THOMBOR SHADAP Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) The Appellant, who is an Accused person in Sessions Case No.50 of 2021 on the file of the Sessions Judge/Addl.DC(J), East Jaintia Hills District, Khliehriat, was convicted by the Trial Court on 30/3/2023 for offence under Sec. 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.10,000.00. The Trial Court had given liberty to the family of the deceased to claim compensation from the State and in the event of payment of compensation by the State, the same may be recovered from the accused. Aggrieved by the judgment and the order of the Sessions Judge/Addl.DC(J), East Jaintia Hills District, Khliehriat, dtd. 30/3/2023, the Appellant has preferred the instant Criminal Appeal before this Court.

(2.) The case of the prosecution in brief is that based on the complaint given by one Smti Rimeki Paslein on 31/12/2011 that her husband Shri Shawas Pymgap was beaten to death at a place called Briwar Elaka Nongkhlieh, a case / FIR (Ex.P3) in Saipung Police Station Case No.1 (2) 2012 under Sec. 302/34 IPC came to be registered. Immediately thereafter the case was entrusted to one C. Shylla, Sub Inspector of Police, who examined the complainant and two independent witnesses and on his transfer, handed over the CD file to another SI C. Shylla. Subsequently, two suspected persons were arrested, namely, the appellant herein and one Nidamon Chullet, who had admitted that under the influence of alcohol, they picked up quarrel with the deceased and the next day, they came to know that the deceased was murdered. The further case of the prosecution is that the dead body was sent for post mortem after conducting inquest over the dead body and after investigation, a charge sheet was laid before the then DC of Khliehriat Court in C.S.No.6/2015 dtd. 29/7/2015 and was subsequently, made over to the Sessions Judge/Addl.DC(J), East Jaintia Hills District, Khliehriat for trial. The prosecution, in order to substantiate the offences against the accused persons, examined 11 witnesses and exhibited 6 documents. On the side of the accused, neither witnesses were examined nor documents marked. Statements under Sec. 164 Cr.P.C. were obtained from P.Ws.1 and 2. The accused were questioned under Sec. 313 Cr.P.C. and they denied the charges levelled against them. The Trial Court, after analyzing the evidence let in by the prosecution, found the appellant herein guilty of offence and convicted him as stated supra and acquitted the other accused finding no incriminating materials against him.

(3.) The learned counsel appearing for the Appellant/accused submitted that the name of the appellant was not found mentioned in the FIR initially and based on the statements made by P.Ws.1 and 2, who were claimed to be eyewitnesses, the accused was implicated in this case by creating a new prosecution theory. Moreover, the depositions of P.Ws.3 and 4 / mother and wife of the accused were not aware of the identity of the appellant herein and the P.W.3 in fact admitted that there was a delay of two days in lodging the FIR. Even the wife of the deceased deposed that she was informed by someone about the murder of her husband and there was no mention of the name of the assailant. He further submitted that though the occurrence had stated to be taken place on 29/12/2011, their statements were recorded only on 2/3/2012, after a lapse of more than two months. The depositions of P.Ws.1 and 2 do not instill confidence and lack credibility and trustworthy for the reason that they deposed before the Court that they forgot about the incident due to lengthy passage of time. Having given such a statement, a Test Identification Parade ought to have conducted to identify the accused persons and failure of the part of the Investigating Agency, which had not been taken into account by the Trial Court, is a fatal to the prosecution theory. He also submitted that inclusion of the name of the appellant in the crime in a hasty manner on the basis of the depositions of P.Ws.1 to 3 raises doubts about its trustworthiness and that apart, naming the appellant during the deposition of P.W.3 was only an afterthought. When the entire case of the prosecution rests on the witnesses of P.Ws.1 and 2, it must be provided beyond reasonable doubt and correlated with oral and documentary evidences.