High Court · 2012

and ordered investigation. 7. During the course of investigation, the investigating officer Sri. Mon M ohan Deka visited the P.O., examined witnesses, seized the rifle which was alle gedly used in shooting Sri. Danswarang Basumatary and sent the same to the exper t for their opinion, did other needful and on completion, of the investigation, he submitted charge U/s 307/326 IPC against the accused person and forwarded hi m to the court to face his trial. 8. The Magistrate before whom the charge sheet was so laid committed the ca se to the Court of Sessions since the offence U/s 307 IPC is exclusively triable by Court of Sessions . Learned Sessions Judge on the receipt of the case on com mitment, transferred the case to the file of Additional Sessions Judge Kokrajhar for disposal. On the receipt of the case on transfer and after hearing the part ies and on going through materials on record, learned Additional Sessions Judge framed charge U/s 326/307 I.P.C against the accused person.

9. Charges, so framed, on being read over and explained to the accused pers on, he pleaded not guilty and claimed to be tried. During the course of trial, the prosecution side had examined five (5) witnesses including the I.O. After c losure of the prosecution evidence, the statement of the accused person was reco rded U/s 313 Cr.P.C. His plea was of total denial. 10. On being required, the accused, however, declined to adduce any evidence of his own. On the conclusion of trial and on hearing the argument , advanced by the learned counsel of the parties, the learned Court below convicted the ac cused person of offence U/s 324/307 IPC and sentenced him to punishment as afo resaid. It is that judgment which has been assailed in this appeal.

11. Opening up the arguments on behalf of the accused/ appellant, learned co unsel for the accused/ appellant assailed the judgment of the learned Trial Cour t on counts more than one. They are: i) Doctors who attended the victim at different ho spital was not examined and that too without assigning any reason, what so ever , ii) Ballistic expert was not examined, although it was alleged that victim sustained injuries on his person caused by fire arm. No explanation was tendered as to why ballistic expert or his report was not produced before th e Court during trial, iii) The gun allegedly used in committing the crime was also not produced before the Court anytime during the trial. iv) The informant who is an eye witness of the incident became a witness as well as the investigator of the case under consideration. v) the prosecution witnesses did not support one another on v ery many fundamental points thereby making their evidence highly unreliable 12. All these serious infirmities were ignored by learned trial Court and came to the conclusion that prosecution has successfully proved the charge U/s 324/3 07 IPC against the accused person and thereafter convicted him and punished him as aforesaid. According to the learned counsel for the appellant such a judgmen t is unsustainable in law and as such, the accused needs to be acquitted of offe nces aforesaid on setting aside the judgment impugned in this appeal 13. In that connection, the learned counsel for the accused person has drawn my attention to the decision of Hon’ble Supreme Court of India in the case of M egha Singh Vs State of Haryana (1996) 11 SCC 709 as well as decision of this Cou rt in the case of Puspa Jamatia Vs. State of Tripura: 2011 (4) GLT-669. 14. The learned counsel for the appellant alternatively argued that even if the accused is found to be the person responsible for the firing at the victim which ultimately injured him, there is enormous evidence to show that victim a ttacked the accused quite brutally for which he had to injure the victim in exer cising his right of private defence. Being so, he cannot be held responsible for committing any offence what so ever. Controverting the above arguments advanced from the side of accused/ app 15. ellant, learned Additional Public Prosecutor has contended that materials on rec ord unmistakably demonstrate that accused was the person responsible for firing gun shot at the victim on his chest at te place of occurrence on the afternoon in question and he did so with the intention of killing him. The evidence on re cord makes such position more than clear. In view of the above, learned Addition al Public Prosecutor has urged this Court to dismiss the appeal on affirming th e judgment of the Trial Court. 16. I have given my anxious consideration to the arguments, advanced by the learned counsel of the respective parties, keeping in view materials on records . But before I could proceed further, I find it necessary to have a brief revie w of evidence on record and for this purpose the evidence of PW 1 is taken up fo r consideration. The victim, Sri. Danswarang Basumatary, Constable No. 65 was examined a 17. s PW 1. According to him, on 04.06.1998, at about 3:35 P.M. he went to APTF Batt alion camp at Bengtal to meet one of his friends and also to bring some vegetab le there from. On arriving at the aforesaid camp, he found Sukur Ali sitting on his bed in his room wielding a SLR. 18. When PW 1 entered the Barrack, accused Sukur Ali shot at him with his SLR which hit him on his chest. Being so shot, he got injured for which he beca me immobilised. However he somehow came out of aforesaid Barrack but before he c ould reach his camp, fell down and collapsed at such place. He was then taken to Bengtal hospital where from he was shifted to GMC Hospital where he remained u nder treatment for about a month. 19. He has further stated that he did not know why the accused shot him on that day when he entered his Barrack. In his cross examination, he had stated th at his Barrack is situated at a distance of 50 cubit. from the camp of the accus ed and that accused was alone in the Barrack at the time under consideration, th at he became unconscious after being fired and that he got back his senses at G uwahati Medical College only 20. PW 2 Sri. Deben Ranghan is also Constable of A.P.T.F. According to him, on 04.06.1998, he was serving as A.P.T.F Constable and was posted at Bengtal. D uring that time, accused Sukur Ali was posted at A.P.T.F. camp Bengtal. On that day, he was on sentry duty. In his evidence, he has further stated that at abou t 3:30 PM, on thta day, he heard hue and cry at the Barrack where accused reside d during such time. 21. He therefore, proceeded to such place. In the mean time, he heard firing from gun and also saw the victim coming out of the aforesaid Barrack and also s aw him falling down on the ground at a place not far from him. He was in an inj ured condition and was, therefore, immediately taken to hospital for treatment. In his cross examination, he admitted that on that day, he was on sentry duty a t a place near to the Barrack of the accused person.

22. PW 3 Sri. Rati Ram Sharmais also a A.P.T.F. constable. He is found sayi ng that at the time of the incident, he was posted at Bengtal camp. On that even tful day in the afternoon, a quarrel broke out between Sukur Ali and Sri. Danswa rang Basumatary. He and other persons intervened the quarrel and separated the p arties. Sometime thereafter, he heard the sound of firing from a gun and as such , he rushed to the Barrack, saw Danswarang Basumatary coming out of the Barrack of the accused person. He also saw him in an injured condition.

23. When he enquired Sri. D answarang Basumatary, he was told that Sukur Ali fired him by his SLR. Injured D answarang Basumatary was taken to hospital. In the mean time, the accused was ap prehended and his rifle was also seized. He also admits that he did not witness the incident under consideration.

24. PW 4 Sri. Gajen Basuamtary is also a Constable. According to him, at the relevant time, the injured and the accused were posted at Bengtal. On the fatef ul afternoon, he was on sentry duty. At about 3 P.M. Danswarang Basumatary came to A.P.T.F. camp in a drunken condition but he was removed there-from by the po lice personal present there. 25. A little later, he again came to A.P.T.F. Barrack and made forceful entr y thereto despite he being objected to by PW 4 as well as some other police off icials. Moments later, Sukur Ali fired at Danswarang Basumatary hitting him on his body while the victim was still inside the Barrack of the accused person. T he bullet, so fired, hit the victim on his chest for which he fell down on the ground. The victim was thereafter taken to hospital for treatment. 26. The local hospital at Bengtal advised the injured to be taken to G..M.C & H. Accordingly, he was taken to G..M.C & H where he spent about 20-25 days. In his cross examination, he has stated that at the time under consideration, Dans warang Basumatary was in a drunken condition and that he came to the Barrack whe re accused Sukur Ali was accommodated. He also admitted that he did not witness Sukur Ali firing at the victim Danswarang Basumatary. the accused person. 28.

27. This brings us to the Testimonies of PW 5 Sri. Mon Mohan Deka, S.I. of P olice. According to him, on 04.06.1998, he was serving as incharge Bengtal Out P ost. At about 3:35 P.M. victim Danswarang Basumatary, a Constable of the O.P. ca me to the Barrack where the accused Sukur Ali resided at that time. He came ther e in a drunken condition. Sukur Ali was reading some religious book inside his B arrack. On arriving at the Barrack of accused person, the victim started beating Being so beaten, Sukur Ali raised hue and cry fo r which police personal came there and took the victim out of the Barrack of the accused person. In the mean time, Sukur Ali being annoyed at the conduct of vic tim, left his place and took shelter in some area. Once the victim left the Barr ack of the accused person, Sukur Ali returned to his room and took rest by sleep ing on his bed. 29. Soon thereafter, victim came to the place of occurrence and entered the Barrack of the accused person without paying any heed to police personal present there who advised the victim not to enter the Barrack of accused person. On ent ering the Barrack of accused person, the victim started beating the accused per son. Moments later he also heard a gun shot and saw the victim coming out of the Barrack of the accused person being injured.

30. Hearing all these, he with the help of other police officials present t here, removed Sri. Danswarang Basumatary the hospital for treatment. Meanwhile h e lodged an F.I.R which was proved as Ext. 2. He also seized the rifle and sent the same to the expert for his examination of the same and for his opinion the reon. The report of the expert was proved as Ext. 3. 31. In his cross examination, he had admitted that the gun used in the firin g was an automatic rifle and it can fire as many as twenty rounds of ammunitions at one go. It is also in his evidence that the accused was creating disturbance at the place of occurrence since before the alleged incident and that he was in heavily drunken condition at that time. He also admits that Sukur Ali never tak es alcohol. 32. Above being the evidence on record, let us see how far such evidence mak es out the charge labelled against the accused person. On a very careful perusal of evidence on record, I have found that the evidence of PW’s, particularly PW 1 and PW 5 clearly demonstrates that on the fateful afternoon, the victim Dans warang Basumatary went to the Barrack where accused was accommodated during the time under consideration and that he got injured in the Barrack of the accuse d person. 33. There evidence further shows that PW , the victim, sustained wounds on his person for which he was immediately shifted to Bengtal PHC where from he was required to be shifted to G.M.C&H for treatment where he was treated for a pret ty long period . The evidence, so rendered by PWs remains nearly unchanged. 34. Above being the position I have no difficulties in coming to the conclus ion that victim sustained wounds at the Barrack at which accused resides on the day in question and that remained in hospital for a pretty long period. Up to this extent, the prosecution case finds support from the FIR which was proved as Ext. 2.

35. Here, it is worth noting that as pointed out be defence, the prosecution did not examine the doctors who reportedly attended the victim at different hos pitals. Nor it examined the expert who reportedly examined the fire arm in ques tion. Equally importantly, the prosecution did not produce the aforesaid fire ar ms. What is worse, it also did not assigned any reason as to why those impo 36. rtant witnesses or important articles were not produced before the Court during trial. Be that as it may, on the evidence on record it can easily be held that t he victim sustained wounds at the Barrack of accused person on the afternoon afo resaid and he sustained at least injury of simple nature. On a reading of entire evidence on record in its entirety, it would appe 37. ar clear that the person who inflicted those wounds on the victim was none othe r than accused Sukur Ali. The fact that there was a quarrel between the accused and the victim moments before the incident in question, the fact that the vict im was seen running out of Barrack of the accused person with injury on his pers on coupled with fact that there is absolutely nothing on record to show that an y person other than the accused had any role in inflicting such wounds on the vi ctim make such a conclusion inevitable. 38. Now, the question is why the accused inflicted the wounds on the victim on the afternoon of 04.06.1998. The answer is not far to find There is indispu table evidence on record to show that the victim came to the Barrack of the accused person and started quarrelling with him without there being any rhyme or reason. What is important to note is that he even assaulted the accused requiri ng his colleague to intervene the dispute. 39. There evidence on record further reveals that being pestered, being as saulted, the accused felt so disturbed that he even left his own room in order to avoid being tortured by victim. However, when he found the victim left his Barrack, he came to his room and slept on his bed. Not being satisfied with the torture which he perpetuated on the accused person, the victim once again came t o the room of the accused person in drunken condition and started beating him 40. The quarrel between the accused and the victim was so severe that it cau ght the notice of the police personal who were on duty in the vicinity of the Ba rrack where such incident took place. This clearly shows that accused must have exercised his right of private defence to save himself from the assault of vict im in order to avoid being injured on being beaten by the victim. 41. We have already found that learned Trial Court held that accused committ ed the offence U/s 324 IPC as well. But in my considered opinion, in the fact an d circumstance of the present case the accused could have exercised his right of private defence even to the extent of causing grievous hurt to the victim.

42. However, he have already found that accused inflicted simple wound on th e victim and as such, his action in inflicting such wound on the victim clearly come within the purview of Section105 IPC which prevent his action aforesaid fr om becoming an offence. Being so in my considered opinion, the accused did not c ommit any offence whatsoever in attacking and injuring the victim at his Barrack on the all eventful afternoon.

43. We have already found that prosecution case has been assailed on several c ounts. But in the face of above revelations, I have found that any further discu ssion on those allegations become redundant. 44. In view of what I have discussed herein before and what have emerged the refore, I am of the opinion that the decision of the learned Trial Court holdi ng the guilty U/s 307/ 324 IPC is clearly unsustainable in law. Consequently, I have no hesitation in holding the judgment of the learned Trial Court is liabl e to be set aside on acquitting the accused of the offences, he was charge wit h. 45. In the result, the appeal is allowed and accused is acquitted of offenc e U/s 307/324 IPC on setting aside the judgment of the Trial Court, impugned i n this appeal. 46. Return the LCR.