High Court · 2012

The case of the prosecution commences with the lodging of the First Inf The prosecution’s case, as unfolded at the trial, may, in brief, be desc This appeal is directed against the judgment and order, dated 17.03.2008 , passed by the learned Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati, in Sessions Case No. 199(K)/2001, convicting the accused-appellants under Secti ons 302, 307 and 326 IPC, read with Section 34 IPC, and sentencing each of them to suffer, for their conviction under Section 302 IPC, read with Section 34 IPC, imprisonment for life with fine of Rs. 5,000/- and, in default of payment of fi ne, undergo rigorous imprisonment for another period of 6 (six) months, and to s uffer, for their conviction under Section 307 IPC, read with Section 34 IPC, rig orous imprisonment for 10 (ten) years with fine of Rs. 1,000/- and, in default t hereof, undergo rigorous imprisonment for 3 (three) months and further suffer, f or their conviction under Section 326 IPC, read with Section 34 IPC, rigorous im prisonment for 7 (seven) years and pay fine of Rs. 1,000/- and, in default of pa yment of fine, undergo rigorous imprisonment for a period of 3 (three) months, a ll the sentences having been directed to run concurrently. 2. ribed as under: 3. ormation Report (in short, ’FIR’), on 07.01.1995, by Inspector L. Ebopishek Singh, Officer-in-Charge, Lumphel Police Station, alleging to the e ffect, inter alia, that from reliable information, he had come to learn that on the very day, i.e., on 07.01.1995, at about 6-15 a.m., some suspected extremists had fired upon some CRPF personnel posted at the Regional Medical College Hospi tal (in short, ’RMC Hospital’) to guard some injured CRPF personnel, who had bee n lying under treatment at the said hospital, and that the firing by the extremi sts resulted into an encounter between the unknown extremists, on the one hand, and the CRPF personnel, on the other hand, the encounter having resulted into th e death of 7 (seven) civilians and many other sustained injuries. 4. Based on the above FIR, Lumphel P.S. Case No. 6(1)/95, under Section 121 /121-A/307/302/326 IPC, read with Section 25(1-B) of the Arms Act, Section 2(2) (I) (II) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, and Section 13 of the Unlawful Activities (Prevention) Act, 1967, was registered. D uring investigation of Lumphel P.S. Case No. 6(1)/95 aforementioned, another cas e came to be registered, at the said police station, as Lumphel P.S. Case No. 76 (4)/95, the latter case having been registered on the basis of a General Diary E ntry, dated 15.04.1995, made by the Officer-in-Charge, Lumphel Police Station, s tating, inter alia, that an application had been received from the Superintenden t of Police, Lumphel, for registering a case against some CRPF personnel, the ap plication having been made by Sub-Inspector of Police, S. Z. Vinson TKL, Lumphel Police Station, to the effect that the investigation into the case No. 6(1)/95 aforementioned had come to an end and no material had been forthcoming to establ ish the identity of the persons, who had fired upon the CRPF personnel, but ther e were materials to establish that the incident of encounter took place on 07.01 .1995, at about 7-15 a.m., and, thereafter, the CRPF personnel deliberately fire d upon innocent civilians inside and outside the campus of the said RMC hospital , killing as many as 9 (nine) people, namely, 1. Wangkham Opendra Singh, 2. Laim ayum Pradeep Sharma, 3. Momi Riba, 4. Saikhem Prem Chand Singh, 5. Anganu Devend ra Singh @ Tomba Singh, 6. Toijum Rajendra Singh, 7. Md. Zakir, 8. R. K. Khogen Singh, and 9. Hijuri Khogen Singh @ Boi Singh, and seriously inuring another per son, namely Nongthambau Sarat Singh. Based on the said General Diary Entry, mad e on 15.04.1995, as mentioned above, a separate case, being Lumphel Police Stati on Case No. 76(4)/96, under Section 302/326/34 IPC, was registered against CRPF personnel. 5. In course of time, a report, under Section 173(2)(i) CrPC, known as ’po lice report’, was submitted on completion of investigation into Lumphel P.S. Cas e No. 6(1)/95, which stood originally registered, the ’police report’ stating to the effect that no evidence had been found to identify the accused, who had all egedly attacked the CRPF personnel. This ’police report’, which is, ordinarily, called ’final report’, was submitted, on 22.04.1996, closing the original case, namely, Lumphel Police Station Case No. 6(1)/95. Thereafter, with the consent of the State Government, the Central Bureau of Investigation (in short, CBI’) to ok over the investigation of Lumphel Police Station case No. 76(4)/95 aforementi oned, which, we have already indicated hereinbefore, was based on the General Di ary Entry, made on 15.04.1995. On completion of investigation, a charge-sheet w as laid, on 29.11.1999, by the CBI seeking prosecution of the four present appel lants as the accused. 6. To the charges framed, at the trial, against the accused-appellants, u nder Sections 302, 307 and 326 IPC, read with Section 34 IPC, all the accused-ap pellants pleaded not guilty. 7. In support of their case, prosecution examined altogether 27 witnesses. The accused were, then, examined under Section 313 CrPC and, in their examinati ons aforementioned, while denying that they had committed the offences, which we re alleged to have been committed by them, the accused took the plea that they h ad been attacked by extremists and, in the said attack, some CRPF personnel, too , opened fire from their arms, which had been issued to them and which they were authorized to use, and that during the process, some persons were killed and se veral persons, including CRPF personnel, were injured. The defence also adduced evidence by examining two witnesses, including one CRPF person, who had been, a dmittedly, injured in the said occurrence. 8. Having, however, concluded that the accused, facing trial, were guilty of the charges framed against them, the learned trial Court convicted them accor dingly and passed sentences against them as mentioned above. Aggrieved by their conviction and the sentences passed against them, the four convicted persons hav e preferred this appeal.

9. We have heard Mr. S. Chamaria, learned counsel for the accused-appellant s, and Mr. A. C. Buragohain, learned Standing counsel, Central Bureau of Investi gation, appearing for the respondents. 10. While considering the present appeal, it needs to be pointed out, at the very outset, that the prosecution has not presented a definite and positive cas e against the present appellants. Though the prosecution started with the alleg ation of CRPF personnel having been attacked by extremists, the case ended by ac cusing the CRPF personnel of having intentionally and without sufficient cause, killed, attempted to kill and grievously injured several civilians as indicated above. Bearing this material aspect of the prosecution’s case in mind, we are, now, required to marshal the evidence on record to determine if the evidence, ad duced by the prosecution, are adequate to bring home the charges framed against the present appellants or against any one of them. 11. Considering the fact that there is no dispute that as many as 9 (nine) p ersons had been killed, whose names have been mentioned above, as a result of th e injuries sustained by them from the bullets fired from various arms, we do not go into the details of the injuries, which the civilians sustained, for, suffic e it is to point out, once again, that as many as 9 (nine) persons got, admitted ly, killed in the occurrence aforementioned and several persons, including CRPF personnel, were, admittedly, grievously injured. 12. The question, however, is: Whether in the face of the evidence on record the accused-appellants, or any one of them, could have been legally held guilty of the offences, which they stood charged with ?

13. The question, raised above, brings us to the evidence of PW4, who is an auto-rickshaw driver. His evidence is that, on 06.01.1995, he had been inside t he campus of the RMC Hospital for the whole night and, on 07.01.1995, early in t he morning, when he was present in front of the casualty department of the said hospital, he heard sound of bullets being fired, the sound coming from the direc tion of the gate of the hospital campus, where the public toilets stood situated , and, on hearing the sound of bullets being fired, when he was proceeding towar ds the shed, whereunder auto-rickshaws were parked, he found that all auto-ricks haws were rounded up by the CRPF personnel and the auto-rickshaw drivers were as ked by the CRPF personnel to raise their hands up and that while the CRPF person nel were coming out of the said hospital, some CRPF personnel were going inside the hospital from outside the hospital and they started firing. PW4 has, howeve r, clarified that he did not see if the CRPF personnel had killed someone or res orted to blank firing, but he deposed that as soon as he heard the firing, he li ed down on the ground, closed his eyes and, when the firing was over, he opened his eyes and saw some dead bodies lying around him, and that he saw injured R. K . Khagen Singh running towards the casualty ward, crying, (cid:28)save me, save me (cid:29), w hereupon he (PW4), too, started running after the said injured, but, ultimately, the said injured, who was one of the auto-rickshaw drivers, expired and, therea fter, he (PW4) left the place for his house leaving his auto-rickshaw at the ver y place of the occurrence. 14. While considering the above evidence of PW4, it needs to be noted that h e has not identified any person, including the present appellants, as the ones, who had opened fire and killed the civilians. In fact, no Test Identification Parade (in short, ’TIP’) was, admittedly, held to identify any of the alleged as sailants of the civilians. 15. Close on the heels of the evidence of PW4, PW6, who, too, was an auto-ri ckshaw driver, has deposed that, on 07.01.1995, at about 6-30 a.m., he parked hi s auto-rickshaw near the said hospital and, near his auto-rickshaw, one L. Kunja mani’s auto-rickshaw stood parked with one tyre of said L. Kunjamani’s auto-ric kshaw lying punctured and when he (PW6) was helping the said L. Kunjamani, he he ard sound of firing coming from near Sulabh Toilet of the said hospital and, the n, a CRPF person came towards them and, when they introduced themselves as auto- rickshaw drivers, the CRPF person left. PW6 has also deposed that, later on, a CRPF person, who was behind the wall, fired from a distance of about 6/7 metres and he (PW6) sustained two bullet injuries, one on his left shoulder and the oth er on his right hand, and, on receiving the bullet injuries, he became unconscio us and fell down and that he regained his senses in the RMC hospital and, later on, he was shifted to J. N. Hospital for treatment. 16. Even from the evidence of PW6, one can clearly notice that he did not re veal the identity of the person, who had allegedly fired from behind the wall, a s described by PW6. 17. When we turn to the evidence of PW11, namely, L. Kunjamani Meetai, we fi nd that, according to his evidence, he was an auto-rickshaw driver and, on 07.01 .1995, when he was repairing his auto-rickshaw, at the auto-rickshaw stand, near the said hospital, PW6 came to him and told him that he had heard gun-shots bei ng fired near the toilet area and, on being so informed, both of them, namely, P W6 and PW11, lied down on the ground and, thereafter, they heard a voice, saying (cid:28)Bhag gaya Sala, Sab Manipuri Ko Mar Dalo (cid:29) ( &. Have fled away, kill all Manipu ris). 18. What is, now, important to note, while considering the evidence of PW11, is that, according to him, thereafter, four CRPF personnel came out with guns n ear the gate and, at that time, there were three civilians near the wall, kneeli ng down, and the CRPF personnel started firing on those three civilians and thou gh the said three civilians raised their hands to save themselves, they were sti ll fired at and, then, the CRPF personnel fired towards the right side of one ri ckshaw driver though there were three rickshaw drivers and the remaining two ric kshaw drivers remained silent and, thereafter, one CRPF person came to them (PW1 1 and PW6) and, when he (PW11) showed the CRPF person his (PW11’s) auto-rickshaw licence, the CRPF person left, whereupon two CRPF personnel came towards them a nd started firing towards them. However, he (PW11) escaped and fled away, but h e, later on, came to know that Sarat (PW6) received a bullet injury. 19. In his cross-examination, PW11 has clarified that he had not seen the pe rson, who had shouted, saying (cid:28)Bhag gaya Sala, Sab Manipuri Ka Mar Dalo (cid:29). In fact, PW11 has conceded, in his cross-examination, that he left the place of occ urrence, while the firing was still continuing. It is worth pointing out, once again, that even PW11 has not identified any person, or any of the appellants, a s the CRPF personnel, who had opened fire. 20. When we turn to the evidence of PW13, who is an auto-rickshaw driver, we find that, according to his evidence, on 07.09.1995, at about 6-00 a.m., he was at the auto-rickshaw parking near the RMC Hospital and, upon taking tea, along with two others, namely, Khogen and Devendra, when they all came back to their a uto-rickshaws, they heard sound of bullets being fired and when they proceeded t owards the casualty ward of the said hospital, they saw some CRPF personnel taki ng out six auto-rickshaw drivers from the auto-rickshaws, the said auto-rickshaw drivers showed their licence to those CRPF personnel, but all the six auto-rick shaw drivers were shot at by the CRPF personnel, the auto-rickshaw drivers being Devendra, Rajendra, Premchand, R. K. Khagen, Khagen and Upendra and that R. K. Khagen (one of the six auto-rickshaw drivers) shouted for help and he (PW13) too k him to the casualty dressing room, that R. K. Khagen told him (PW13) that CRPF men had fired at them and that, later on, R. K. Khagen succumbed to his injurie s. 21. While considering the evidence of PW13, we notice that even if the evide nce of PW13 is accepted as true, his evidence does not show as to who had opened fire and killed the auto-rickshaw drivers.

22. We my pause here, for a moment, and take note of the evidence of PW12, w hose evidence is that, on 07.01.1995, in the morning, when he was working as a c are taker of Sulabh Toilet, he heard bullets being fired and he saw three youths having small fire-arms firing at the CRPF personnel and fleeing away, whereupon the CRPF personnel came out and shouted that their men (CRPF personnel) were be ing killed and, hence, kill all Manipuris and, thereafter, the CRPF personnel st arted firing, whereupon PW12 closed the gate of the toilet from inside and saw, through the gate, that two CRPF personnel came towards the toilet from backside and asked him to open the gate since there was CRPF man inside, PW12 opened the gate and the CRPF man went away and, thereafter, three persons came towards old gate of the hospital, one of whom was non-Manipuri and the other was from Arunac hal Pradesh, both of them were shot down by the CRPF personnel. It is also in t he evidence of PW12 that the CRPF personnel went out and he (PW12) saw one ricks haw puller being fired at. 23. In his cross-examination, PW12 has clarified that the three youths enter ed into the hospital and started firing first. We clearly see that the evidence of PW12 also do not advance the prosecution’s case against the present appellan ts in proving that any of the present appellants had shot down the civilians in the manner as described by PW4, PW6, PW11, PW12 and PW13, for, identity of the p ersons, who allegedly shot the civilians, is not proved even by the evidence of PW12. 24. With the above limitation, which the case of the prosecution suffers fro m, we turn, first, to the evidence of PW25, namely, Umashankar, who is a CRPF pe rson, and at the relevant point of time, he was, admittedly, attached to 119 CRP F Battalion and was posted at Imphal, Manipur. The evidence of PW 25 is that, o n 07.01.1995, he was posted at RMC Hospital, Imphal, and they were guarding some injured CRPF personnel, at the said hospital, that he had been issued one Self Loading Rifle (in short, ’SLR’) and ammunitions and that he was in the surgical ward of the hospital. It is the evidence of PW25 that on the day of the occurre nce, he was on duty along with Ramdayal Shah, S. K. Pandy and V. H. Yusuf, and, at around 6-45 a.m., Ramdayal Shah, S. K. Pandy and V. H. Yusuf came to their wa rd and asked him to accompany them to answer nature’s call, if required, whereup on he (PW25), along with the said three persons, went to the toilet meant for po lice personnel, but they were not allowed to use the toilet of the police person nel and they were directed to go to the Sulabh Toilet, whereupon all of them wen t to the Sulabh Toilet in the hospital complex and while S. K. Pandey went into the toilet, he (PW25), Ramdayal Shah and Yusuf (PW25) remained outside the toile t guarding the toilet. It is also the evidence of PW25 that all of them were in uniform and had arms and that PW25 also noticed a lady washing cloths near the water tank and, during that very moment, three young boys came there, the lady s poke to the boys and, then, the lady went away and, thereafter, the said three y oung boys fired gunshots towards them (PW25 and his companions) and thereby V.H. Yusuf was hurt and, on being so hurt, V. H. Yusuf fired 3/4 rounds from his SLR and that Ramdayal Shah also fired some rounds. PW25 has also deposed that he d id not fire as he did not see the extremists and that during that period, S. K. Pandey came out of the toilet and he, too, started firing. It is in the evidenc e of PW25 that the firing continued for about ten minutes and, then, stopped, wh ereupon injured Yusuf was carried to the Emergency Ward of the said hospital and , sometime thereafter, their Second Command, K. R. Brahma, reached the hospital and checked their arms and ammunitions. PW25 has further deposed that they, th en, took the injured to J.N. Hospital, but they had come out of the J. N. Hospit al as the J. N. hospital authority refused to admit the injured CRPF personnel a nd, hence, they took the injured CRPF personnel to Langing Group Centre for thei r treatment. 25. In his cross-examination, PW25 has clarified that, on 07.01.1995, they were on guard duty at the RMC Hospital, because a few days before the day of the occ urrence, DSP, P.N. Singh, along with other stuff, had been attacked by extremist s, who were wearing army uniform, and in the said attack, three CRPF personnel, including the said DSP and two constables, died and three other constables were injured and that the injured were taken to RMC Hospital, where they were under m edical treatment. PW25 has also deposed that, on 07.01.1995, the boys, who had fired at the CRPF personnel, were also wearing army uniform and, having fired at them, the boys started running towards the auto-rickshaw stand near the RMC gat e, that the boys continued their firing even while fleeing away. PW25 has clari fied that they (PW25 and his companions) carried their arms and ammunitions to t he toilet, because the atmosphere was volatile and firing could take place anyti me anywhere and that they always carried their arms for their safety and self-de fence. PW25 has also deposed that the local Manipur Police personnel did not co -operate with the CRPF personnel and they also did not allow the CRPF personnel to use their toilets. 26. While considering the evidence of PW25, we notice that it has been speci fically stated by PW25, in his cross-examination, that, on 07.01.1995, the extre mists started firing first and, thereafter, the CRPF personnel fired back at the extremists in their own self-defence, particularly, when one of the CRPF person nel, namely, Yousuf, was shot at and injured by the extremists. 27. Coning to the evidence of PW7, who is also a CRPF person, we find that i n his evidence, PW7 has deposed that, on 07.01.1995, when he was on duty at RMC Hospital at Imphal, his Guard Commander, Md. Razak, Ashok Kumar, Kishan Lal Ramh anan Prasad were with him on duty. On 07.01.1995, at around 7-15 a.m., when he (PW7) was returning from toilet with Kishanlal and Salim Khan, there was firing, at RMC Hospital complex, near the toilet area and, on hearing the sound of the firing, Ashok Kumar and Md. Rajak went outside, but he (PW7) remained with the p atient and, thereafter, Ashok and Razak came there with their arms and when thei r officer checked their arms, it was revealed that some bullets had been fired b y Razak in the cross-firing and, later on, he (PW7) came to know that Yusuf had sustained bullet injuries and that after 45 minutes of the incident, police arri ved at the spot. 28. We notice that the evidence of PW7 substantially corroborates the eviden ce of PW25 and clearly indicates that the extremists had opened fire on the CRPF personnel, injured one of them, namely, Yousuf and, in order to save their own lives, the CRPF personnel had resorted to fire. 29. To the same effect is the evidence of PW8, who, too, is a CRPF person. In his evidence, PW8 has deposed that, on 07.01.1995, at about 7-15 a.m., when h e was on duty at RMC Hospital, Kishan, Salim and Ramjanan, the then Commander, M d. Razak (Guard), were also on duty to guard some injured CRPF personnel, who ha d been admitted into the hospital for treatment, and that Salim and Kishanlal we nt out for toilet and, on return, they reported that some firing had taken place and, then, he (PW8) alongwith Razak went out and when they went out of the hosp ital, bullets started being fired towards them, whereupon Md. Razak fired some r ounds, but he (PW8) did not fire any round, that when Razak was firing, he (PW8) was just behind Razak, and that at the time of firing, they were in lying posit ion and he could not see the person firing at them. PW8 has also deposed that i n the said firing, one of the CRPF personnel, namely, Yusuf Khan, received bulle t injuries and that the firing continued for about 10 to 15 minutes and that, la ter on, when their arms and ammunitions were checked, it was found that 9 (nine) rounds had been fired by Md. Razak from his SLR. In his cross-examination, it has been clarified by PW8 that Razak had fi 30. red towards the place from where bullets were being fired towards them. The evi dence of PW8 completely rules out the possibility of civilians having been kille d by Razak, or any of the present appellants, deliberately and without any excus e. While considering the evidence of PW9, we find that the evidence of PW9 31. has a bearing on the evidence of the witnesses, particularly, the evidence of th e CRPF personnel inasmuch as this witness, who is also a CRPF personnel, was pos ted, at the relevant point of time, at 119 Battalion of the CRPF and his duty wa s to issue arms and ammunitions to the CRPF personnel and to maintain record the reof. On examining the evidence of PW9, we find that this witness’ evidence cor roborates the evidence of PW7, PW8 and PW25, for, in his evidence, PW9 has depos ed that at the relevant point of time, he was posted in 119th CRPF Battalion, at Langing Group Centre, Imphal and that his duty was to issue arms and ammunition to the CRPF jawans and to maintain record in the Arms & Issue Register. PW9 ha s proved the said Issue Register of arms as Ext. 29. PW9 has further deposed th at, on 07.01.1995, S. K. Pandey, V. H. Yusuf, Uma Shankar Ram, and Ramdayal Sah were issued an SLR each, the numbers of their arms having body Nos. 8253, 8993, 8394 and 4739 respectively. It is in the evidence of PW9 that, on 07.01.1995, w hile coming back from duty, Ramdayal Sah returned 50 live cartridges and 10 (ten ) empty cases, S. K. Pandey returned 30 live cartridges and 27 fired empty cases , while Uma Sankar returned 60 live cartridges and V.H. Yusuf returned 56 live c artridges and 4 empty cases and that one Puttulal, who had also been issued an S LR (body No. 8579), returned 58 live cartridges and 2 fired empty cases. 32. What thus, crystallizes from the above discussion is that the prosecutio n did not have a consistent case to present before the learned trial Court and, even if they have an inconsistent case, the fact of the matter remains that it i s the admitted position that the CRPF personnel were fired at by extremists and, in order to save themselves and their associates, that the CRPF personnel had r esorted to firing. We may pause here to point out that even if the evidence of PW4, PW6, PW 33. 11, PW12 and PW13 are treated as true, one cannot ignore the fact that bullets h aving been, admittedly, fired at the CRPF personnel, including the present appel lants, it cannot be said that they had, deliberately and without any lawful excu se, had opened fire from their respective arms. The bullets, which had been fir ed at and sustained by the persons, who died or injured, were not sent to Forens ic Laboratory for examination and, therefore, it has not been established as to whose bullet(s) had caused whose death. Similarly, though PW 4, PW6, PW11, PW12 and PW13 have been examined as eye-witnesses to the killing of the civilians wi thout any lawful cause by the CRPF personnel, no TIP was held and, hence, it cou ld not be ascertained that the present appellants were the ones, who had opened fire and killed the auto-rickshaw drivers. In the backdrop of the fact that the prosecution failed to prove its cas 34. e convincingly and beyond doubt, as indicated above, that the present appellants , or any of them, had, without any lawful excuse and intentionally, killed the a uto-rickshaw drivers, when we turn to the evidence of the defence witness, i.e., DW2, we notice that, according to his evidence, on 07.01.1995, he, alongwith Co mmander Ramdayal Sah, Puttu Lal and S. K. Pandy, was at RMC Hospital, on guard d uty, because some of their fellow constables had been injured and were admitted there for treatment. PW2 has also deposed that though, generally, they used the toilet of the police personnel in the hospital, but, on 07.01.1995, in the morn ing, the local Manipur Police personnel objected in using their toilet and, that is why, they had to go the ’Sulabh Pay Toilet’, that Pandey entered into the to ilet and the three of them stood as guard outside the toilet. At that time, one woman was washing clothes and another person was warming himself with fire, tha t after some time, one person came there and talked to the woman and the man in their local language and, thereafter, both the lady and the person left the plac e and that, immediately, thereafter, 4/5 persons, having Manipuri Shawl on their body, and wearing army dress and carrying pistol and AK-47 rifles, came there a nd before they (DW2 and his companions) could react, those persons fired indiscr iminately on DW2 and his companions as a result of which DW2 received three bull et injuries on his body, one on the right side of his abdomen, on his chest and another on his cheek, below the eye. It is the categorical evidence of DW2 that in such circumstances, for their self-defence, he (DW2) and his companions open ed fire at the extremists and, in the meantime, hearing the sound of firing, oth er colleagues of DW2 came out of the hospital and joined them in firing at the e xtremists, that the extremists had to run away through the main gate of the hosp ital campus, where the auto-rickshaw stand was situated, and that at the time of fleeing away, the extremists kept firing indiscriminately at whoever came on th eir way. DW2 has further deposed that he fired two rounds of bullets from his a llotted SLR and that after having been hit by the bullet on his cheek, he became unconscious and he was admitted in the same hospital and, thereafter, he was sh ifted to CRPF Group Centre Hospital at Langing. 35. Though DW2 was cross-examined by the prosecution, his evidence, given in the cross-examination, went unchallenged, wherein he clearly deposed, as can be clearly seen, that he was hit, first, by the bullet on the right side of his ab domen and, then, on his chest and it was, then, that he fired at the extremists and, thereafter, he received a bullet injury on his cheek, below the eye, and, t hen, he became unconscious. DW2 has also deposed, in his cross-examination, tha t all the three bullets passed through his body. 36. The entire evidence of PW2 has remained unchallenged by the prosecution. We see, therefore, no reason to discard his evidence or not to place reliance on his evidence, which has, otherwise, remained unshaken or unscathed and his ev idence, thus, makes it more than abundantly clear that the CRPF personnel were u nder attack by the extremists and, if we may reiterate, that it was to save them selves from the bullets, which were being fired at them by the alleged extremist s, that the CRPF personnel resorted to firing. Even if, thus, what PW4, PW6, PW 11, PW12 and PW13 deposed were true, the fact of the matter remains, as we have already indicated above, that their evidence, coupled with the other materials o n record, cannot be said to be sufficient and clinching, as against the present appellants’, proving them, beyond reasonable doubts, as the assailants of the ci vilians, who died or sustained bullet injuries. 37. Therefore, the conclusion of guilt, which the learned trial Court has re ached, suffers from serious infirmities inasmuch as the learned trial Court had not taken into account the fact that the question, which ought to have been cons idered for determination, was not as to whether the CRPF personnel had or had n ot fired, but the question was as to whether the firing was resorted to by the C RPF personnel without any lawful excuse and as to who was/who were the person(s) , who had killed the auto-rickshaw drivers and injured others. On both counts, the learned trial Court has not cogently and minutely marshaled the evidence on record. We, therefore, find it impossible to sustain the conviction of the accu sed-appellants and the sentences passed against them in consequence of their con viction. 38. In the result and for the reasons discussed above, this appeal succeeds . The impugned judgment and order shall accordingly stand set aside. All the a ccused-appellants are hereby held not guilty of the charges, framed against them , and they are hereby acquitted of the same. 39. equired to be detained in connection with any other case. Let the accused-appellants be set at liberty forthwith unless they are r With the above observations and directions, this criminal appeal stands