High Court
Case Details
Crl.A. 107/2009 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH By judgment and order, dated 11-06-2009, passed, in Sessions Case No.276/2001, b y the learned Additional Sessions Judge (FTC), Kamrup, Guwahati, the accused-app ellant, Babulal Bairowa, stands convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs.2000/-and, in default of payment of fine, suffer rigorous imprisonment for six months. 2]. . K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. We have heard Mr. S. Chamaria, learned counsel for the appellant, and Mr 3]. The case of the prosecution may, in brief, be described thus: (i) A camp of the CRPF Battalion stood located within the campus of Chh aygaon Police Station. In the said Battalion, accused, Babulal, was posted as a Constable. (ii) On 20-11-1997, at about 10.00 P.M., the accused, while performing h is duties, as a sentry, at Murcha No.1, located at the gate of the said police s tation, opened fire indiscriminately from his LMG, which is a prohibited arm, ca using injuries to several CRPF personnel, namely, Havildar Srikumar, Lance Naik Driver K. Hussain Ali, Lance Naik L. Thangzalung and Rameswar Orang. Immediatel y thereafter, the accused fled away from the CRPF camp, taking along one 7.62 mm LMG Butt No.20, 9mg with 247 rounds of 1.62 ammunition, one SLR Butt No.214 wit h 3 magazines and 60 rounds of 7.62 ammunition. Though the CRPF personnel search ed for the accused, they could not trace him out. The injured were shifted to ho spital. While Rameswar Orang survived, Havildar Srikumar, Lance Naik K. Hussain Ali and Lance Naik L. Thangzalung succumbed to their respective injuries. A writ ten Ejahar was lodged by Head Constable, Rup Sadan, at Chhaygaon Police Station before the death of the CRPF personnel. Based on the said Ejahar and treating th e same as First Information Report (in short, FIR), Chhaygaon Police Station Cas e No. 214/1997, under Sections 326/307/382 read with Section 27(2) of the Arms A ct, was registered and, on the third day, i.e., on 22-11-1997, on vigorous searc h, the accused was apprehended, along with arms and ammunitions, from inside the Library Hall of Srimanta Sankardev Kalakristi Vikash Kendra. 4]. On completion of investigation, police submitted the charge-sheet, under Sections 302, 324, 307 and 382 IPC read with Section 27 (2) of the Arms Act. 5]. The accused pleaded not guilty to the charges framed against him under S ections 302, 324, 307 and 382 IPC read with Section 27 (2) of the Arms Act and c laimed to be tried. 5a]. During trial, prosecution, in support of its case, examined altogethe r 22 witnesses. The accused, in his statement, recorded under Section 313 Cr.P.C ., denied the allegations levelled against him and pleaded that he was innocent. The defence case was of total denial. No evidence was adduced by the defence.
Legal Reasoning
6]. Having come to the conclusion that the charges, framed against the accused-appellant, stood proved beyond reasonable doubt under Section 302 IPC, t he learned trial Court convicted the accused accordingly and passed sentence aga inst him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal.
Legal Reasoning
7]. Appearing on behalf of the accused-appellant, Mr. S. Chamaria, learned c ounsel, has submitted that the prosecution miserably failed to establish that th e accused was found in possession of arms and/or that he had opened fire on the night of the occurrence. In this regard, it is also pointed out by Mr. Samaria, learned counsel, that Rameswar Orang, though a material witness, was not examine d at the trial and, hence, the learned trial Court ought to have inferred that h ad Rameswar Orang been examined, his evidence would not have supported the prose cution’s case. At any rate, therefore, according to Mr. Chamaria, the accused-ap pellant ought to have been given, at least, benefit of doubt. 8]. Per contra, the learned Addl. Public Prosecutor has submitted that the p rosecution well proved that the accused was on sentry duty at the relevant point of time, he was not only seen shooting from LMG, but he also ran away with fire arms and absconded and it was only after three days of the occurrence that the accused was found and apprehended. This apart, points out the learned Addl. Publ ic Prosecutor, the empty cartridges have also been recovered from the room of th e accused, i.e., the place where the accused was on duty. 9]. Before entering into the merit of the case, one needs to refer to the ev idence of PW1 (Dr. Kanak Ch. Das), who performed post mortem examinations on th e dead bodies of Srikumar Das and K. Hussain Ali. 10]. ollows:- On examination of the dead body of Srikumar, the doctor (PW1) found as f (cid:28) A. A male dead body wearing one ganji and one under wear, bo th eyes partly opened mouth partly opened, anus, tis is present all over the body, body was cold on touch. penis healthy, rigor mor B. Injuries: I. One lacerated injury present on the medial side of right knee joint size 16 cm x 20 cm x muscle deep. II. One lacerated injury on right forearm lower part of size 4 cm x 3 cm x (illegible) muscle deep. III. One lacerated injury on the right forearm upper pa rt of size 6 cm x 4 cm x muscle deep. IV. One bullet entry wound with irregular and invertedmargins, surroun cm x 2 cm x muscle deep located on the l knee joint. The bullet passed through the skin, muscle, of the k averted margins. The dir ded by abraded collar measuring 3 ateral side of left the nee joint measuring 10 cm x 6 cm with lacerated and ection is left to right. knee joint and gives rise to an exit wound on the medial side V. One bullet entry wound with irregular and invoked margins surro unded abraded collar measuring 2 cm. x 1 cm located on the wound side of the lef t thigh. Lower part 4 cm above the knee joint. The bullet passes through the ski n, muscles, bones and give rise to exit wound on the medial side of the thigh lo wer part measuring 7 cm x 6 cm with lacerated and everted margins one cm above t he knee joint the direction left to right. One bullet entry wound with irregular and inverted margins s VI. urrounded by abraded collar measuring 2 cm x 1 cm located on the upper part of t he left thigh on lateral side 30 cm below the eliac chest. The bullet passes thr ough the skin, muscles, and give rise to exit wound on the medial side of the le ft thigh middle part measuring 3 cm x 2 cm with lacerated and averted margins. T he direction left to right and above to downward. VII. One bullet entry wound with irregular and inverted margins surrounde d by abraded collar measuring 2 cm x 1 cm x chest cavity deep situated at right side of the chest wall 25 cm right from and line and 6 cm right and below from r ight nipple. The bullet passes through chest wall, phura, right lung and then gi ves rise to exist wound on the enterior chest wall measuring 4 cm x 3 cm with la cerated and averted margins situated 2 cm right from mid line and 8 cm below the right nipple. The direction is right to left and from back to front. VIII. One bullet entry wound with irregular and inverted margins surr ounded by abraded collar measuring 2 cm x 1 cm x abdominal cavity deep, situated at right side of abdomen 14 cm right from mid line and 16 cm below the right ni pple. The passes through abdominal wall, peritoneum, stomach, intestine, measur ing spleen, and left abdominal wall giving rise to exit wound on the left side o f abdominal wall of size 3 cm x 2 cm with lacerated and averted margins situated 20 cm left from mid line, 18 cm below the left nipple. The direction is from ri ght to left and above to downwards @ Viscera was preserved for chemical examinat ion (cid:29). 11]. The post mortem examination, conducted on the dead body of Lance Naik K. Hussain Ali, revealed as follows:- (cid:28)(A). The body is of brown complexion, average built male dead, wearing one ganji, one lungi and one under wear, eyes opened, mouth partly open ed, rigor mortis present all over the body, anus and penis healthy. The body is cold on touch. (B). Injury: (i) One lacerated injury present on the medial side of the right knee j oint size 10 cm x 6 cm. (ii) One bullet entry wound with irregular and inverted margin surrounded by abraded collar measuring 4 cm x 2 cm x muscle deep located on lateral side o f the left leg upper part 10 cm below the left knee joint the bullet passes thro ugh skin, muscles bone and gives rise to exist wound on the medial side of the l eft leg upper part measuring 5 cm x 3 cm with lacerated and everted margin. Dire ction is left to right and below to upwards. (iii) One bullet entry wound with irregular and inverted margins surrounded by abraded collar measuring 3 cm x 1.5 cm x abdominal cavity deep, located on the back of abdomen, right side 11 cm right from mid vertebrae line and 14 cm above the eliac chest. The bullet passes through the posterior abdominal wall, periton eum, right kidney, intestine, liver, left lung and lodged on the anterior chest wall left side inside the muscles and the bullet is recovered during dissection . The direction is from right to left side back to front and below upwards. The size of the recovered bullet is 0.6 cm x 2.3 cm partly deformed having five land marks on the body which are twisted to the right side. After putting initialled the bullet was put in a plastic bottle and sealed and labelled and kept to be h anded over to investigating officer for investigation. The bullet and the wearin g garments were handed to escorting constable after post mortem examination. The viscera was preserved for chemical analysis. (cid:29) 12]. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of rifle fire arm injuries described above, which were ante mortem and homicidal in nature. 13]. The findings of the doctor (PW1), who conducted post mortem examinations on the dead bodies of Srikumar Das and Lance Naik K. Hussain Ali, and his opini on with regard to the causes of death of Srikumar Das and Lance Naik K. Hussain Ali, have remained undisputed. This apart, we, too, do not find anything inheren tly improbable or incorrect in the findings of the doctor and/or in his opinion with regard to the causes of death. PW.2 (Dr. Pratap Ch. Sarmah), who conducted post mortem examinat 14]. ion on the dead body of Lance Naik L Thangzalung, found as follows:- (cid:28)(A). A male dead body of average built, body looked pale, blood stains present on the different place of the body, rigor mortis present all over the bo dy. (B). Injury: (i) One bullet entry wound size 0.8cm x 0.6 cm x muscle deep present on outer aspect of right forearm having exist wound (No.II) measuring 6 cm x 4.5 c m on front of right forearm.. (iii) a bullet wound 1 cm x 0.8 cm x muscle deep present on front of abdo men 9 cm below the right nipple having its exit wound (No.IV) measuring 4 cm x 2 cm on the right side of abdomen 10 cm below and right to entry wound ( No.III). (v) a bullet entry wound size 1.5 cm x 1 cm x into abdomen cavity deep prese nt on left side of the abdomen at 6 cm above the enterior superiorl iliac spine on left side having exist wound (wound vi No.6) measuring 4 cm x 3 cm present of abdomen at 10 cm left of the amblica. (vii) A bullet wound 1 cm x 0.8cm x abdomen cavity deep. Present on the rig ht side of abdomen at six cm above right enterior superior iliac spine. (viii) One exit wound of bullet, measuring 4 cm x 2.5 cm present on left side of the abdomen at 3 cm above, enterior inferior iliac spine of left side part o f small intestine coming out side. (ix) One bullet entry wound 1 cm x 0.8 cm x chest cavity present on left side of chest 5 cm below the pit of axilla. (x) One bullet exist wound 5 cm x 3 cm on left side of the chest 10 cm below the left nipple. @ All organs were pale, right, lung was healthy, left lung was having bullet inj ury. Heart was healthy and empty. Brain was healthy and pale. Stomach healthy co ntaining size hundred gram of partly digested food having smell resembling that of alcohol. (D) Viscera was preserved and sent to forensic science laboratory from analys is. (cid:29) PW.2 has also opined that the death of Thangzalung was due to shock and 15]. haemorrhage resulting from bullet injuries, which were ante mortem and homicidal in nature. Same as the evidence of PW.1, the evidence of PW.2, too, have remained u 16]. ndisputed and we, therefore, see no reason to disbelieve or discard the findings of PW2 or his opinion with regard to the cause of death of Lance Naik L Thangza lung. From a combined reading of the evidence, given by PW1 and PW2, we find t 17]. hat all the said three deceased persons had sustained bullet injuries, which wer e ante mortem and homicidal in nature, and their deaths resulted from the shock and haemorrhage, which were caused by bullet injuries. 18]. PW.3, Sri Modan Choudhury, and PW.4, Sri Khagen Ch. Nath, turned hostile to the prosecution. According to the evidence of PW3, on 22.11.97, at about 3 p m, Officer-in-Charge, Chhaygaon Police Station, called him to the police station and told him that he had apprehended a CRPF personnel, who had been trying to e scape with arms and ammunitions after causing deaths of some persons. Though PW3 has deposed that Ext.4(1) is his signature, he has alleged that he was not show n any arms and ammunitions. 19]. In his cross-examination, PW3 was categorical that he was not present at the time, when police had apprehended the accused nor was he present at the tim e, when police had allegedly made seizure of any article. 20]. So far as PW4 is concerned, he has deposed that he had heard that a CRPF personnel had killed two other CRPF personnel by firing and after two days ther eafter, a person, who used to light lamp at Sankardev Kala Kristi Khetra, inform ed their Secretary, Sukleswar Kalita, that he had seen a person lying inside the shelf of the said Kala Kristi Khetra and, in the evening, Sukleswar informed th em (PW4 and others) about what he had been reported and, then, police was inform ed. It is in the evidence of PW4 that in the evening, taking CRPF personnel 21]. along with him, Nilachal Bharali (PW20) went to said Kala Kristi Khetra and appr ehended the CRPF jawan, but he (PW4) did not himself see, when the CRPF jawan wa s apprehended inasmuch as he was, at that point of time, according to the eviden ce of PW4, at the Inspection Bungalow with doctor Kamala Kalita (the then Health Minister). This witness, too, was declared hostile, though he admits that Ext.4 A close reading of the above evidence of PW3 and PW4 shows that their ev (2) is his signature. 22]. idence do not extend any support to the prosecution’s case. 23]. Coming to the evidence of PW.5, a Havildar in CRPF attached to the CRPF Battalion, we notice that according to his evidence, his Battalion, at the relev ant point of time, camped at Chhaygaon Police Station and, according to him, tot al number of 75 to 80 CRPF personnel used to stay in the Police Station Camp of Chhaygaon and that accused Babulal was a constable of the Battalion and he, too, used to stay with them. 24]. Describing the occurrence, PW5 has deposed that on 20-11-1997, the accus ed was on sentry duty from 9 P.M. to 11 P.M. at the main gate of the said Police Station and that at the sentry post, the accused was alone, he had one LMG with nine magazines and as many as 270 bullets were there in those magazines and one self-loading rifle with three magazine and 60 rounds of ammunitions. PW5 has cl arified that the LMG was placed on the brick wall of the sentry point and the SL R was hanged over the shoulder of the sentry on duty. It is in the evidence of PW5 that he, on the night of the occurrence, wo 25]. ke up on hearing the sound of firing from LMG. PW5 adds that on hearing the soun d of firing, all the CRPF personnel of the Company got up and took their require d positions to challenge the firing and, at that very movement, he (PW.5) heard a sound, (cid:28)Babulal did the fire, Babulal did the fire (cid:29). PW5 has also deposed that when he went a bit forward, he saw the accused fleeing away by path located nea r the Mandir (temple) with a SLR and LMG and while the LMG was handing from his neck, the SLR was hanging from his shoulder and that the accused entered into th e jungle near Ganesh Mandir after swiftly running away and although the CRPF per sonnel went out in search of the accused, they could not find the accused at nig ht. 26]. It is in the evidence of PW5 that he (PW.5) along with others rushed to the room and found Srikumar, Hussain Ali and Thanzalung lying, on their beds, in pool of blood and he also noticed bullet injuries on their bodies and that ther e were also bullet marks on the walls of the room. It is also in the evidence of PW5 that Rameswar Orang had sustained bullet injury on his leg and he was also lying on his bed. The further evidence of PW5 is that all the injured, including Rameswar, were shifted to a private Nursing Home, but the doctor declared three of them as already dead, whereupon dead bodies were sent to Guwahati Medical Co llege and Hospital and police were informed by him (PW.5) by lodging an Ejahar. 27]. It is also in his evidence of PW.5 that he collected 24 empty cartridges from the room of the accused, the cartridges of size 7.62 had been fired from t he LMG, which was in possession of the accused, and that the cartridges, so reco vered, were, in his presence, seized by the police. It is in the evidence of PW5 that police also seized one ’in-and-out’ register as regards issuance of arms t o the CRPF personnel, which indicates possession of LMG and SLR with accused Bab ulal having countersigned. Further evidence of PW5 is that from the duty registe r, dated 20-11-1997, it transpires that the duty of accused Babulal was from 9 P M to 11 PM at the sentry post. PW5 has deposed that later on, accused was appreh ended from a public building. 28]. Although PW.5 was cross-examined, there is no denial of the fact that th e accused was on sentry duty at the relevant point of time, that LMG and SLR wer e with him and he was apprehended after the occurrence along with aforesaid fire arms. However, though PW.5 denied that he had not stated before the Investigatin g Officer (PW20) that he had seen the accused fleeing away immediately after the occurrence, the Investigating Officer (PW20) has confirmed that PW5 did not sta te before him that he (PW5) had seen the accused fleeing away. 29]. Notwithstanding, however, the fact PW5 had not stated before the police that he had seen the accused fleeing away, the fact of the matter remains, as al ready indicated above, that there has been no denial of the evidence of PW5 that on the day of the occurrence, the accused-appellant was at sentry duty between 9 and 11 pm at the main gate of the said police station and the accused-appellan t had with him LMG and SLR and that the accused had fled away and he was apprehe nded on the third day of the occurrence along with the fire-arms. 30]. In the light of the above admitted evidence on record, we, now, turn to the evidence of PW6, who is a constable in CRPF. This witness’s evidence is that he was sleeping in his room, along with other CRPF personnel, at the time o f the occurrence. Describing the occurrence, PW6 has deposed that he saw bullets coming from the window and that the bullets were being fired from LMG and he, t herefore, along with other CRPF personnel, took position, he switched on the lig ht and saw injuries on the bodies of two persons and another was lying wrapped i n blanket. It is in the evidence of PW6 that when he switched on the light, the firing stopped. PW.6, along with his colleagues, lifted the injured and found th at three persons were dead and one person sustained injury on his leg and they w ere all sent to nearby hospital. PW6 has also deposed that all the CRPF personne l shouted that accused Babulal did the firing. However, PW.6 did not say where the accused was at the relevant time, but PW6 has deposed that he, along with ot hers, went out in search of accused Babulal, they went to Kamakhya Railway Stati on in search of the accused and, on the third day, the accused was apprehended and that after the accused was apprehended, he saw the accused at Police Station . PW6 has claimed that police recovered LMG and SLR from the possession of the a ccused. 31]. In his cross-examination, PW6 has admitted that as there was darkness in the room, he had not seen who had fired at their room, but his evidence that he , along with others, did go in search of the accused clearly shows that the accu sed, immediately after the firing, had disappeared and he was searched for by hi s colleagues in the CRPF camp, but the accused remained untraceable until the ti me he was seen at the Police Station by PW6. 32]. PW.7, Sunil Kr. Prasad, was also in the room, where firing had taken pla ce. He has stated that the sentry point was attached to their room near the wind ow and he woke up on hearing the sound of firing and that the firing was from a LMG. It is in the evidence of PW7 that in all, 26 rounds were fired and that he had heard that Babulal had opened fire. According to him, injured Rameswar shou ted, Babulal did the fire, chase him, chase him’. PW7 saw the deceased personnel with bullet injuries, but the accused fled away and went missing. PW7 has furth er alleged that the accused fled away with LMG and SLR. 33]. Coupled with the above, it is also of great significance to note that ot her than the accused-appellant, Babulal, none else disappeared from the said cam p nor is it in dispute that immediately before the firing, accused was on sentry duty, at the main gate of the said Police Station, the sentry post being attach ed to the room, where CRPF personnel were showered by bullets. 34]. Bearing the above facts in mind, let us proceed and come to the evidence of PW.8, Surendra Kumar Sahu, who was on sentry duty, at the sentry point, loca ted near the arms room. He was on duty between 8 and 10 P.M. and, according to h im, the accused was on duty at sentry point No.1 situated near the main entry of the Police Station, which was attached to the room, where the deceased personne l and injured were sleeping. PW8 has deposed that accused Babulal was, on duty, at sentry point No.1 from 9 PM to 11 PM. 35]. It is in the evidence of PW8 that while he was on duty, he heard sound o f firing from LMG coming out from the sentry post no.1 guarded by accused Babula l. PW8 has clarified that there were several rounds of firing within the range o f 10 to 15 seconds and he also saw injured Rameswar coming out of his room shout ing Babulal was firing. 36]. PW.8 has categorically stated that he saw accused Babulal going out from the sentry post with LMG and SLR and that the accused fled away. PW8 has depose d that he blew his whistle and, on hearing his whistle, all staff of the camp wo ke up and went to the room, where firing had taken place (i.e., the room attache d to the sentry point where accused Babulal was on duty), and he (PW8), too, saw dead bodies of the said deceased persons and injured Rameswar and noticed that all the victims had sustained bullet injuries and he had also noticed several h oles, in the walls of the room, which were caused by bullets and as many as 24 n umbers of empty cartridges were found in the room. 37]. It is in the evidence of PW8 that accused Babulal could not be traced ou t on that day and he could be arrested only after 3rd day along with LMG and SLR . 38]. Lending support to the evidence of PW.7, PW8 has deposed that he saw the accused fleeing away from the place of occurrence immediately after the inciden t and that the accused was on duty at sentry point No.1 from 9 PM to 11 PM. 39]. Though PW8 has denied that he had not stated before the police that he h ad seen the accused running away along with SLR, the Investigating Officer (PW20 ) has confirmed that this witness (PW8) had, indeed, not stated before him that he (PW8) had seen the accused running away with LMG and SLR. 40]. In his cross-examination, however, PW8 has clarified that though he had not seen bullets being fired from Sentry Point No.1, he had heard firing from LM G coming out from Sentry Point No.1, which was, admittedly, guarded by accused B abulal. It has also surfaced from the cross-examination of PW8 that the accused had disappeared immediately after the occurrence with SLR nor is it in dispute t hat the accused was, indeed, on duty, at Sentry Point No.1, between 9 and 11 pm on the night of the occurrence. 41]. Broadly in tune with the evidence of PW6, PW7 and PW8, PW9, who was also one of the members of the said CRPF Camp on the night of the occurrence, has de posed that on the night of the occurrence, while he was sleeping, he heard sound of firing from LMG and woke up and noticed that bullets were coming from the op en window of their room from the direction of Sentry Point No.1, which was attac hed to the room, where they were sleeping, and, then, firing stopped and that Ra meswar Orang, who was sleeping in the room, went out shouting Babulal was firing , Babulal was firing. 42]. The material aspects of the evidence of PW9, which have remained unshake n, show that he noticed bullets being fired from the direction of the Sentry Poi nt, which was attached to the room, where they were sleeping, and it has also co me on record that the said Sentry Point was, at the relevant point of time, mann ed by accused Babulal inasmuch as Babulal was on duty at the said Sentry Point. Turning to the evidence of PW10, another CRPF personnel of the said camp 43]. , we notice that he discharged his duty till 9 PM at sentry post No.1 and the ac cused also arrived at 9 PM to sentry post no.1 and released him. Accused came wi th a SLR and three magazines being issued from the magazine room and one LMG was already there with a wooden stand on the brick wall. According to PW10, the sai d LMG remains, at the sentry point, in the charge of guard commander. The accuse d released him from the said sentry point and took over the charge of LMG from h im and that there were 9 magazines of LMG and each magazine contained 30 rounds of bullets. 44]. It is in the evidence of PW10 that after handing over the charge to the accused, he (PW.10) went to his room and after taking supper, he slept and while he was sleeping, he heard sound of firing from LMG, got up and took position an d, after some moments, when he went to the Sentry Point No.1 (Morcha No.1), he f ound the said sentry point vacant and the SLR and LMG were also found missing. PW10 has deposed that he also heard Rameswar shouting, (cid:28)Babulal fire kiya, Babul al fire kiya (cid:29) and he, along with another staff, went in search of the accused. 45]. No contradiction, between the evidence given by PW10 at the trial and hi s previous statement made before the police, could be pointed out by the defence during cross-examination except that the Investigating Officer (PW20) has prove d that this witness had not stated that Rameswar Orang was heard shouting, ’Babu lal fire kiya’ What has, however, surfaced unscathed from the evidence of PW10 is that 46]. it is from him that the accused had taken charge of Sentry Point No.1 and was on duty at the time of the occurrence and, immediately after firing had stopped, t he accused disappeared from the said Sentry Point along with SLR and LMG inasmuc h as the said Sentry Point was lying vacant indicating thereby that it was the a ccused, who had fired and fled away. 47]. PW. 11 was a security guard of Company Commander Mr. Shah Nawaj Khan, an d, at the relevant point of time, he used to stay in a separate police quarter a t a distance of 1000 yards from the main CRPF camp (Gate), which was situated wi thin the campus of Chhaygaon Police Station. It is in the evidence of PW.11 that he also heard the sound of firing and he, along with Khan and others, rushed to the main camp. PW11 saw the dead bodies of deceased CRPF jawans inside the room . It is also in the evidence of PW11 that the sentry point (Morcha) No.1 was at tached to the room, where the occurrence took place, and he found no man at sent ry point. PW 11 has also deposed that the LMG, fixed on that sentry point, was a lso not seen there and PW11 was told by others that accused Babulal did the firi ng. PW11 has further deposed that he witnessed the seizure of LMG, SLR and ammu nitions recovered from the possession of the accused. The evidence of PW.12 (Joynanda Baishya) is that he heard the incident o 48]. f firing, which was caused by Babulal. According to the evidence of PW12, on th e following day, the dead bodies were sent to Guwahati Medical College and Hospi tal for post mortem examination under his custody. PW12 has also deposed that d uring post-mortem examination, a bullet was recovered from the body of deceased K. Hussain, which was seized by the Investigating Officer. 49]. The crucial evidence is the evidence of PW.13 (Biren Choudhury), who has deposed to the effect that on 20.11.97, at about 9.30 pm, he, along with Md. Ha smat Ali (PW15) and Dhani Das @ Dhaneswar Das (PW. 16), went to Chayygaon Police Station to discuss some matter with Officer-in-Charge, Chayygaon Police Station , and, at about 10 pm, he heard sounds of firing from the CRPF camp and, on hear ing the sounds of firing, the Officer-in-Charge, Chayygaon Police Station, left the room asking them to sit there for a while and, at that time, he (PW13) saw a CRPF personnel, namely, Babulal, running eastward from in front of the Mandir t aking a gun in his hand and, then, the Officer-in-Charge informed PW13 and his c ompanions that men had been killed and asked them to leave the place and, accord ingly, they left the place after sometime. On the following day, at about 9 am, on coming to the said police station, PW13 found dead bodies, which were being c arried to the said police station. 50]. In his cross-examination, PW13 has clarified that he had not himself see n the firing and denied that he could not recognise Babulal at the time of the o ccurrence. This assertion of PW13 has gone completely unchallenged by the defenc e. It is also not the case of the defence that PW13 had not stated before police , during investigation, that he had seen Babulal running away with firearm in hi s hand. So far as PW15 is concerned, he, while supporting the evidence of PW13, 51]. has deposed that at about 8 or 9 pm, he came with PW13 to Chayygaon Police Stati on and while sitting at the said Police Station, he heard gunshot being fired an d, on coming out, he saw a person running away by the front side of the temple s ituated in front of the said Police Station with a gun in his hand. 52]. It is in the evidence of PW15 that he would be able to recognise the per son if he sees him and that two or three days thereafter, when police apprehende d the said person, he went to the Police Station and saw him there and recognise d him. This witness has deposed that he had not seen the actual firing. 53]. What surfaced unscathed from the evidence of PW15 is that he did go, at the relevant point of time, to the said Police Station and, had seen, soon after the occurrence, a person running away with a firearm in his hand and while PW15 knew the said person as Babulal, PW15 recognised him after he was apprehended. The assertion that PW15 had seen the accused and had recognised him was not even disputed by the defence. 54]. Situated thus, one cannot help but conclude, in the light of the evidenc e of PW13 and PW15, that immediately after the firing stopped, these two persons , who are independent witnesses, had seen the accused-appellant running away wit h firearm in his hand. 55]. Close on the heels of the evidence of PW13 and PW15, PW16 has deposed th at he had gone to the Police Station with PW13 and PW15 and while they were talk ing to the Officer-in-Charge, Chayygaon Police Station, they heard gunshot being fired and on going out, they saw a person from CRPF camp crossing the road by t he front side of the temple with a gun in his hand. 56]. PW16 has candidly conceded in his examination-in-chief that he would not be able to recognise the person if he sees him. 57]. In his cross-examination, PW16 has also clarified that he had not seen t he shooting himself, but he has asserted that he has seen the person, in questio n, from a distance of about 100 cubits and this assertion of PW16 has gone undis puted by the defence. 58]. In the light of the unassailed evidence of PW13, PW15 and PW16, there ca n be no escape from the conclusion that these witnesses were present at the said Police Station at the time when gunshots were being fired inasmuch they were si tting with the Officer-in-Charge, Chayygaon Police Station, at the time, when fi ring took place and the said Officer-in-Charge went out of his room. These thre e persons also came out of the room and saw a CRPF personnel running away with a gun in his hand. Though PW16 could not recognise the said person, PW13 undisput edly knew the person as Babulal and PW15 having seen the said person after the s aid person was apprehended, could reognise him as the accused. 59]. According to PW.14, Chabin Saloi, he was an employee of Chhaygaon Shrim anta Sankardev Kalakristi Bikash Kendra, and had been performing his duty of lig htening the lamp. On the day of the occurrence, when he entered the building to light the lamp, he saw a person lying on an Almirah, containing books, inside th e library. PW14, then, according to what he has deposed, immediately, rushed to Chhaygaon Police Station and informed the police, whereupon police took the key of the library from him and apprehended the person along with LMG and Pistol. 60]. PW14 has deposed that the accused was in Khaki uniform and, later on, he (PW14) came to know that the said person’s name was Babulal and he was a CRPF p ersonnel. PW14 has also deposed that police seized the arms from the custody of the accused in his presence. What, now, needs to be noted is that the material aspects of the evidenc 61]. e of PW14 have gone unchallenged by the defence. Thus, the unshaken evidence of PW14 clearly shows that the accused was found lying on the alimrah inside the li brary and police apprehended him along with arms, which he was carrying includin g a LMG. 62]. PW.17, Md. Shahnawaz Khan, who was, at the relevant point of time, Comma ndant of the CRPF Battalion located at Chayygaon Police Station, has deposed tha t Rameswar informed him that Babulal, after firing inside the barrack by LMG thr ough the window, fled away and he (PW.15) sent the injured to the hospital. Acco rding to what PW17 has deposed, he (PW17) organised a search party to trace out the accused, who had escaped with one LMG, 9 magazines with 246 nos. of 7.62 amm unitions and SLR rifle with 3 magazines & 60 rounds of ammunitions. PW17 has fur ther deposed that the SLR was personal weapon of the accused; whereas the LMG wa s a sanctioned weapon. It is also in the evidence of PW17 that after two days of search, Babulal was found in a house, which was used as a Library and the LMG, SLR and ammunitions were recovered from his possession. PW17 has clarified that the ammunitions were light ammunitions. PW17 has deposed that during investigati on, police seized an in-and-out register, which shows that the SLR was issued to accused Babulal and the duty register shows that accused Babulal had taken LMG and ammunitions. 63]. On considering the evidence of PW17, what clearly emerges is that accuse d did disappear with SLR, LMG and some ammunitions on the night of the occurrenc e and he was apprehended from a library, which, in the light of the evidence of PW14, was located inside Chayygaon Sankardev Kala Kristi Vikash Kendra. 64]. PW.18, Budhpal Singh, another CRPF personnel, has deposed that while he was discharging patrolling duty, as sentry, at Chhaygaon Police Station, he hear d the sound of firing and he also heard that Babulal, after firing into the barr ack, had fled away with arms and ammunitions. PW18, according to his evidence, i mmediately, rushed to the quarter of PW.17 to inform him (PW17) about the occurr ence and met PW.17 on the way, who was also proceeding towards the place of occu rrence. 65]. PW18 has also deposed that PW.17 ordered him to take a vehicle and go ou t to trace Babulal. Thus, the evidence of PW18, too, shows that accused had disa ppeared immediately after the firing took place. 66]. PW.19, Kanteswar Gogoi, who was inspector of Police, at the time of the occurrence, has deposed that he submitted charge sheet against the accused. Defe nce has, however, declined to cross-examine PW19. The evidence of PW.20, Nilachal Bharali, Inspector of Police, who had be 67]. en serving as Officer-in-Charge, Chhaygaon Police Station, is that he heard the sound of firing coming out of the CRPF camp situated within Chhaygaon Police Sta tion and he (PW.20), being the officer-in-charge, Chhaygaon Police Station, imme diately proceeded to the CRPF camp along with other police personnel. The injure d were, according to the evidence of PW20, immediately, shifted to nearby Life C are Nursing Home and he (PW20) sent a search party to find out accused Babulal, who had immediately after the incident, run away with arms and ammunitions. 68]. PW20 has also deposed that he entered the necessary information in Gener al Diary and, on receipt of formal Ejahar, lodged by the informant, he registere d a case. 69]. It is in the evidence of PW20 that he seized 24 rounds of empty cartridg es of 7.62 bore, which were fired from the arms of accused Babulal, one fired bu llet was also recovered from the place of occurrence and he recorded the stateme nts of the witnesses. It is also in the evidence of PW20 that injured Srikumar, Hussain Ali and L. Thangzalung succumbed to their injuries at the hospital and P W20 deputed Sub-Inspector, Nabin Haloi of Chhaygaon Police Station, for holding inquest on the dead bodies and to arrange for post mortem examination. 70]. It is the further evidence of PW20 that on 22-11-1997, he got an informa tion that one man had entered into library and hiding himself there and he (PW20 ), along with police and CRPF personnel, went there and, on peeping through an w indow, they saw accused Babulal inside the library, the accused was over powered and one LMG, one SLR, 3 magazines of SLR containing 60 rounds of live ammunitio n & 9 magazines of LMG containing 246 rounds of ammunitions were recovered from the possession of the accused, which were seized in presence of the witnesses. P W20 also seized wearing apparels of accused. 71]. It is in the evidence of PW20 that at the time of post-mortem examinatio n, one bullet was recovered from the dead body of deceased K. Hussain Ali and, o n being handed over by the doctor, it was seized by Exhibit-8. The seized LMG, 24 rounds fired cartridges and 2 bullets were, according to the evidence of PW20 , sent to Forensic Science Laboratory for examination. PW20 had also seized, in the light of the evidence on record, one in-and 72]. -out register and one duty register from the CRPF camp vide Exhibit-7. From the duty register, it transpired that the seized LMG, SLR and ammunitions had been i ssued to accused Babulal. 73]. The material aspects of the evidence of PW20 have remained wholly untouc hed by the defence and the evidence, so given by PW20, clearly shows that the ac cused had been using prohibited firearms, which had been issued to him and the b ullet found from the dead body of K. Hussain Ali, was sent to Forensic Science L aboratory for examination. From the evidence of PW20, it also clearly transpires that the accused was found in the library as has been deposed to by PW13 and PW 15 and apprehended from there. 74]. PW.21, Nabin Haloi, is an attached officer to Chhaygaon Police Station, who had conducted inquest on the dead bodies of the said deceased persons. This witness has deposed that he issued requisition for treatment of injured Rameswar and sent the dead bodies for post-mortem examination. 75]. PW.22, Monoranjan Talukdar, who was, at the relevant point of time, a Sc ientific Officer, Forensic Science Laboratory, Guwahati, has deposed that on 29- 11-2-1997, Superintendent of Police, Kamrup, sent one wooden box containing one 7.62 LMG bearing No.15381238, which is marked as Ext. 1, 24 nos. fire cartridges , which were marked as Ext. 2 to 25, one fired bullet marked as Ext.26, one fir ed bullet marked as Ext. 27, to Director, Forensic Science Laboratory, for exami nation and, on examination, PW22 found as follows:- (cid:28)Ext. 1 is the Light Machine gun. The firing pin impression on Ext. 2 to 25 were compared with the firing pin impression one test fired cartridge cases by Ext.1 under comparison microscope and were found to be similar. Therefore, it can be opined that Ext.2 to 25 were fired by Ext. 1. The striation (rifling mark) marks on Ext. 26 and 27 were compared with those on test fired bullets by Ext.1 under comparison microscope. However, no definite opinion could be given whether or n ot Ext. 26 and 27 were fired by Ext. 1 due to insufficient data. (cid:29). 76]. Although a Scientific expert cannot give definite opinion as to whether Ext. 26 & 27 were fired from LMG due to insufficient data, he could confirm that the empty cartridges Ext. 2 to 25, which were recovered from the place of occur rence, were fired by Ext.1, that is, LMG. 77]. the accused, may, therefore, be summarized as follows:- The incriminating circumstances, established by the prosecution against (1) The accused was on sentry duty, on 20-11-1997, from 9 PM to 11 PM at sentry post no.1, which was situated near the room/hall, where the deceas ed persons and other CRPF personnel were sleeping. (2) As many as 4 (four) CRPF personnel sustained firearm inju ries and 3 (three) of them died due to fire-arm injuries. (3) The incident occurred at around 10 PM, when the accused was on duty at the sentry point no.1. The accused, at 9 PM, on the day of the o ccurrence, took charge of the sentry post from PW.10 and he also took the charge of the LMG, in question, which, later on, came to be seized in the circumstance s as mentioned above. (4) Immediately after the firing, accused fled away from t he camp along with the arms and ammunitions, which were, eventually, seized from the possession of the accused. (5) While the accused was running away from the place of occurrence, he was seen by witnesses and, as soon as the firing stopped, the accused abscon ded and, on vigorous search, he was found hiding himself in a library room of Sh rimanta Sankardev Kalakristi Kendra building. (6) The LMG, which was meant for sentry post, and personal SL R along with magazines, were recovered from the possession of the accused. (7) As per the ballistic report, the empty cartridges, rec overed and seized from the place of occurrence, were fired from the LMG, which w as recovered and seized from the possession of the accused. 78]. Learned counsel for the appellant has cited the case of Gurcharan Singh Vs. State of Punjab (AIR 1963 SC 340). In the cited case, the seized cartridge and gun were sent for examination to ballistic expert but no report was produced before the trial Court. In the other case of Mohinder Singh Vs. the State (AIR 1953 SC 415), the prosecution could not prove that the death of the deceased wa s due to injuries caused by lethal weapons and it was held that it was the duty of the prosecution to prove by expert evidence that it was likely, or at least, possible for the injuries to have been caused by the weapon with which, and in t he manner in which, they were alleged to have been caused. In Mohinder Singh (s upra), the prosecution could not prove whether the injuries, which were alleged to have been caused by the accused, were caused by a gun or by a rifle. 79]. In the present case, the doctor, who examined the dead bodies of the deceased persons, has, however, clearly opined that the deceased persons sustai ned bullet injuries. One bullet was also recovered, while conducting the post-mo rtem examination from the body of Lance Naik K. Hussain Ali. Therefore, there ca nnot be any doubt that the deceased persons died due to bullet injuries sustaine d by them. Only because the ballistic expert did not give definite opinion as to whether the fired bullets were fired from the seized LMG, the other circumstanc es, appearing against the accused, cannot be brushed aside, which clearly indica te that it was the accused, who had caused death of the said three deceased pers ons by his act of indiscriminate firing. 80]. The fact remains that the victim and other CRPF personnel were sleeping in a hall and adjacent to the hall, there was sentry point no.1, where the accu sed was on duty at the relevant point of time, and the LMG, SLR and other ammuni tions were in the custody of the accused. There was firing through the window of the hall, the accused, immediately, fled away from the place of occurrence alon g with arms and ammunitions and while the accused was fleeing away, he was seen by witnesses, particularly, PW13 and PW15. This apart, empty cartridges, recover ed from the place of occurrence, were fired by LMG, which the accused had in his custody and which was recovered and seized from the possession of the accused i n the circumstances as indicated above. Thus, the fact that LMG and SLR, along w ith ammunitions, in question, were recovered from the possession of the accused has been clearly proved. The accused, in his statement, recorded under Section 3 13 Cr.P.C., failed to give any explanation against the incriminating materials p ut to him. 81]. When the accused-appellant was on duty along with arms and ammunitions a nd there was incident of firing, it was his burden to explain as to who opened t he fire. 82]. Though it has been agitated before us, on behalf of the appellant, that Rameswar Orang, who had sustained injury and who was heard shouting to the effec t that Babulal had been firing, has not been examined and adverse inference need s to be drawn against prosecution, we find that even without examination of the injured Rameswar Orang, prosecution has clearly proved by the circumstantial evi dence, which we have discussed above, that it was the accused-appellant, who had opened fire by the fire arms, which he was in possession of, and he happened to cause intentional death of the said three persons. Non-examination of Rameswar Orang, in the facts and attending circumstances of the present case, cannot be s aid to have adversely affected the veracity of the prosecution’s case. 83]. There is no doubt, as has been rightly pointed out, on the strength of t he decision, in Dhananjay Chatterjee Vs State of West Bengal, reported in (1994) 2 SCC 220, that abscondance by itself is not a circumstance, which can lead to the conclusion consistent with the guilt of the accused, for, it is not uncommon that an innocent person, on being falsely implicated, may abscond to save himse lf. The case at hand is, however, otherwise inasmuch as the bullets were fired f rom the LMG, which was, at the relevant point of time, in the possession of the accused-appellant. The accused-appellant had no reason to flee away if he was no t the offender. This apart, it was within the special knowledge of the accused-a ppellant alone as to how the fire-arm, which he possessed, were used for the pur pose of shooting inasmuch as it was the accused-appellant, who was on duty at Se ntry Point No.1 with LMG. Because of what have been discussed above, we find that the prosecution 84]. successfully proved that it was the accused-appellant and none else, who had int entionally caused death of the three deceased and he was, therefore, clearly pro ved guilty of the offence of murder punishable under Section 302 IPC. We, therefore, uphold the judgment passed by the learned trial Court con 85]. victing the accused-appellant under Section 302 IPC and also the sentence passed against him. 86]. 87]. nt and order.
Decision
In the result, this appeal stands dismissed. Send down the LCRs to the learned court below with a copy of this judgme