STATE OF ASSAM Vs. SUDAM PASHI

JUDGEMENT

(1.) The criminal appeal and the criminal revision have been preferred against the same JUDGMENT & ORDER dated 25.1.88 passed by Sessions Judge, Cachar in Sessions Case No. 106/86 acquiting the accused persons from the charges u/s 148/302/307/149/447 IPC.

(2.) The case of the prosecution is that on 11.12.84 complainant Debendra Chandra Das (P.W. 1) lodged ejahar alleging that on the previous night at about 12 mid night hearing the sound of a mob the complainant came out of his house by opening the door and demanded identity of the trespassers. Instantaneously the accused Sudam Pashi fired two rounds of shots from his gun and the remaining accused persons numbering about 30/ 40 attacked the complainant party with bow and arrows, dao, lathi and spears. The gun shots caused injuries on the two legs of the complainant besides causing injuries to his brothers Sanatan and Radharaman in different parts of their body. Condition of Sanatan was precarious and he was removed to Silchar Medical College Hospital who succumbed to his injuries on the next day. In the complaint the complainant claimed the identification of six accused persons alongwith whom there were about 30/40 others. The accused persons were charged u/s 148/149/447/307/302 IPC. Eight prosecution witnesses were examined. Defence stand was complete denial. The trial Court after conclusion of the trial acquitted all the accused persons as the prosecution failed to identify the accused persons and the charges were not proved beyond all reasonable doubt. The point for consideration before this Court is whether the accused persons were liable to be acquitted for lack of identification.

(3.) Exhibit-A is the G.D. entry (Certified copy). This exhibit shows that Debendra Das (complainant), Sanatan Das and their nephew Manu Das came out of the house and demanded recognition of the miscreants who alleged to be made unlawful assembly with deadly weapons. At that time two rounds of shots were fired from the other side, as a result they were injured. The specific statement in the Ext-A is that accused Sudam Pashi, Sumer Pashi and Ram Charan Pashi were recognised try their voice. P.W. 3 Kamal Das is the informant of Ext-A. In the trial as prosecution witness his deposition was that in the focus of torch light belonging to Debendra Das (P.W. 4) he could recognise all the accused persons. This P.W. 4 in his deposition stated that he focused the torch light and could recognise the accused persons inside the courtyard of the complainant: and accused Sudam Pashi was armed with a gun. Further evidence on record shows that P.W. 4 came to the place of occurrence after hearing a gun shot. He could not say who actually fired the gun. Evidence on record also shows that his house is at a distance on the East side of the house of the informant which definitely requires some time to reach the place of occurrence. In this statement u/s 164 CrPC this P.W. 4 did not say that he had met Kamal Das (P.W. 3) in that night. He was a witness in a criminal case against the accused persons. As it appears from Ext-A which was immediately made after the occurrence identification of the accused persons were found on hearing their voices. Exhibit-3 is the complaint which was submitted after a lapse of time from filing of the G.D. entry. The trial Court did not accept this Ext-3 as it was submitted subsequently with a variation of Ext-A and the reason of non- acceptance is based on appreciation of evidence on record and I find no ground to interfere with it. From that point of view Ext-A is to be accepted by which identification of the accused persons were established. As stated above P.W. 3 stated that he recognised the accused persons from the focus of the torch light carried, by P.W. 4. These were the improvements at the time of trial. Prior to that all the prosecution witnesses stated that the accused persons were identified in the focus of torch light. The informant stated in his deposition that when he heard hulla of the marpit he came out alongwith Sanatan and nephew Manu and demanded recognition of the miscreants and this fact was stated in Ext-A. But in his deposition in the trial he stated that among the miscreants this witness could recognise the accused persons in the moon light. Apparently Ext-3 and Ext-A gave a different story. In a detailed discussion the learned trial Court on the basis of the materials on record came to the conclusion that the version of the prosecution witnesses is not reliable at all. Apart from this the P.W. 4 was examined after 16 days of the occurrence. In a series of decisions it is established position of law that the evidence of witnesses examined by the police long after the date of occurrence should be rejected when it appears their evidence is procured and suspicious. From the above discussion it is clear that the miscreants could not be properly identified by the prosecution and their identification could not be established beyond all reasonable doubt. Prosecution evidence shows that it is the accused Ram Charan Pashi who fired all the gun shots. Evidence of P.W. 7 revealed that the gun was seized from the accused Ram Charan Pashi and the licence stood in his name. This gun was seized on 17.12.84 that is about six days after the occurrence. It was then sent to ballistics expert to prove as to whether ;any shot was fired from the said gun at the relevant time. The material witness one Makhan Chakravorty was not examined though P.W. 4 stated categorically that he was accompanied by said Makhan Chakravorty to the place of occurrence immediately after the gun shots. Therefore the prosecution story that the accused Ram Charan Pashi fired two gun shots from his own gun was also not proved beyond reasonable doubt.