High Court
Case Details
Crl.A. 14/2008 BEFORE HON’BLE MR JUSTICE T.VAIPHEI AND HON’BLE MR JUSTICE P.K.SAIKIA Heard Mr. A. Choudhury, learned counsel for the appellant and Ms. S. Jahan, lear ned PP, Assam. 2. This appeal is directed against the judgment dated 07.12.2007 passed by learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 20(K)/1998 convict ing one Sukhmal Konwar of offence u/s 302 IPC and sentencing him to imprisonment for life and also to pay fine of Rs. 5,000/- in default R.I. for 6 (six) months . 3. Being aggrieved by and dissatisfied with the aforesaid judgment, the app ellant Sukhmal Konwar, hereinafter referred to as accused person, preferred this appeal citing several infirmities in the judgment, impugned in this appeal. 4. The facts which are necessary for disposal of the present appeal which e merge during trial in brief are that on 5.7.1996 at about 11.30 AM, the security guard on duty in the official residence of Superintendent of Police, Nalbari in discriminately fired at one Madhab Das and two of his companions who were then f ishing in a pond nearby the official residence of aforesaid police officer. 5. Due to such indiscriminate firing, Madhab Das got severely injured while another boy was also wounded in such incident. One Harekrishan Goswami, son of Gopal Goswami, (Mukherjee), who was also with Madhab Das and his brother on the morning in question, luckily escaped unhurt although he was very much with them. 6. An FIR to that effect on being lodged with O.C., Sadar Police Station, N albari, by Sri Gopal Goswami, (Mukherjee) same day, O.C., Sadar Police Statio n, registered a case u/s 326 IPC and ordered one A.R. Medhi to investigate the s ame. Being so ordered, Sri Medhi took up the investigation, arranged the sending of the injured to hospital for treatment who, however, later succumbed to the i njuries in the hospital. On his death, the I.O. added offence u/s 302 IPC to the case aforesaid. 7. In the course of investigation, the I.O. seized the firearm, allegedly a llotted to the accused person which was said to have been used in commission of offence, empty cartridges, unused ammunitions, did other needful and on the conc lusion of investigation, he submitted charge-sheet u/s 302/323 IPC against the a ccused person and forwarded him to the court to stand trial. 8. The Magistrate before whom charge-sheet was so laid, committed the case to the court of Sessions since the offence u/s 302 IPC is exclusively triable by the court of Sessions. The learned Sessions Judge, Nalbari, on the receipt of t he case on commitment and on hearing the parties, framed charge u/s 302 IPC aga inst the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 9.
Facts
However, vide order dated 9.2.1998, this Court transferred the case from the file of learned Sessions Judge, Nalbari to the learned Sessions Judge, Guwa hati for disposal in accordance with law. On the receipt of the case on transfer and on hearing the parties, the learned Sessions Judge, Kamrup also found it ne cessary to frame one more charge u/s 323 IPC against the accused person. Accordi ngly, he framed the charge u/s 323 IPC and charge, so framed, on being read over and explained to the accused person, once again, he pleaded not guilty and clai med to be tried. 10. During trial the prosecution has examined as many as 21 witnesses includ ing the informant, medical officer and the I.O. who conducted the investigation. The statement of the accused person u/s 313 CrPC was also recorded. It appears from the record that the accused seems to have set up a plea of insanity at one point of time. However, at another point of time, he also set up a plea of innoc ence. 11. In order to establish the pleas that he raised during trial as well as durin g the course of his examination u/s 313 CrPC, he adduced the evidence of two wit nesses.The learned trial Court on the conclusion of trial convicted the accused person u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judg ment which is assailed in the present appeal. 12. Opening up argument on behalf of the appellant, Mr. A. Choudhury, submit ted that the judgment of the trial Court is unsustainable in law for reasons mor e than one. In that connection, it has been pointed out that though the learned trial Court has placed enormous reliance on the alleged confessional statement m ade by accused person, he (a) blissfully ignored the fact that such confession i s unreliable for it not being made voluntarily. It has also been contended that though the prosecution has heavily banke 13. d upon the evidence of PW 1, 2 and 3 yet none of those witnesses are reliable (i ) since the evidence of PW 1 is found to be contradictory on very vital aspect o f the case under consideration and (ii) since PW 1 and PW 10 could not have at a ll seen the accused firing at the victim and other persons due to peculiar topog raphy of the place of occurrence. 14. It is also the case of the accused person that prosecution could not est ablish that the victim died due to bullet injuries which were fired from the fir earm allotted to the accused person. Failure of the prosecution to prove that bu llets from the gun of the accused had occasioned the death of the deceased on th e noon in question, now, requires this Court to hold that the prosecution case i s based not on facts but on fiction instead. 15. The weapon of offence was reportedly seized on the fateful day itself vi de seizure list, Ext. 2.But same was never produced before the court during tria l. This is fatal since it is the consistent plea of accused person that the accu sed never fired at the victim or at any other person on the day aforesaid. 16. The further case of the accused was that the prosecution case is basical ly based on circumstantial evidence and circumstances which are reportedly prove d hardly satisfy the test laid down for a case based on circumstantial evidence. In view of the above infirmities, learned counsel for the accused person has ur ged this Court to acquit the accused person of offence u/s 302 IPC on setting as ide the judgment of the trial Court.
Legal Reasoning
However, when the truthful part cannot be segregated from that part of t 81. he evidence which is laced with falsehood without affecting the fundamental char acter of the truthful part of the testimony of such a witness, the entire eviden ce of such a witness needs to be discarded. In our considered opinion, in the ca se at hand, the truthful part of the evidence of PW 1 can be segregated from the untruthful part and that too, without damaging in any manner, whatsoever, the t ruthful part of his evidence. It has also been alleged that since the duty register was not proved, th 82. e prosecution could not be said to have established that the firearm in question was entrusted to the accused on the day in question. In this connection he has relied on the decision of this Court in the case of Keshab Rava (supra) The rele vant part is reproduced below:- (cid:28)16. What does the evidence on record tell us ? We know from the evidence of PW- 8 Lambodar Bora and PW -12 Parimal Dutta that an incident of shooting took place on the night of 15.11.1991 which resulted in the death of Sombhu Ram Neog. We k now that there was no eye witness to the incident. We also know that a rifle was seized and according to the prosecution if was the firearm that caused the deat h of Sombhu Ram Neog. However, in view of the evidence of PW-10 Madhu Sarmah, it cannot be said with any degree of certainty that the seized weapon was actually used in the killing of Sombhu Ram Neog. We also cannot say with any degree of c ertainty that the seized rifle belonged to or was in the possession and control of the appellant. This is because the testimony of PW-11 Romjan Ali has been fou nd to be false in view of the evidence of the Investigating Officer PW -13 Manik Goswami. There is also nothing conclusive on record to suggest that the appella nt went to the Margerita Police Station and made an extra judicial confession of the crime before PW -11 Romjan Ali, as alleged. (cid:29) 83. However, the aforesaid decision has no application to the instant case s ince there is emphatic evidence on record to show that the firearm in question w as given to the accused with 60 rounds of ammunitions and same was recovered fro m him soon after the alleged incident. 84. Worse still, the accused could not account for how he spent 26 rounds of ammunitions out of 60 rounds of ammunitions which was given only hours before t he incident aforesaid to him on that day. He also could not explain why a good n umber of empty cartridges were found scattered in and around place where he was doing duty on the noon aforementioned. In the face of above, non productions of the duty register no way come in the way of prosecution case. 85. It is also stated that the weapon of offence was also not produced before th e court although the same was said to have been seized during the course investi gation. Non-production of the weapon of offence has also caused a good deal of s uspicion about the prosecution case --argues learned counsel for the accused per son. 86. We have already found that the prosecution has convincingly established that on the fateful day, the accused had used the weapon officially allotted to him in firing indiscriminately at the boys who were angling in a pond near the S P’s office, Nalbari for which one of the boys, Madhab Das by name, got injured s everely and later succumbed to the injuries. The non production of firearm in qu estion before the court during the trial too causes no harm to the prosecution c ase. 87. The prosecution also tries to erect its case on a confession allegedly m ade by accused person. But the defence strenuously contends that the confessiona l statement allegedly made by the accused should not be relied on since such a c onfession by no stretch of imagination can be said to be voluntary one. In that connection, it has been pointed out that when the accused was making confession in question he was still under handcuff. 88. In that connection, the prosecution has referred to the decision of High Court in the case of Chanika Karlong (supra).The relevant part is reproduced be low :- (cid:29)The reference made, in this regard, by the learned amicus curiae to the case of Sarwan Singh Rattan Singh Vs. State of Punjab (AIR 1957 SC 637) is not wholly i rrelevant inasmuch the Supreme Court, in Sarwan Singh Rattan Singh(supra), has c learly observed that when an accused person is produced before Magistrate by the Investigating Officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear is to send the accused to j ail custody and give him adequate time to consider whether he should make a conf ession at all. (cid:29) 89. On scrutiny of the evidence on record, the evidence of PW 13 in particul ar, we have found that there is no doubt that the learned Magistrate kept the ac cused under handcuff even when the accused confessed his guilt before him. We ar e constraint to hold that such a confession by no stretch of imagination can be said to be voluntary. We are, therefore, constraint to hold that the confessiona l statement cannot be relied upon to conclude that the accused had committed the offence he was charged with. 90. But then, we have already found that the prosecution has very successfu lly proved that on the fateful day that the accused had fired indiscriminately a t some of the boys who were angling at a pond very close to the place where the accused was detailed for duty on the day in question which injured one of the bo ys who later succumbed to the injuries. Thus, the charge hurled at the accused p erson stood established to the hilt despite confession being found unreliable. 91. We may note here, that section 6 of the Evidence Act is also relevant fo r the purpose of present case. For ready reference Section 6 is reproduced below :- S.6. Relevancy of facts forming part of same transaction.-- Facts which, t hough not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and plac e or at different times and places. 92. In the instant case, soon after the alleged incident, the people who gat hered in and around the place of occurrence, they were heard saying that the acc used had killed the deceased and he killed the deceased having subjected him to volley of gun shots. 93. Such evidence, in our opinion becomes admissible as forming part of the same transaction which further fortify our conclusion that on the fateful day, the a ccused, and none else, had killed the deceased, a young boy of 12 years having s ubjected him to indiscriminate firing. 94. Now, the question is whether for the above firing the accused can be hel d guilty u/s 302 IPC. We have also found that accused died soon after the incide nt under consideration because of the wounds he received at the place of occurre nce. We have also found that the accused fired indiscriminately at the boys who were angling in the pond of the PW10. More importantly, he fired at on those boy s without any rhyme and reason. These revelations are forceful testimony that th e accused intended to kill the deceased and as such, he is clearly guilty of off ence u/s 302 IPC. 95. In the result, we have found no infirmity in the impugned judgment and as such the same is affirmed. Consequently, the appeal fails. 96. We hereby award a sum of Rs.1,00,000/-(One Lakh) as compensation to the fam ily members of the deceased in view of Section 357-A of the Code of Criminal Pro cedure, 1973. The Government of Assam is directed to pay compensation amount of Rs.1,00,000/-/-(One Lakh) only to the wife of the victim. The Government shall d eposit the compensation amount in the Office of the learned Sessions Judge, Silc har within a period of 2 (two) months from the date of receipt of a copy of this judgment. On receipt of the money the same shall be disbursed to the legal heir s of the deceased on proper identification and after obtaining proper receipt. 97. Return the LCR.
Arguments
17. In support of his case, the learned counsel for the appellant has referr ed to the decision of the Hon’ble Gauhati High Court in the case of Keshav Rava Vs. State of Assam, reported in (2011) 2 GLT 151 as well as in the case of Chani ka Karlong Vs. State of Assam reported in (2013) 1 GLT 566.The decisions of Hon; ble Supreme Court in the case of Bhagwan Singh and Ors. Vs. State of M.P., repo rted in (2003) 3 SCC 21 and in the case of Niranjan Panja Vs. State of West Beng al reported in (2010) 6 SCC 525 were also relied on. 18. Controverting the above submissions, advanced from the side of the accus ed-appellant, Ms. S. Jahan, learned counsel for the State respondent, has conten ded that the prosecution case is basically based on accounts of the eye witnesse s and they are none other than PW 1 and PW 10. Situation being such, it is total ly misconceived to say that prosecution case is based on circumstantial evidence only. 19. That apart, there is indisputable evidence to show that on the fateful day, the accused fired at some boys for which one of the boys namely Madhab Das got injured and who succumbed to such injuries subsequently. The testimonies of PW 1 , PW 9, PW 10 and PW 13 (Doctor) together with the evidence of other witnesses, both oral and documentary, make it more than clear that it was the accused, and none else, who killed the deceased on the day in question and also injured the P W 10. 20. We have considered the rival submissions having regard to the materials on record as well as the decisions, relied on by the parties, more particularly, by the learned counsel for the accused person. But before we proceed further, w e find it necessary to have a brief review of the evidence on record and the evi dence of the doctor who conducted autopsy on the body of the deceased is first t aken up for consideration. The doctor who performed autopsy on the body of the deceased was Dr. Tir 21. thanath Sarma who was examined as PW 13. According to him, on 5.7.1996, he was p osted at Nalbari Civil Hospital. On that day, he conducted post mortem examinati on on the body of one Madhab Das, aged about 12 years, male and found the follow ing :- A male dead body average built. Eyes half of mouth open. Hairs soft bla ck. Rigormorties absent. Injuries 1) Entry - A deep penetrating would over back about 12 cm below the angle of left scapula. Margins are invested circular in size. No sign of burning of w ound found. Size is 1/2cm in diameter. Exit - A deep penetrating of wound over lateral side of right scapula in its mid dle 1/3. Margins are evarated oval in shapt. Size is 2 cm x 1.5 cm. Profuse blee ding found from the wound. 2) A deep penetrating wound found over lateral aspect of right calf about 1 2 cm from right ankle joint. Margins are inverted circular in size. No sign of b urning of wound found. Size ‰ cm in diameter. 3) Exit - A deep penetrating wound found over back of right calf about 15 c m from right ankle joint. Margins are averted. Oval in shape. 3cm x 1.5. cm. Pro fuse bleeding from the wound. No other injuries found. All injuries are ante-mo rtem. Thorax - All ready described. Pleurae- injured. Larynx and Trachere-healthy, Rig ht Lung-healthy, Peridardium-healthy, Heart-healthy, Vessels - healthy, Scalp, s kull, vertebra- healthy. Membrane - healthy. Brain and Spinal cord-health,Liver- injured and lacerated. Kidneys- healthy, Bladder - healthy, Organs of generation , external and internal -healthy. Walls -injured. Peritonoum-injured (sever haem orrhage found in the peritoneal cavity. Mouth, Pharynx, Oseophagus-healthy, Stom ach and its contents - healthy. Small intestine and its contents- healthy, Large intestine and its contents- healthy. Fracture - 3rd, 4th, 5th ribs (right) frac tured. OPINION In my opinion the cause of death is due to haemorrhage and shock following multi ple bullet injuries. 22. The evidence of the doctor reveals that the death of the deceased was ho micidal in nature and death was occasioned by bullet injuries sustained by the d eceased. 23. PW 14, Dr. Nripen Kr. Deka, Senior Medical and Health Officer, Nalbari Civil Hospital, Nalbari has stated that on 5.7.96, he was posted at Nalbari Civi l Hospital. On that day, he examined one Hemanta Das on police requisition and f ound abrasion on his lateral thigh 10 cm over the knee joint. The injury, so sus tained by him, was caused by blunt object and was simple in nature. 24. So situated, let us consider the testimony of witnesses who are said to be star campaigners from the prosecution side. They are PW 1, Sri Hemanta Das, P W 2 Khiroda Rajbongshi and PW 10 Sri Harekrishna Goswami. PW 1, a daily wage ear ner, deposes that on 5.7.1996, at about 11.30 am, he was catching fish at the po nd of one Gopal Mukherjee which was situated on the western side of the residenc e of SP, Nalbari. His brother Madhab Das and one Hare Krishna Goswami were with him. 25. Accused Sukhmal was in the vicinity of such place and he enquired them w hether they could catch fish or not. Unfortunately little thereafter, the accuse d started firing on them without there being any rhyme and reason. As a result o f such firing, his brother Madhab Das got injured and died instantaneously. 26. Owing to such firing, he too sustained injuries on the upper part of his right foot. Fortunately for him, Harekrishna Goswami did not get hurt in that i ncident. He presumed that the accused had fired around 20 to 25 rounds of ammuni tions on them. One Army Officer, who was coming to the residence of S.P. at that point of time, asked the accused to stop firing. After the incident, he found h is brother lying partly on the pond and partly on the bank of it. 27. Hearing gun shots, his mother came to such place whereupon he told her t hat his brother was no more. With the help of people, gathered at the place of o ccurrence, his brother was taken to the hospital but he was declared brought dea d. He himself also went to the hospital riding a bicycle and got himself treated there. He was allowed to go home thereafter. 28. In his cross examination, he has stated that there was a jungle near the pond in which they were fishing on the morning aforesaid. His cross-examination further reveals that at that point of time, there were two other police personn el on duty in the residence of S.P., Nalbari. The suggestion that he deposes fal sely was denied by PW 1. 29. PW 10, Sri Harekrishna Goswami deposes that on the fateful day, he along with the deceased Madhab Das and his brother Hemanta Das were catching fishes i n their pond which is situated on the backside of their house. Such a pond is si tuated at a place not far away from the residence of the SP, Nalbari as well. Th ey also found the accused at such place who asked them whether they could catch fish or not. 30. Sometime thereafter, he heard the gun shots. One of the shots passed ove r his head. Having heard the gun shots, they lied down on the ground. The firing continued for some time. When the firing was stopped, he and Hemanta stood up. In the meantime, some other persons came to such place. All of them saw Madhab Das lying partly in the pond and partly on the ba 31. nk of the pond with injuries on his body. Soon thereafter, police came there and took Madhab to hospital. He also accompanied the police. Madhab was declared de ad in the hospital. Police seized the fishing rods and the container from them o n the strength of seizure list, Ext. 4 wherein Ext. 4(1) is said to be his signa ture in the seizure list. 32. In his cross-examination, PW 10 states that all the police personnel who were on duty in the residence of SP, Nalbari were not know to him although he knew some of them by name and face. In his cross-examination, he further states that there is a wall, 6/7 feet in height, which separates the SP office from th e place where they were fishing on the morning in question and as such, entire r esidence of S.P. Nalbari is not visible from such place. 33. PW 2, Smt. Khiroda Rajbongshi is the mother of the deceased. According t o her, she worked as a daily labourer at a hotel at Nalbari which is situated in front of the office of S.P., Nalbari. The deceased Madhab Das was the second so n. On the fateful day, at about 11.30 am, she heard a volley of gun shots coming out from the residence of SP, Nalbari. 34. Hearing such gun shots, she came out from her hotel to the highway nearb y. Coming out of the hotel, she saw her eldest son Hemanta Das crying in front o f the grocery shop of one Marrow. Hemanta told her that her son Madhab was no mo re. Hearing such terrible news, she rushed to her house in search of her son Mad hab. As she did not find Madhab there, she returned to the place of occurrence a nd found Madhab lying on the bank of a pond. 35. She was told by PW 1, her son that Sukhmal Konwar had shot him dead. His son was taken to hospital where he was declared brought dead. In her cross-exam ination, she admitted that she could not remember whether or not she stated befo re the police that her son reported her that accused Sukhmal Konwar had killed h er son. 36. PW 4, Dwijen Kalita, a rickshaw-puller, deposes that on the fateful day, he was coming to the office of SP, Nalbari, taking a passenger with him. But th e moment, they reached the place where the official Bunglow of the SP Nalbari is situated, they heard volley of gun shots coming out from the side of residence of aforesaid officer for which the passenger left his rickshaw and rushed for co ver. He also rushed to his house. Later on, he came to know that someone had fir ed shots from the residence of SP, Nalbari. 37. Soon thereafter, many people gathered in front of the residence of the S P, Nalbari. In that gathering, he, amongst others, also noticed one Army Officer , Hemanta Das (PW 1) and Hareshwar Goswami (PW 10). He also noticed gunshot inju ry on the leg of Hemanta Das. Madhab Das too sustained injuries caused by bullet and was found lying in the ground at such place. Police came to the place of occurrence and also conducted an inquest on 38. the dead body in his presence. An inquest report was prepared on the basis of in quest done on the dead body and the report so prepared was proved as Ext. 1. In his cross-examination, he states that he came to know about the alleged incident from one Army Officer as well as PW 1, Hemanta Das. 39. PW 5, Raju Rajbongshi is the father of the deceased. According to him, on the fateful day, he was working at a hotel at Nalbari. One Deepak had informe d him just after the incident that his son was shot dead. He immediately came to the police station. When he reached the civil hospital, Nalbari, he found his s on lying dead there. His elder son also sustained injuries on his body caused by gun shot. 40. PW 9, Gopal Ch. Mukherjee has stated that his house is situated near the official residence of SP, Nalbari. He has a pond on the backside of his house a nd the said pond was at a distance of 20 feet from the boundary wall of the Bung low of the SP. On the fateful day, while he was returning home, he heard the gu n shots coming from the residence of SP, Nalbari. 41. He came to know from one Bishnu Goswami that his son sustained bullet in jury. But later, he found that his son Sri Harekrishna Goswami did not sustain a ny injury on his body. He also learnt that when firing was going on his son was catching fish in his pond along with deceased and his brother. He, thereafter, l odged an FIR with the police. In his cross-examination, he stated that he did no t witness the incident in question. 42. PW 6, Sri. Dal Bahadur Chetri, a police constable, deposes that on 5.7.9 6, the accused was doing duty on the rear side of the official bunglow of SP, Na lbari. He was doing duty in front side of the aforesaid residence. At about 11.3 0 am, he suddenly heard sounds of gunshots and he learnt that such firing was do ne by accused person as a result of which a boy got killed. 43. Thereafter, S.P., Nalbari handed over the accused to the police personn el. One SLR and ammunitions were seized by police on being produced by Havilder, Nripen Das on the strength of seizure list, Ext. 2. He also put his signature i n such seizure list which he proved as Ext. 2(1). 44. PW 7, Nripen Ch. Das is also a police constable. According to him, on 5. 7.96 he was doing duty as Security Guard at the official Bunglow of the S.P., Na lbari. One Binoy Kr. Mishra was S.P. during that time. On that day, he was a com mander In-charge from 11am to 2 pm. Accused Sukhmal Konwar was detailed to do h is duty on the back side of the official residence of SP, Nalbari. Havilder Dal Bahadur Chetri was detailed to do duty in the front side of the residence of af orementioned officer. 45. Accused Sukhmal Konwar was allotted a Self Loading Rifle (SLR), 3 magazi nes with 60 rounds of ammunitions. At about 11.30 am, he heard barrage of gun sh ots coming from the back side of the residence of S.P., Nalbari. Hearing such gu n shots, he alerted all and came towards the backside of the residence of the SP , Nalbari. Arriving at such place, he found some empty cases of ammunitions lyin g hither and thither. He and Havilder Tez Bahadur Rai and others immediately overpowered the a 46. ccused and brought him back to the barrack. Though, he was given 60 rounds of am munitions on that day, only 37 live cartridges were found in his possession. The y also found 21 empty cartridges at such place. But they did not find 5 rounds o f ammunitions although the accused was given 60 rounds of ammunitions on that da y. 47. Soon thereafter, he also learnt that one Madhab Das who was fishing in a compound on the backside of the residence of SP office got killed for his susta ining bullet injuries. Later, SP, Nalbari handed over the accused person to the Nalbari police. Police seized live/empty cartridges which were allotted to the a ccused on that day on the strength of seizure list, Ext.2. 48. In his cross-examination, he has stated the barrack is situated at a dis tance of 100 yards from the official residence of SP, Nalbari. It is also in evi dence that no one was allowed to go inside the residence of SP without his per mission. He, however, admitted that he did not witness the incident in question. 49. PW 8, Tez Bahadur Rai, also a Havilder, deposes that on 5.7.96, he was d etailed to do duty in the residence of SP, Nalbari. On that day, Nripen Das (PW 7), was in the command of the Duty Guards. Accused Sukhmal Konwar was also with them doing duty in the residence of the SP, Nalbari. Sukhmal was asked to do the duty on the backside of the residence of the S.P. from 10 to 12 noon. One Dil B ahadur was doing duty on the front side of the residence of the SP, Nalbari. 50. At about 11.30 am, he heard gun shots coming from the back side of the r esidence of aforesaid officer. The firing was for quite a long period. Though he made an attempt to know what had gone wrong, he could not do so since firing wa s still going on. When firing was over, they brought the accused to the camp wit h arms and ammunitions. Some empty cases of ammunitions were also collected from such place. 51. As per direction of the SP, the accused was handed over to the police. Late r they found that the boy named Madhab Das got killed in that firing. In his cro ss-examination, he has confirmed that the accused was detailed to do duty in the Bunglow of the SP, Nalbari on the eventful day. 52. PW 11 Sri Anil Kr. Nath is an armed constable. According to him, on the fateful day, he was doing duty in the office of SP, Nalbari. His duty was to iss ue arms to the police personnel as well as to deposit such arms safely in the ar mour. The accused was also doing duty in the residence of SP on that day and was allotted one SLR with 60 rounds of ammunitions. 53. The accused was detailed to do guard duty from 11am to 2pm on the rear s ide of the Bunglow of the SP, Nalbari. At about 11.30 am, he heard the sounds of gun shots. He immediately took position. After sometime, the accused was overpo wered by the In-charge and was brought to the barrack. Out of 60 rounds of ammun itions, they could recover only 34 numbers of live cartridges from the accused a lthough they found another 21 numbers of empty cartridges from the place where t he accused was doing his duty on that day. They also learnt thereafter that one Madhab Das died on sustaining gun s 54. hots wounds on his body. In his cross-examination, he stated that police seized the register used for giving and taking back arms and ammunitions amongst the po lice personnel. He also stated that duty allotment register was not available be fore the court on the day when he rendered evidence before it. 55. PW 12, Nagen Ramchiary and PW 18, Karuna Kanta Kalita too depose that on the fateful day, they were doing duty in the official residence of SP, Nalbari. The accused was also detailed to do duty and he was asked to guard the backside of the house of the aforesaid officers. At 11.30 am, they heard the sound of gu n shots. They immediately took the position. A little later, the commander overpo 56. wered the accused and took him back to the barrack. Later, they came to know tha t a boy succumbed to the injuries on sustaining bullet injuries. In their cross- examinations, they have stated that they did not witness the incident under cons ideration. . 57. PW 20, Sri Binoy Kr. Mishra was the Superintendent of Police Headquarter , Nalbari. According to him, on 5.7.96, he was posted as SP, Nalbari. On that da y, accused Shukmal Konwar was detailed to do duty on the back side of his offici al residence. Around 11.30 am while he was in his residence, he heard sounds of gun shots fired on the back side of the official residence. He enquired the guar d commander as to what had gone wrong. 58. He was told by the commander that the accused, who was detailed to do duty o n the rear side of his official residence, started firing from the alloted fire arms causing injuries to one Madhab Das aged 16 years. The injured was brought t o the Nalbari Civil Hospital where he was declared dead. He immediately contacte d the local police to take necessary action. In his cross-examination, he admitt ed that he did not know if the accused was suffering from any psychiatric proble m during the time under consideration. PW 21 is Sri Bhagaban Sarma. According to him, on 12.08.1996, he was wor 59. king as an armourer in the Nalbari Police Station. On that day, Sri A.R. Medhi o f Nalbari Police Station delivered one SLR for examination in connection with Na lbari PS Case No. 169/96 under Sections 302/326 IPC. He examined the same and fo und that the SLR to be a factory made weapon and in serviceable condition. In th at connection, he has prepared a report which he proved as Ext. 15. 60. PW 16, Sri Aditya Das and PW 17, Jotish Talukdar are also police officia ls. They were heard saying that they were entrusted with the duty of carrying th e dead body to the Nalbari Civil Hospital and in that connection, they were issu ed command certificate. When they brought the dead body to hospital, the hospita l authority also issued them certificate which they proved as Ext. 13. They were not cross-examined by the prosecution PW 19 is Shri Abhiram Medhi. He was the I.O. of the case under consider 61. ation. According to him, on 5.7.1996, he was working as attached officer at Nalb ari P.S.. On that day, O.C. received an FIR from one Gopal Mukherjee. Having rec eived the FIR, he registered a case vide Nalbari P.S. Case No. 169/96 u/s 302/32 6 IPC and entrusted him to investigate the case. 62. Being so entrusted with the investigation of the case, he visited the pl ace of occurrence, examined the witnesses, seized one SLR with three magazines w ith one magazine post, 34 round live ammunitions, 21 round empty case of ammunit ions, one monthly arms and ammunitions register, one duty register on the streng th of Ext. 2. He also seized three numbers of fishing hooks and one empty contai ner on the strength of seizure list, Ext. 4. 63. During the course of investigation, he prepared a sketch map of the P.O. The injured Madhab Das was taken to the Nalbari Civil Hospital for treatment wh ere he died on the same day at about 12.45 pm. He also conducted an inquest on t he body of the deceased and in that connection, he prepared a report which he pr oved as Ext. 4. He also arrested the accused person. He also produced the accuse d before the court to have his confessional statement recorded. 64. The learned Magistrate the confessional statement of accused person. He also did other needful and on conclusion of investigation, he submitted charge-s heet u/s 302/323 IPC against the accused person. In his cross-examination, he ha s stated that PW 1, Hemanta Das did not tell before him that he had reported his mother that accused Sukhmal Konwar killed his brother Madhab Das. 65. PW 15 Md. Ikramul Hussain is a Judicial Officer. According to him, on 6. 7.96, the accused was produced before him to have his confessional statement rec orded. When the accused was produced before him, he explained him about the stat utory warnings and thereafter he gave some time for reflection on the warning gi ven to him. Thereafter, on following all the statutory requirements and directio ns, he recorded the confessional statement of the accused person which he proved as Ext. 12. 66. Above being the evidence, let us see how far such evidence makes out the allegation brought out against the accused person. A perusal of evidence of PWs , particularly PW 6, PW 7, PW 8, PW 11, PW 12, PW 18 and PW 20 very firmly shows that on the fateful day, the accused along with other police personnel, was det ailed for doing duty in the residence of SP, Nalbari. 67. The evidence of those witnesses further shows that the accused was assig ned to do duty on the back side of the residence of SP, Nalbari. That such a pla ce is situated quite closely to the residence of PW 10 and that there is pond on the back side of both those residences are also found well apparent from the ev idence available on record. The sketch map at Ext. 13 too corroborates such proj ections. 68. A further scrutiny of the evidence further reveals that on 5.7.96, the a ccused was given 60 rounds of ammunitions in order to discharge his duty properl y. There is also evidence to show that moments after the incident under consider ation, the accused was overpowered and arms and ammunitions , given to him were retrieved whereupon it was found that although he was given 60 rounds of ammunit ions when he assumed duty on that day, he was possessing only 34 rounds of live cartridges. 69. More importantly, 21 numbers of empty cartridges were recovered from the place where boys were fishing on the aforesaid morning. The accused could not e xplain as to how he used the remaining 26 rounds of ammunitions. He also could n ot explain as to why as many as 21 rounds of empty cartridges are found in and a round the place where he was doing duty on the aforesaid date. 70. It is in that back drop, let us consider the evidence of prime prosecuti on witnesses who are none other than the PW 1 and PW 10. On perusal of the evide nce of PW 1 and PW 10 together in between the lines, we have found that on the f ateful day, PW 1, PW 10 as well the deceased were catching fish in the pond of t he deceased which was situated on the back side of their house and which is also situated on the back side of the official residence of SP, Nalbari. As we wade through the evidence on record more and more, we have again f 71. ound that on the fateful day, the accused was given one SLR with 60 rounds of am munitions. The armored who examined the firearms in connection with case under c onsideration opined that the firearms sent to him for examination was a factory made SLR and it was in serviceable condition. 72. When all those revelations are considered together with the fact that on the fateful day, the accused was given one serviceable SLR with 60 rounds of am munitions together with the fact that he could not account for how he spent 26 r ounds of ammunitions out of 60 rounds of ammunitions given to him on that day, t here cannot be any escape from conclusion that accused, and none else, had fired and injured the aforesaid boy on 5.7.96 at about 11.30 am for which he died soo n thereafter. 73. But then, the prosecution case has come under sharp criticism for reasons mo re than one. One of the important allegations was that PW 1 and PW 10 could not have seen the accused in the official compound of the SP, Nalbari since there wa s boundary wall of about 7/8 ft. in height which must have made it impossible fo r those PWs to see the accused doing duty inside the compound of the SP, Nalbari . However, such an argument has no substance at all. It is true that some 74. PWs have stated that there is a wall between the homestead of PW 10 and the offi cial residence of SP, Nalbari. But then, one must not overlook the fact that the re is indisputable evidence to show that just before the alleged incident the ac cused talked with the boys catching fish in the pond of PW 10. Had the wall been so high as to prevent the people having a glance to the compound of aforesaid o fficer, those boys could not have any conversation with the accused person just before the alleged incident. It is therefore a clear testimony of aforesaid alle gation being without any basis. 75. It has again been contended that the testimony of PW 1 should not be rel ied upon since his claim that he reported his mother about his brother being sho t at by accused person was not supported by the I.O. I have found that in his st atement, I.O. denied the PW 1 having made such a statement before him during the course of investigation. 76. But then, one needs to know that in her statement, PW 2 has very clearly stated that PW 1 told her that the accused had killed her second son and PW 2 d id so just after the alleged incident. In the face of above revelation, the evid ence of the I.O. that PW 1 did not tell him that he reported his mother about th e accused killing his brother no way makes the evidence, rendered by PW 1doubtfu l. 77. Even one assumes for the sake of argument that PW 1 did not tell his mot her that the accused killed his brother, yet, one cannot attach too much importa nce to the failure of the PW1 to relate such a fact to his mother since one can easily imagine what kind the mental state of the PW1 and his other family member s just after the incident in question inasmuch as they found one of their young family members losing his life not only in terrible situation but in most unexpe cted manner as well. The learned counsel for the accused person has also contended that evide 78. nce of PW 1 should not be relied upon since his claim that he sustained wounds d ue to the firing in question has not been supported by the doctor inasmuch as th e doctor did not find any bullet injury on his person. Quite contrary to it, he noticed simple injury on his leg instead. This only serves to show that PW 10 is a unreliable witness. 79. It is true that PW 1 did not sustain any bullet injury. But then, there is evidence on record to show that on the fateful day, the PW 1 did sustain inju ry on his thigh for which he was treated at Nalbari Civil Hospital. Thus, his e vidence cannot be said to be totally false. Being so, only for rendering some ev idence which is partly incorrect, his entire evidence cannot be viewed with susp icion, more so, when such evidence has no bearing on the prime dispute question who killed Madhab Das and how. 80. In this context, it may be stated that it is a settled law that if the e vidence of some witnesses is found truthful in part and laced with falsehood in part, his entire evidence cannot be thrown away if the truthful part can be segr egated from the untruthful part without damaging the intrinsic value of the trut hful part of the testimonies of such witness.