Judgment · High Court · 2012

On 9.9.2001, Sri Anand Singh, Adjutant of 64 Bn. CRPF filed a co mplaint with the officer-in-charge, Jagiroad police station informing him that o n that day at about 9:30 PM in the campus of Assam Spun Silk Mills, Jagiroad, wh ile the jawans were enjoying TV programmes, Constable No.910720335 (Driver) Nage ndra Kumar came to the recreation room of the unit and opened fired from his per sonal weapon Carbine Butt No.112 (Body No.3582). As a result of the firing by t he accused, severely injured Constable Driver Umesh Prasad, Constable Rajesh Son wane and Constable Kandhare Keshav. They were shifted to Guwahati Medical Colleg e hospital, for treatment where the Constable Driver Umesh Prasad was declared t o be brought dead and the other two constables were treated in the hospital for the injury sustained by them. On receipt of the above complaint, Officer-in-Charge, Jagiroad P olice Station registered a case u/s 326/302 IPC and investigation was accordingl y launched. During the course of investigation, the I/O carried out the inquest of the dead body of Umesh Prasad and thereafter sent the dead body for post mor tem examination. The Carbine Butt No.112 (Regd. No.16023582), two magazine carb ine carts, SA ball 9 mm-32 Nos. which was seized during investigation from the p ossession of the accused were forwarded to the State Forensic Laboratory for for ensic examination. The investigating officer also obtained forensic report in r espect of the bullets fired by the Carbine, which was seized by the I/O from the place of occurrence. On completion of the investigation, the I/O submitted chargeshee t against the accused u/s 326/302 IPC. The learned Sessions Judge, having consi dered the materials on record and upon hearing learned counsel for both the part ies farmed formal charges against the accused/appellant u/s 302/307 IPC. On re ading over and explaining the charges, the accused/appellant pleaded not guilty and claimed to be tried. Prosecution examined as many as 11 witnesses to establish the ch arges against the accused/appellant and on conclusion of the evidence, the learn ed Sessions Judge recorded the statement of the accused u/s 313 CrPC. The defen ce stand of the accused is that of total denial. The accused also declined to h ave adduced the evidence in defence. On conclusion of the hearing, learned Ses sions Judge convicted the accused/ appellant u/s 302/323 IPC and sentenced him a s aforesaid, which giving rise to this appeal. 3) Death of the deceased and the injury sustained by the victim by fire arm is not disputed. Dr. Tarun Kumar Das (PW.8), the Demonstrator of the G auhati Medical College hospital, who conducted the post-mortem examination of th e deceased, opined that death was due to haemorrhage and shock resulting from bu llet injury, sustained by the deceased. According to PW.8, all the injuries, w ere ante-mortem, caused by rifle fire arm, which were homicidal in nature. 4) PW.6, Rajesh Sonwane, on of the injured in the incident deposed that he was hospitalized for 10/11 days in Gauhati Medical College Hospital for having sustained bullet injury in his left hip. PW.7, other injured, who was tr eated in the hospital for 3 days for sustaining bullet injuries. Sri Upen Bora, PW.11, the Dy. Director of Forensic Science Labor 5) atory, Assam, Guwahati, who examined the exhibits i.e. (i) the Carbine, which wa s seized from the possession of the accused, (ii) the empty fire cartridges, 32 Nos. of 9mm caliber cartridges, which were marked collectively as Exht.C, two ch airs, which were marked as Exht. D(1) and Exht. D(2) and 2 magazines, which were marked as Exht.E, seized from the place of occurrence. The result of the exam ination made by the Forensic expert, reads as follows: (cid:28)Result of examination: Ext. B(1), B(2) and B(3) were ammunitions. Ext.A is a firearm under the Arms Act. It was serviceable in its presen

#1. t condition. 2. Test firing was done in the laboratory through Ext.A and these fired cartridges were compared with Ext.B(1), B(2) and B(3) under a comparison microscope. In th e comparison, it was found that firing pin impression of test fired cartridges t hrough Ext. A were similar with that of Ext.B(1), B(2) and B(3). Hence , it cou ld be opined that Ext.B(1), B(2) and B(3) were used to fire through Ext.A. 3. 4. red bullets. 5. Ext. C are ammunitions and they were live cartridges. The holes contained in Ext.D91) and Ext.D(2) appeared to be caused by fi Ext.E can be used in Ext.A. (cid:29) The report of the Scientific Officer, PW.11, clearly show that t 6) he empty cartridges seized form the place of occurrence were fired from the fire arm i.e. carbine, which was proved to be held by the accused/appellant in the p lace of incident i.e. recreation hall. The empty cartridges used in the fire ar m was recovered from the spot and the carbine which fired the empty cartridges s hots was found in possession of the accused. Apparently, accused himself fired gunshots resulting in the injury of 3 persons, namely, Umesh Kumar, Rajesh Sonwa ne and Keshav Kandhare. Consequent upon the injuries so sustained, one of the i njured namely Umesh Kumar died. 7) From the report of the post-mortem examination of the deceased, it clearly appears that the injury No.1 is found to have passed through the musc le, 8th thorasic vertebrae, thorasic cavity, pleura, lungs, diaphragm, superior surface of liver and came out through the right anterior chest wall 2 cm below the medial from the right nipple and producing the exit wound No.2. Therefore, the injury was sufficient in ordinary course of nature to cause the death of the deceased. 8) On careful examination of the evidence of Sankardev (PW.1), it t ranspires that he along with the accused/appellant and 56 others CRPF personnel were sitting in the recreation hall and were enjoying TV programmes. While PW.1 was searching for chalk pencil in the nearby Almirah, the firing took place. P W.1 found that the accused Nagendra had the carbine in his hand. PW.1 apprehend ed the accused along with his carbine. PW.1 also confirmed that consequent to t he firing made by the accused, 3 people sustained injuries, out of which consta ble Driver Umesh Prasad succumbed to his injuries. PW.1 further clarified that as a matter of practice, nobody was allowed to carry firearms inside the recreat ion hall. According to PW.1 at the time of occurrence except accused Nagendra K umar, no-body else was found carrying a carbine in the recreation hall. There i s no evidence on record that any other person had any carbine or fire arm in the ir hand, inside the recreation hall at the relevant time, except accused Nagendr a Kumar. 9) PW.5, Ananda Singh, Deputy Commandant of CRPF was outside the re creation hall at the time of the incident. He rushed towards the recreation hall and could find the injured being taken out. PW.5 also saw that the accused was kept confined. According to PW.5, no firing can be made accidentally from the weapon found in possession of the accused unless it was intentionally fired. 10) The empty cartridges of the fire arm were seized by the I/O from the place of occurrence. The fire arm i.e. the carbine was also seized from th e possession of the accused/appellant. Learned counsel for the appellant vehemently submitted that ther 11) e is nothing on record to establish that the carbine by which the gun shots were fired at the place of occurrence, was ever issued in the name of the accused/ap pellant and thus investigating agency failed to place on record any material to show that the accused /appellant was issued with the carbine by which gunshots w ere fired at the place of occurrence. 12) In reply to the above submission, the learned Public Prosecutor, Assam, by drawing our attention to the statement made by the accused/appellant during his examination under Section 313 Cr.P.C submitted that on a pointed que ry made by the Court, the accused/ appellant had admitted that at the relevant t ime of the incident he was on duty with his carbine. Further, in his statement u/s 313 Cr.P.C, the accused/appellant also categorically stated that he could not see who took the carbine from his possession. The aforesaid statement made by the accused/appellant u/s 313 Cr.P.C, clearly confirmed that the carbine whic h was seized by the police, was in his hands and he was on duty at the time of o ccurrence. The accused also did not come forward to explain as to why he had co me inside the recreation hall that too with a carbine in his hand. When the weap on of offence, which fired the killer shot is found in the hands of the accused /appellant , a few seconds after the occurrence, the explanation of the accused /appellant to the effect that it was snatched away from him by some body , i s nothing but a fruitless attempt to confuse and distract the prosecution cha rges. 13). Although there were no eye witnesses to the pulling of the tri gger of the firearms by the accused and the prosecution case is based on circums tantial evidence, but then, in view of the above discussion, by applying the t est laid by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharasht ra reported in (1984) 4 SCC 116, we find that the circumstances from which the c onclusion of guilt is to be drawn has been fully established against the accused /appellant. The facts established are consistent only with the hypothesis of th e guilt of the accused /appellant and these are not explainable on any other h ypothesis except that the accused /appellant is guilty and all the circumstanc es established by the prosecution are conclusive nature. The prosecution has bee n able to establish a chain of evidence so complete as not to leave any reasonab le ground for the conclusion consistent with innocence of the accused on prepond erance of probability. 14). It is pertinent to mention that though motive behind the crime is not discernible, nevertheless, motive is not sine-qua-non for the commi ssion of crime. Motive behind the crime is not known to any other person, except the person committing the crime. 15). esh reported in AIR 1976 SC 133 held as follows - The Apex Court in the case of Dilip Kumar Sarma Vs. State of Madhya Prad (cid:28)Motiveless murders are not necessarily acts of mad and unhinged people. Prosecu tion is often unable to collect satisfactory evidence on the motive behind the c rime. That does not call for any leniency and indeed where this is so, criminals would prefer, in order to reduce the gravity of their acts, to suppress the mot ive leading to the crime. (cid:29) 16). Further, in the case of Datar Singh Vs. State of Punjab, reported in AIR 1974 SC 1193, the Hon’ble Apex Court again held as under - (cid:28)If the eye witnesses are relied upon, the mere absence of a strong motive for c ommitting murder or the mode of its commission is of no assistance to the accuse d. (cid:29) However, motive for commission of an offence become in-consequential , when there is direct and clinching evidence in respect of the commission of of fence by the accused. From the evidence on record, it clearly transpires that the accu 17). sed, who was on duty, came to the recreation hall with his allotted fire arms a nd without provocation intentionally fired gunshots from his carbine, causing de ath of Umesh Kumar. The accused also caused bullet injuries on the person of Ra jesh and Keshab, in the same incident. 18). In view of the above discussion, we are of the considered view t hat the learned Sessions Judge, carefully evaluated the evidence on record and o n the basis of the finding arrived at, has rightly convicted and sentenced the a ccused, in accordance with law. 19). Consequently, we do not find any cogent and sufficient material on record to interfere with the findings arrived at by the learned Session Judge . Accordingly, the appeal preferred by the accused/appellant stands dismissed. 20). Send back the LCR forthwith along with a copy of this judgment.