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2019 DIGILAW 838 (GAU)

Borsing Timung v. State of Assam

2019-07-18

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. AM Bora, learned senior counsel appearing for the appellants and Ms. S Jahan, learned Additional Public Prosecutor for the State of Assam. 2. As regards the informant/respondent No. 2, an affidavit by the Gaonburah of the concerned village namely, Krishna Timung is on record wherein it is stated that the informant Khorsing Terang died on 05.03.2016. 3. An ejahar dated 04.06.1996 was lodged by one Khorsing Terang, inter-alia stating that on 03.06.1996 when the informant and Rongbong Rahang were proceeding towards the Teron village, they saw that about 20/25 youths armed with dao, stick etc were sitting on the PWD road. As they came closer to the group of youths, they were attacked by them for no reason and the informant, Khorsing Terang managed to escape but his companion Rongbong Rahang died as a result of the attack. In the FIR, seven persons were identified to have been present amongst the group of people who had attacked. But when we go through the evidence of the investigating officer, PW-4 Seba Singh, we note that the investigation was started on the basis of a GD Entry No. 70 dated 04.06.1996. 4. We have verified the records and find that GD Entry No. 70 dated 04.06.1996 was entered at around 7 am in the morning. Records also indicate that immediately thereafter, the investigating officer proceeded to the place of occurrence and started the investigation. In view of the aforesaid materials on record, we do not accept the ejahar dated 04.06.1996 to be the first informant report, it being hit by the provisions of Section 162 of the Cr.P.C. 5. PW-1 Kamir Derapi in her deposition stated that she is the wife of Khorsing Terang who is the informant and on the day of the occurrence at around 6 to 7 pm, her husband and the deceased Rongbong Rahang proceeded to the Teron Gaon to bring some Sali Kathia but her husband did not return home on that night. At about 7 pm onwards, she heard some hullah and when in the next morning she went to the spot to know about the matter she found that Rongbong Rahang was lying dead with many injury marks on the body which were caused by lathi etc. At about 7 pm onwards, she heard some hullah and when in the next morning she went to the spot to know about the matter she found that Rongbong Rahang was lying dead with many injury marks on the body which were caused by lathi etc. She deposed that she then went to the Donkamokam police station at about 7 am and informed the matter and thereafter the police came to their house. 6. PW-2 Maizuddin Ahmed in his deposition stated that he was the In-charge at Donkamokam police outpost and that the matter was earlier investigated by Sub Inspector Seba Singh who was the then In-Charge of the police station and after his transfer the witness had taken over the investigation. 7. PW-3 Khorsing Terang who is the informant in his deposition stated that on the day of the occurrence he proceeded with his wife Kamir Derapi to the polling station for casting his vote and after returning from the police station at around 2 pm, he was with his wife till about 4 to 5 pm. After, reaching home, he came to learn that there was some tension between the ASDC and the Congress party workers. Thereafter, he took the deceased Rongbong Rahang to collect some Sali Kathia from the Teron gaon. When they reached near the village of Rongbong Timung Gaonbura, they saw a group of 25/30 people armed with lathi, rod and other weapons in their hands. The crowd suddenly attacked them and the witness could see one Hemari Bey hitting Rongbong Rahang with a rod on the backside of his head and as a result of which he fell down. The witness stated that the accused Sing Tisso had attacked him and then all the accused persons had hit him thoroughly. The witness stated that he did not see accused Karanga Terang hitting Rongbong Rahang. The witness being nervous fled away from the place of occurrence and although the attackers threw lathi, rods etc on him but it did not hit him and he ran fast. The witness also stated that Hemari Bey is no more. The witness stated that in the situation he fled to the nearby jungle and spend the whole night there and from that place, where he was hiding, his house could be seen. The witness also stated that Hemari Bey is no more. The witness stated that in the situation he fled to the nearby jungle and spend the whole night there and from that place, where he was hiding, his house could be seen. On the next day he could see from the place where he was hiding that police came and after the police came, he came down from the tilla in the jungle. When he reached home, his wife told him that she had informed the police that he was also attacked in the assault. Thereupon, the witness went to the place of occurrence along with the police and saw the body of the deceased Rongbong Rahang containing grievous injuries and further his head was totally deformed as a result of the beating. 8. PW-3 stated that Exhibit-1 is the seized articles but the rod and the khukri which were exhibited were not the same as the one that were seized. The witness further stated that he had filed an ejahar in the police station which was exhibited as Exhibit-3. 9. PW-4 Seba Singh, the Investigating Officer in his deposition stated that at around 7 am on 04.06.1996, when he was the In-charge of the police outpost, Birendra Kathar being the Vice Chairman of Donkamoam Town Committee came and informed that an incident of assault had taken place at Cheralongsor in the evening of 03.06.1996, which resulted in the injuries being caused to one Rongbong Rahang. Accordingly, the witness made the GD Entry No. 70 on 04.06.1996 and thereupon proceeded to the place of occurrence at about 3.10 am. Upon reaching the place of occurrence, he saw the dead body of the deceased and by keeping certain police personnel to guard the dead body, he proceeded to the village Klengbong Gaon. In course of investigation, the investigating officer could learn that the deceased Rongbong Rahang was working as a labourer in the house of Khorsing Terang. Thereafter, he met Kamir Derapi wife of Khorsing Terang in their house and was told that Khorsing Terang was hiding in the jungle. The witness also deposed that he had seized the articles lying in the place of occurrence i.e. one Sabol of 2 ft. length, one khukri of about 8 inch in length, some coloured Gaamosa, one pair of hawai chappal and one wrist watch etc. The witness also deposed that he had seized the articles lying in the place of occurrence i.e. one Sabol of 2 ft. length, one khukri of about 8 inch in length, some coloured Gaamosa, one pair of hawai chappal and one wrist watch etc. Thereafter, the witness examined Khorsing Terang who had told him that after casting their votes around 12 o'clock at noon, he returned home at about 4 to 5 pm and after listening the news at 7 pm, he proceeded along with Rongbong Rahang to collect some Sali Kathia from the Teron gaon. When they reached the village Rongbong Timung Gaonburah which is about half km from his house, they saw a group of 25/30 people armed with lathi and rod. The crowd suddenly attacked them and the deceased Rongbong Rahang who was walking ahead was hit by Hameri Bey with a rod on the backside of his head. He stated that he also saw Babu Ram Rongpi attacking the deceased and thereafter all the persons there had thrashed the deceased. 10. PW-5 Dr. Nitya Nanda Phukan who had conducted the post-mortem examination in his deposition had stated that there was a cut injury on the scalp of the deceased which was 4 inches x 1/2 inches x 1 inches on the posterior part of occipital region and there was also a fracture in the scalp. Apart from the above, the deceased had also fracture on his body. 11. On going through the injuries sustained by the deceased, we notice that there was one major injury on the scalp portion which had resulted in the death of the deceased and there were also some other injuries on the various parts of the body including fracture. When we look into the injuries from the point of view of the eye-witness's account of PW-3, we find that blow on the backside portion of the head of the deceased was given by Hameri Bey with an iron rod. Apart from the above, the deposition of the PW-3 shows that the accused Sing Tisso thereafter had hit the deceased Rongbong Rahang and thereafter all the accused persons had hit him thoroughly. Amongst the assailants who were identified by PW-3, Hameri Bey is identified to have inflicted injury on the backside of Rongbong Rahang with an iron rod. Apart from the above, the deposition of the PW-3 shows that the accused Sing Tisso thereafter had hit the deceased Rongbong Rahang and thereafter all the accused persons had hit him thoroughly. Amongst the assailants who were identified by PW-3, Hameri Bey is identified to have inflicted injury on the backside of Rongbong Rahang with an iron rod. Apart from the two assailants, no other assailant has been identified by any of the prosecution witnesses. 12. We have been told that the assailant Hameri Bey had died in the meantime. As regards the appellant Sing Tisso who had been identified by PW-3 to have assaulted the deceased Rongbong Rahang, we also take note of that there is an exhibited statement of PW-3 under Section 164 Cr.P.C.. In his deposition under Section 164 Cr.P.C., PW-3 Khorsing Terang had stated that the assailants Hameri Bey and Babu Ram Rongpi were present in the group of persons who launched the attack and he does not know any other person who can identify others at sight. The records reveal that there was no identification parade nor any process of identification subsequently. 13. PW-4 the investigating officer in his deposition had stated that PW-3 Khorsing Terang during the investigation had stated before him that he had seen one Hameri Bey hitting the deceased Rongbong Rahang with a rod on the backside of his head and that he also saw Babu Ram Rongpi hitting him. 14. In view of the evidence rendered by the investigating officer as regards the statements made by PW-3 Khorsing Terang before him during the investigation wherein in the statements under Section 164 Cr.P.C. he named Babu Ram Rongpi to be the assailant of Rongbong Rahang along with Hameri Bey, we are of the view that the evidence rendered by PW-3 in his deposition in examination-in-chief that he had seen the accused Sing Tisso to have been the other assailant of Rongbong Rahang along with Hameri Bey is found to be an improvement during trial. Accordingly, the identification of the accused Sing Tisso by the PW-3 cannot be accepted. In the resultant situation, from the evidence on record, we find that the prosecution witnesses had not identified any of the accused persons including the appellants herein to have been involved in the assault upon the deceased Rongbong Rahang. 15. Accordingly, the identification of the accused Sing Tisso by the PW-3 cannot be accepted. In the resultant situation, from the evidence on record, we find that the prosecution witnesses had not identified any of the accused persons including the appellants herein to have been involved in the assault upon the deceased Rongbong Rahang. 15. We have already held that although seven accused persons are named in the ejahar dated 04.06.1996 but the same is unacceptable as it is hit by Section 162 of the Cr.P.C.. From the said point of view also no other accused persons other than the assailant Hamari Bey could be identified. 16. In view of above as the appellants herein were not identified by any of the prosecution witnesses/evidence, we are of the view that the conviction of the accused appellants under Section 302 IPC sentencing them to rigorous imprisonment for life for Section 302 IPC, rigorous imprisonment for six months for the section 147 IPC, rigorous imprisonment for one year for the Section 148 and rigorous imprisonment for life and to pay a fine of Rs. 2000/- is unsustainable and accordingly both the conviction and the sentence are set aside. 17. Although we have interfered with the conviction and sentence on the accused appellants but we are constraint to note that they are required to be acquitted because none of the prosecution witness had identified the assailants. But at the same time, we also have on record the FIR filed by PW-3 dated 04.06.1996 wherein he had named seven accused persons who have been present and participated in the assault. Although, technically the FIR may be hit by Section 162 Cr.P.C., but information contained therein could have been obtained by the investigating Officer from the informant who gave the statement under Section 161 Cr.P.C. meaning thereby that the identification of seven of the persons named in the FIR could also have been orally obtained by the investigating Officer from the informant. Accordingly, the prosecution also could have led evidence against such identified accused persons and upon it having happened, at least some of the accused persons could have been identified in the trial. In such situation, acquittal of all accused persons on being not identified by the prosecution, investigation could have been avoided. 18. Accordingly, the prosecution also could have led evidence against such identified accused persons and upon it having happened, at least some of the accused persons could have been identified in the trial. In such situation, acquittal of all accused persons on being not identified by the prosecution, investigation could have been avoided. 18. If the names of at least seven accused persons were available with one of the witness, who also happened to be the only possible and natural eye witness, question of concern arises as to why the investigation and prosecution was not done in the required manner by taking into consideration the accused persons so identified. 19. In the circumstance, we direct the CID, Assam to conduct an enquiry as to why the investigating authority including the investigating officer, the prosecuting authority including the Public Prosecutor and the concerned witnesses had made no attempt to bring the names of the identified accused in course of the investigation and trial of the matter. If upon conducting such enquiry any criminal meeting of minds is found to have existed between all or any of the three authorities i.e. investigating authority including the investigating officer, the prosecuting authority including the Public Prosecutor and the concerned witnesses, for withholding the names of the accused persons who are identified, appropriate criminal proceeding be initiated and conducted against them. 20. The appeal stands allowed. 21. The appellant Nos. 1, Bonsing Timung, 2. Joysing Timung, 4. Karanga Terang and 5. Seng Tisso be released forthwith and the bail bond of appellant No. 3 Ranjit Timung stands discharged. 22. Send back the LCR.