High Court
Case Details
Crl.A. 73/2008 BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL AND THE HON’BLE MR JUSTICE P. K. SAIKIA (B.D. AGARWAL, J.)
Legal Reasoning
The case relates to brutal killing of a former minister of Assam , Late Nagen Neog and as many as 9 (nine) persons, including body guards and sta ff. The incident took place on 06.05.1996, at about 07:30 pm on a public road at Village Singijan, in the district of Golaghat. At the relevant time, the minist er was returning home after participating in the election. Thereafter, his convo y was ambushed by the terrorists with sophisticated fire arms. The ambush was so dedicated, severe and pre-planned that not a single person of the convoy could survive. The police officer in-charge of Farkating Outpost heard the sound of fi re. Immediately, he rushed to the place of occurrence only to find that the form er minister and his companions were gunned down by the militants. Accordingly, h e lodged a written FIR at the Police Station, whereupon, a case of murder with c onspiracy was registered. 2. Initially, the case was investigated by the Assam police officer s. Subsequently, it was handed over to the CBI. After long investigation, the ch arge sheet was submitted on 24.10.2002 against 3 (three) accused persons, includ ing the appellant. Out of the remaining two accused persons, one accused, namely , Pranjal Saikia, had already died and the third accused, Ananta Saikia, was sho wn absconder in the charge sheet. In this way, only the appellant was tried for the offence of murder and other offences. 3. After full length trial, the accused has been convicted under Se ctions 302/120 (B) and 392 of the Indian Penal Code, 1860, (hereinafter, in shor t, ’IPC’) read with Section 27 (3) of the Arms Act as well as under Section 13 ( 1) of the Unlawful Activities (Prevention) Act and different sentences have been awarded to the appellant. The maximum sentence is that of Life Imprisonment for the offence of murder and under the Arms Act. Only 3 (three) years’ RI has been imposed for the offence under the UA (P) Act. Being aggrieved with the convicti on and sentence, the sole accused has preferred this appeal
Legal Reasoning
4. We have heard Sri N J Das, learned counsel appearing on behalf o f the appellant as well as Sri P N Choudhury, learned Standing Counsel, appearin g on behalf of the Central Bureau of Investigation (CBI). We have also gone thro ugh the impugned Judgment, charge sheet and the oral evidence of the witnesses p roffered in the trial Court by the CBI. 5. Only 14 (fourteen) witnesses were examined by the CBI to establi sh the aforesaid offence. Out of them, PWs-2 and 5 are the autopsy doctors; PW-7 is a witness from the FSL to prove his ballistic report; PW-9 is the MVI; PWs-3 , 4, 12 and 14 are the police officers, who had lodged the FIR and taken part in the investigation and PWs-1, 6, 8, 10, 11 and 13 are non-official witness. 6. PW-1 is a retired teacher. He is also the father of PW-11 and fa ther-in-law of PW-10. His son-in-law, i.e., PW-10 was a police constable and, at the relevant time, he was attached to the deceased minister as a security guard . According to PW-1, the accused was known to him and two days prior to the inci dent the accused came to his house and reported that the life of the minister wa s under threat. By saying so, the accused also advised PW-1 to withdraw his son- in-law from the escort duty. The advice of the accused was followed and PW-10 wa s withdrawn from the duty. PW-1 has clarified that the information of the threat to the minister was given to his wife and not to him directly. In the cross-exa mination, PW-1 has deposed that his wife did not tell him about any such informa tion from the accused. Besides this, the wife of PW-1 was not examined by the pr osecution. In this way, the testimony of PW-1 remained uncorroborated. PWs-10 and 11 have corroborated their father/father-in-law with 7. regard to withdrawal of PW-10 from the escort duty on the plea of illness of PW- 11. These two witnesses are totally silent to give any incriminating evidence ag ainst the appellant. 8. PW-6 is a distantly related uncle of the accused and he has been declared hostile. In the cross-examination, the prosecution tried to elicit tha t the accused had kept concealed some arms and ammunitions in a box in his house . However, there is no evidence regarding any recovery of arms and ammunitions f rom the house of PW-6. In this way, the statement of PW-6 before the Investigati ng Officer is also of no consequence. 9. PW-8 has spoken about hearing of a bomb blast and the death of a minister. Beyond this, she has stated nothing as to who had perpetrated the cri me, far less, about the involvement of the appellant in the ambush. PW-13 also a ppears to have given hearsay evidence that the accused was a militant. His testi mony is not supported by any other evidence. 10. During the arguments, Sri Choudhury, learned Standing Counsel fo r the CBI submitted that in the ’sanction order’, it has been clearly mentioned that the accused was an active member of the militant organization (ULFA). The l earned counsel also referred to the deposition of the Investigating Officer (PW- 14), wherein, the police officer has stated that one Nayan Saikia had disclosed that the appellant, who was also known as Amar Singh @ Tutu had stored excess am munitions and other war equipments in the house of PW-6. We have already recorde d earlier that no ammunition or fire arms were recovered from the house of PW-6. Besides this, Nayan Saikia was neither cited as a witness in the charge sheet n or examined by the prosecution in the trial Court. Even otherwise, any version g iven before the police officer is not a legally admissible evidence. 11. What crystallizes from the aforesaid discussions is that the pro secution failed to adduce any legal evidence in the trial Court to convict him i n any of the offences. It is also not on the record whether any evidence was als o collected from the accused at the time of arrest to show that he was actively engaged in militant activities of the ULFA nor any arms and ammunitions were rec overed from his possession.
Decision
12. For the foregoing reasons, we set aside the impugned judgment. I n the result, the appeal stands allowed. The appellant is set at liberty forthwi th unless wanted in any other case. The Registry is directed to issue release or der(s) accordingly. The learned Standing Counsel for the CBI prayed for suspension o 13. f the operation of this judgment for a period of 30 (thirty) days to enable the CBI to file appeal before the Hon’ble Supreme Court. The prayer is allowed. 14. from the Registry only after 30 (thirty) days. In view of this direction, the release order(s) shall be issued