Supreme Court: By way of a criminal appeal, the appellant challenged the order passed by the Gauhati High Court wherein the appeal was dismissed confirming the judgment passed by the Trial Court convicting the 11 out of 13 accused under Section 147, 148, 447, 323, 302 and 149 of the Penal Code, 1860 (‘IPC’) sentencing them to rigorous imprisonment for 6 months and a fine of INR 1000/- on default of which the petitioner would have to further undergo one month rigorous imprisonment. While exercising its criminal appellate jurisdiction, the full bench of B.R. Gavai, Vikram Nath* and Sanjay Karol, J.J., set aside the conviction and sentence of the appellants. Although the death of the deceased was homicidal, but the prosecution was unable to establish the case beyond reasonable doubt against the accused appellants making them entitled to the benefit of doubt.
In the matter at hand, the Trial Court had convicted 11 accused whose appeal was dismissed by the High Court. However, only 4 such accused had preferred appeal before the present Bench. The First Information Report (‘FIR’) stated that around 12 noon dated 13-06-1989, 13 residents of the village came to Ms. Nareswari Phukan’s house and cordoned her off without any reason, causing grievous injury on her brother-in-law’s head by sharp blow using weapons. They further committed murder of the deceased using sharp cutting weapons. The Trial Court and the High Court concluded that the evidence led by the prosecution was unquestionable and accordingly convicted the accused.
Issue for consideration before the Court was:
Whether it was an unlawful assembly with a common object?
Whether the named accused were the actual assailants or not?
Whether the eyewitnesses’ version could be relied upon to record conviction?
The Court noted that the accused in their statements under Section 313 of the Code of Criminal Procedure, 1973 (‘CrPC’) did not state anything in particular and denied their involvement in the incident however, no evidence was led in defence.
The Bench after perusing the documents and evidence placed on record, stated that the job of the prosecution was not to accept the complainant’s version as the gospel truth, but the investigation should have been made in a fair and transparent manner to ascertain the truth. The collected evidence should have been analysed by the Investigating Officer (‘IO’) and a report under Section 173(2) of CrPC was to be submitted accordingly.
The Bench stated that the Trial Court was duty bound to carefully scrutinise the evidence and try to find out the truth. “If the investigation is unfair and tainted then it is the duty of the Trial Court to get the clarifications on all the aspects which may surface or may be reflected by the evidence so that it may arrive at a just and fair conclusion. If the Trial Court fails to exercise this power and discretion vested in it, then the judgment of the Trial Court may be said to be vitiated.”
The Court stated that the Trial Court in its judgement failed to get clarification from the prosecution as to what occasioned the presence of the police personnel accompanying the accused and standing outside the house of the deceased. This created a very serious doubt on the very genesis of the prosecution story “If the police personnel were present at the time of commission of the offence, they should have immediately acted upon to set the criminal machinery in motion…”
The Court stated that the statement of prosecution witness 1 (‘PW1’) did not inspire confidence of the Bench because the FIR version and the statement during trial were materially different thus, appears to be a tutored version. The Bench also doubted the presence of PW2 on the site where the offence took place. PW3 gave an entirely different version of the incident.
The Bench noted that none of the eyewitnesses took names of all the accused persons, but only 3-4 accused persons out of 13 accused were named who had assaulted the deceased. Further, none of the accused came with a common object of committing murder and assaulting, thus, the Court set aside the conviction under Section 149 IPC.
The Bench further observed that one of the accused’s names was not even included in the FIR, but his name was consistently taken by the eyewitnesses for assaulting the deceased with an iron rod. Therefore, it was stated that there were material inconsistencies in the statement of the eyewitnesses.
The Court also doubted the prosecution’s story due to various lacunas existing in it. It was quite possible that the police personnels were there to arrest the deceased and his brother and in that process some resistance may have resulted into the incident causing the death of the deceased. Neither the scribe of the FIR nor the signatures have been produced. Therefore, the Court stated that it was quite possible that the entire story was a complete set-up by the police. Thereafter, knowing the enmity between the two parties, set-up a false case against the accused.
Further the Court observed that the axe which was taken into custody by the police had not been produced nor any evidence was led to that effect. The Bench found it mysterious as to how the IO file charge sheet against 8 accused as 5 were absconding and there was no further statement regarding 3 more accused being arrested and put to trial. This made it unclear as to how the Trial Court proceeded to convict 11 accused and only two were set to be absconding.
With the above observation, it was stated that although the death of the deceased was homicidal, but the prosecution was unable to establish the case beyond reasonable doubt against the accused appellants making them entitled to the benefit of doubt. Accordingly, set aside the conviction and sentence and set the appellants at liberty forthwith.
[Pulen Phukan v State of Assam, 2023 SCC OnLine SC 350, decided on 28-03-2023]
Judgment authored by Justice Vikram Nath
Advocates who appeared in this case :
For the appellants- Advocate on Record Chandra Bhushan Prasad;
For the respondent- Advocate on Record Debojit Borkakati.