial Court had indicated that shots were fired at the tyres of the car and this shows that the case of the appellants that they only fired at the tyres of the vehicle to stop the victims who were suspected to be either underground or anti-social element who could be security risk to the Minister is substantiated and that there is no evidence to show that the appellants had any intention or motive to cause dead or injuries to the victims. That Deputy Commissioner (Judicial), Dimapur, was directed only to record the statements of the appellants and the other accused under Section 313 of Cr. P.C. and to dispose the case but he went further and held the appellants guilty of the offence under Section 320 of IPC under the same set of evidence by which he had earlier held the appellants not guilty, therefore, the judgment is illegal. (iii) That the firing was provoked by the victims who fired first at the appellants and the appellants had fired in self defense, therefore, they cannot be held guilty of the offence charged against them. (iv) That the impugned judgment was passed on mere suspicion and suspicion however grave it may be cannot take the shape of evidence. The learned counsel for in support of his submission cited the judgment of the Hon'ble Supreme Court passed in the case of Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Ltd. etc. etc. v. State of Maharashtra, reported in AIR 1998 SC 1937 , para 5. The same is reproduced here below : "5. The validity of the said order of 1984 was challenge in the High Court of Bombay. A Full Bench of the Bombay High Court disposed of the proceedings with certain directions to the State Government in its judgment dated 23-9-1988. The same is reproduced here below : "5. The validity of the said order of 1984 was challenge in the High Court of Bombay. A Full Bench of the Bombay High Court disposed of the proceedings with certain directions to the State Government in its judgment dated 23-9-1988. That judgment was the subject-matter of appeals in this Court in Civil Appeals No. 522 of 1989 etc. etc. Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Ltd. and Ors. v. State of Maharashtra and Ors. This Court by its judgment dated April 18, 1995 set aside the directions given by the Full Bench of the High Court and upheld the validity of the order of the State Government. This judgment is reported in (1995) 3 SCR 377 : (1995) 3 SCR 377 : (1995 AIR SCW 2338). In paragraph 2 of the judgment the directions issued by the Full Bench of the High Court and the reasons therefore were set out as follows : "2. The directions issued by the Full Bench are as under : "We are therefore of the view, that unless provisions for the following are made in it, the State Order will not be valid- (i) The sugarcane-growers who are not members of the factory or factories to which they are required to supply to which they are required to supply their sugarcane shall be paid for the sugarcane supplied by them the price sugarcane supplied by them the price calculated at the market rate prevailing in the locality at the date of the scale; (ii) The market rate may be as agreed between the parties, namely, the sugarcane-grower and the factory or factories concerned. If there is any dispute over it, the same should be resolved by an independent authority which may be created under the Order such as the one under clause 12 of the present Order. The authority concerned should decide the dispute expeditiously after hearing the parties and by a speaking order; (iii) No unauthorised deductions on any account should be made by the factory from the price to be paid to the sugarcane-grower without his consent. The authority concerned should decide the dispute expeditiously after hearing the parties and by a speaking order; (iii) No unauthorised deductions on any account should be made by the factory from the price to be paid to the sugarcane-grower without his consent. The State Order should provide for a machinery similar to the above to hear and grant to the sugarcane-grower, expeditious relief if he has any complaint in that behalf." The reasons for these directions were twofold, one the non-members were not bound by the price fixed under bye-laws framed under the Co-operative Sugar Act and other that there was no machinery in the zoning Order issued by the State Government to hear the non-members before the price fixed. Before examining whether these reasons are well founded in law leading to the impugned directions it is necessary to narrate in brief the necessity which impelled the Central Government to grant protection to sugar industry and consequently to control the supply and distribution of the sugarcane without sacrificing the interest of the cane-grower." After referring to Clause 5 of the State Government's order, this Court said in paragraphs 36, 37 & 38 as follows : "36. Clause (5) prescribes the situations in which one sugar factory will be permitted by the prescribed authority to purchase sugarcane from the zone of another sugar factory. It does not provide for the cane-grower seeking a permit for sale of his cane to another sugar factory (than the factory within whose zone he may be situated) even if any or all the conditions prescribed in the clause are satisfied. Take a case where a sugar factory indulges in all the three circularities mentioned in sub-clause (d) of clause (5), viz., it does not pay the price of cane at the proper time, it does not adhere to the agreement it has thereby causing loss to the cane-growers - even then the cane-grower cannot apply for permit to sell his cane to whomsoever he likes. All that probably he can do is to complain. But he will get some relief only when there is another factory (which, of course, has its own zone) which is prepared to purchase cane from this zone and applies for permit to the Permit Officer to purchase cane from this zone. If it does not so apply, the grower within the first zone is helpless. But he will get some relief only when there is another factory (which, of course, has its own zone) which is prepared to purchase cane from this zone and applies for permit to the Permit Officer to purchase cane from this zone. If it does not so apply, the grower within the first zone is helpless. That is not being fair and just to the growers. It is, therefore, necessary that the State Government may suitably amend the Zoning Order so as to provide that in a case where any of the three circumstances mentioned in clause 5(d) are present it would be open to the cane-growers to apply to the specified officer for permission to supply his cane outside the zone. In such an event, it may be open to the officer to designate the factory to which the grower should sell his cane ensuring that the grower gets a price which is not less than the price obtained in his zone. 37. The State Government would be further well advised to get the matter thrashed out, before the next crushing season commences, by an Expert Committee comprising of economists and financial experts well versed in price fixation, particularly in agricultural sector. This exercise has become imperative after the enforcement of Zoning Order. In fact when Zoning Order was introduced the State at that time would have got these aspects examined. However, the price equation since 1984 has undergone tremendous upsurge. The escalation is monifold. Benefit of higher price of sugar must percolate to growers as well. Therefore the Committee may examine - (a) If the fixation of State Advised Price Uniformly for the entire State as it is being done in other States, or at least separately for different zones, as the normal recovery in the zone varies, would be more feasible; (b) If the additional price worked out in the manner indicated in Schedule II of Control Order of 1966 is more advantageous and beneficial to the growers. If it be so it may opt for the same as it would avoid tedious exercise by the Ministerial Committee and have the benefit of uniformity; (c) The Committee may further examine whether Rs. If it be so it may opt for the same as it would avoid tedious exercise by the Ministerial Committee and have the benefit of uniformity; (c) The Committee may further examine whether Rs. 600 which has been paid by the factories to the non-growers under interim order passed by this Court would not be a reasonable minimum price for 1995-96 and may furnish the basis for fixation of price for future years; (d) It may also suggest ways and means for improving yield by the sugar factories and reducing overhead expenses and eliminating, possible paper loss; (e) It would further be in the interest of the Government to ask the Committee to examine if the shortcomings pointed out by the Full Bench in other regard can be rectified and rationalised; and (f) The Committee may examine whether Bye-law 65 should be applied to non-members or not. 38. Although the price fixation has not been found to suffer from any infirmity yet due to passage of time, nearly eight or nine years, since this price fixation was challenged and with rise of price all around it appears expedient to dispose of these appeals with following directions to ensure smooth functioning both for the and future : (i) The directions of the Full Bench in para 25 of the judgments shall stand set aside. (ii) The State Government may take appropriate steps to amend clause (5) of the Zoning Order so as to protect the cane-growers. (iii) The Government may appoint a Committee of Experts to study and examine the price structure in the light of what has been stated earlier, (iv) Even though the order issued by the State Government determining price for each factory is upheld but since in consequence of the order passed by the High Court an interim order was granted by the Court and the factories were directed to pay Rs. 600 to the Cane-growers and they were directed to furnish bank guarantee for Rs. 145 it is directed that the amount paid by the factories shall not be liable to recovery from the cage-growers. But the bank guarantee furnished by the appellants or sugar factories shall stand discharged. (v) It is made clear that the direction not to recover Rs. 600 to the Cane-growers and they were directed to furnish bank guarantee for Rs. 145 it is directed that the amount paid by the factories shall not be liable to recovery from the cage-growers. But the bank guarantee furnished by the appellants or sugar factories shall stand discharged. (v) It is made clear that the direction not to recover Rs. 600 from non-growers would not entitle any member of the co-operative society or the co-operative society itself to claim that it was liable to be paid Rs. 600 for its cane during the years in dispute." Mr. B. Devnath, learned counsel for the appellants also cited the case of Narasappa v. State of Karnataka, reported in (2007) 10 SCC 770 , para 3. The same is reproduced here below: "3. In the present case, it appears that the only evidence against the appellant is that of P.W. 2 (Govinda Nayaka), who is nobody else than the son of the deceased. This witness is not an eye-witness. He stated in his evidence that since his father did not return home, he along with P.W. 1 (Roopla Nayaka) and P.W. 3 (Chandra Nayaka) rushed towards the temple with a torchlight and on the road near the temple they saw the cycle, can, lungi and muffler of his father lying on the floor. He further stated that the witnesses heard the sound of movement of some people near the temple and saw that the accused persons were dragging his father in the land of one Muniyappa. These witnesses screamed and reached towards the accused persons whereupon they left the deceased Krishna Nayaka on the ground and fled away. This shows that the accused persons were carrying the dead body. This may at the highest raise strong suspicion, howsoever strong it may be, cannot take the place of proof. In the absence of any other evidence to connect the appellant with the crime, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding conviction of the appellant. The learned counsel for the appellants also cited the case of Jagjit Singh v. State of Punjab, reported in (2005) 3 SCC 689 : ( AIR 2005 SC 913 ), para 31: "31. There is yet another aspect of the matter which has remained unexplained. The learned counsel for the appellants also cited the case of Jagjit Singh v. State of Punjab, reported in (2005) 3 SCC 689 : ( AIR 2005 SC 913 ), para 31: "31. There is yet another aspect of the matter which has remained unexplained. P.W. 6 has not mentioned a word as to how Rabi Singh was killed. Admittedly, he was sleeping in the motor room and just outside that room P.W. 6 was sleeping with Jamila (deceased). Apart from the fact that there is not an iota of evidence as to who assaulted Rabi Singh, there appears to be no reason why the appellant should commit the murder of his own uncle with whom his family was on cordial terms. In fact his father Amar Singh, P.W. 5, had come in the morning to give tea to his brother Rabi Singh. There is nothing on record to suggest that the appellant had any animus against his own uncle. Nor is there any evidence on record to suggest any possible motive for the appellant to commit such a heinous crime. We should not be understood to say that it is necessary to prove motive for the commission of an offence even when there is satisfactory direct evidence in proof thereof. In this case since we doubt the truthfulness of P.W. 6 so far as the involvement of the appellant is concerned, but there is evidence to support the involvement of another person, namely, Raju Bhaiya, who has absconded, the absence of motive acquires significance because it impossible that the offence may have been committed by Raju Bhaiya along with some other person or persons." 6. The last point raised by Mr. B. Devnath, learned counsel for the appellants is that the statement of the accused persons (appellants) recorded under Section 313, Cr. P.C. were not considered by the trial Court while forming his opinion on the guilt of the accused persons and by that he has defeated the very purpose for which the statements were recorded under that provision of law. 7. Ms. V. Suokhrie, learned Addl. Sr. Government Advocate submitted that all the accused admitted that they fired at the Maruti Zen car on which the victims were travelling and the only excuse they have given was, they have fired in self-defense and to prevent the victims from escaping. 7. Ms. V. Suokhrie, learned Addl. Sr. Government Advocate submitted that all the accused admitted that they fired at the Maruti Zen car on which the victims were travelling and the only excuse they have given was, they have fired in self-defense and to prevent the victims from escaping. However, the claim of the accused persons that they were shot at by the victims first with fire arms was without any evidence since no fire arm or arms was seized from the victims or from the vehicle they were travelling, therefore, this goes to prove that the firing by the appellants/accused persons was without any provocation and cause. The learned counsel Addl. Sr. Government Advocate also submitted that the eye-witnesses Shri. Pangertemsu Ao, who was a victim himself and the only survival among the three had stated clearly in evidence that the firing from the police was so heavy and all three of them got injured form the same and this statement of the witnesses is also supported by three Doctors who treated and operated two of the victims that the victims suffered from bullet injuries. The learned Addl. Sr. Government Advocate further submitted that the eye-witnesses Shri. Pangertemsu Ao also had stated that police fired at them without any warning and this statement of the witness is supported by the statement of one of the witnesses Shri. S. Wati Jamir, who took the victims to the hospital that he was told by the victim that one Police vehicle came and they fired upon them for reasons they did not know. 8. The learned Addl. Sr. Government Advocate also pointed out that the appellant Shri. Mayng Ao had admitted in his statement given under Section 313, Cr. P.C. that he had fired on the victims targeting tyres of the car this itself shows that the victims suffered bullet injuries due to firing of the appellants, therefore, there is no infirmity in the impugned judgment. The learned Addl. Sr. P.C. that he had fired on the victims targeting tyres of the car this itself shows that the victims suffered bullet injuries due to firing of the appellants, therefore, there is no infirmity in the impugned judgment. The learned Addl. Sr. Government Advocate further submitted that the I.O. in his deposition had stated that he had seen the Maruti Zen vehicle in which the victims were travelling with its tyres punctured and 12 to 13 bullet marks on it, and he had seized the fire arms used by the appellants/accused persons and he had sent them for expert opinion and the expert opinion has confirmed that shots were fired from the seized arms, therefore, there is nothing to doubt that the victims had suffered injuries from the bullets fired by the appellant. 9. The learned Addl. Sr. Government Advocate also referred to Ext. P-13, Ext. P-4, Ext. P15, Ext. P16 which are seizure memos for the arms and ammunitions. As for the expert opinion, the learned Addl. Sr. Government Advocate referred to Ext. P-29 and Ext. P19(1). In support of her submission, the learned Addl. Sr. Government Advocate cited paras 24 to 26 of the Hon'ble Supreme Court judgment passed in Ashok Debbarma Alias Achak Debbarma v. State of Tripura, reported in (2014) 4 SCC 747 : (AIR 2014 SC 1434 (Supp) paras 21 to 23. The contents of the paragraphs are given here below : "24. We are of the view that, under Section 313 statement, if the accused admits that from the evidence of various witness, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh ( AIR 1992 SC 2100 ) held that since no oath is administered to the accused, the statement made by the accused under Section 313, Cr. P.C. will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313, Cr. P.C. But, sub-section (4) says that the answers given by the accused in response to his examination under Section 313, Cr. P.C. can be taken into consideration in such an inquiry or trial. P.C. But, sub-section (4) says that the answers given by the accused in response to his examination under Section 313, Cr. P.C. can be taken into consideration in such an inquiry or trial. This Court in Hate Singh Bhagat Singh ( AIR 1953 SC 468 ) held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab (1964 (1) Cri LJ 730 (SC)) this Court held that when the accused confesses to the commission for the offence with which he is charged, the Court may rely upon the confession and proceed to convict him. 25. This Court in Mohan Singh v. Prem Singh ( AIR 2002 SC 3582 ) held that: (SCC p. 244, para 27) "27. The statement made in defence by the accused under Section 313, Cr. P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313, Cr. P.C. cannot be made the sole basis of his conviction." In this connection, reference may also be made to the judgments of this Court in Devender Kumar Single v. Baldev Krishan Singla ( AIR 2004 SC 3084 ) and Bishni Prasad Sinha v. State of Assam ( AIR 2007 SC 848 ). The abovementioned decisions would indicate that the statement of the accused under Section 313, Cr. P.C. for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution. 26. We may, however, indicate that the answers given by the accused while examining him under Section 313, fully corroborate the evidence of P.W. 10 and P.W. 13 and hence the offences levelled against the appellant stand proved and the trial Court and the High Court have rightly found him guilty for the offences under Sections 313, 436 and 302 read with Section 34, IPC. Findings and conclusions : 10. Initially there were six accused persons. Findings and conclusions : 10. Initially there were six accused persons. One of then, Shri Yingphong Konyak was discharged at the time of charge hearing on the ground that he was not a part of the team when the incident happened and trial in the case of Shri. Akaho Sumi was deferred as he was stated to have absconded. Therefore, the trial Court proceeded with the trial of the four accused only, namely, Lipok Ao, Onen Ao, Ato Yimchunger and Mayang Ao. In the trial two of the accused, namely, Shri. Lipok Ao, S.I. (Commander of the escort party) and Shri. Onen Ao, (constable driver) had been acquitted on the ground that they did not fire any bullet and there was no evidence to show that there was common intention. The prosecution have not appealed against the findings and conclusions of the trial Court. As stated already of all the accused only two of them namely, Ato Yimchunger and Mayang Ao were held guilty and the two of them have field this appeal. And during the pendency of the appeal one of them i.e. Ato Yimchunger has expired. Therefore, in this appeal this Court is concerned only with the appeal of Mayang Ao. 11. It is admitted fact that the three constables namely, Akaho Sumi (absconder), Ato Yimchunger and Mayang Ao has fired from the guns issued to them at the Maruti Zen car on which the victims were travelling. It is also admitted fact that it was none other than their firing which had caused the instant death of one of the victims namely, Atina Suokhrie and injuries to two of them, Michael and Pangertemsu Ao which later on led to the dead of one of them i.e. Michael and amputation of the right arm of Pangertemsu Ao. The only defense taken by the accused persons was that the victims fired at them with a fire arm first, therefore, they retaliated by firing in self-defense and also to prevent them (the victims) from escaping. However, no evidence was produced by the accused persons including the appellants to prove their case. If an accused in a criminal case seeks to defend himself with that kind of plea he must prove it with evidence. Moreover, there is nothing to show in evidence that any fire arm was seized from the possession of the victims. However, no evidence was produced by the accused persons including the appellants to prove their case. If an accused in a criminal case seeks to defend himself with that kind of plea he must prove it with evidence. Moreover, there is nothing to show in evidence that any fire arm was seized from the possession of the victims. Therefore, there is nothing to support the plea taken by the accused persons. The only conclusion that can be drawn from the facts and circumstances of the case and the evidence available in record is that the accused persons who fired at the victims were wanton and trigger happy constables who would not wait for command of their commander and the discipline they are suppose to abide with. As persons trained in the handling of lethal weapon such as AK-47 and M-20 rifle they should have known the impact such weapon can cause once shots are fired from such guns. It may be true that they fired at the tyres of the vehicle in order to prevent the victims from escaping so as to ascertain their identity in order to safe guard the security of the Minister of which they were in-charge. But it is incumbent upon them to take care that such shooting does not cause any harm to the suspects specially when they were not armed. In other words, under such circumstances they have no right to fire at the victims to the extent they have done. From the peculiar facts and circumstances and the evidence available it may be concluded that the accused persons did not have pre-meditated intention to kill or injure the victims but certainly it cannot be said that they did not have the knowledge that their act was likely to cause injuries and death of the victims. Therefore, their conviction should have been under Part-II of 304, IPC and not under 326 of the same code as concluded by the learned trial Court. As such, the offence for which the appellant was held guilty is changed from Section 326, IPC to Part II of Section 304 of the same code. However, as for the quantum of sentence, considering the facts and circumstances under which the offence was committed 7(seven) years of imprisonment and a fine of Rs. 25,000/- and in default R.I. of 1(one) more year are adequate and justified enough. However, as for the quantum of sentence, considering the facts and circumstances under which the offence was committed 7(seven) years of imprisonment and a fine of Rs. 25,000/- and in default R.I. of 1(one) more year are adequate and justified enough. Therefore, there shall be no change in the same. In view of the above, I find no merit in the appeal and such, the same is dismissed. Accordingly, the bail of the appellant is cancelled. He should report to the Court of Session Judge, Dimapur within 15 days from today for undergoing the remaining part of his sentence. With this, the Criminal Appeal is disposed.