JUDGMENT
S.J. Mukhopadhaya, J.
1. By impugned judgment of conviction and sentence dated 6th June, 2003 and 9th June, 2003 respectively passed by Shri Kant Roy, A.D.J. (F.T.C.), Seraikella in Sessions Trial No. 3 of 2003, the appellant having been sentenced to death, it has been referred to this Court under Section 366, Cr. P.C. for its confirmation.
A separate appeal being Criminal Appeal No. 824 of 2003, vice versa, has been preferred by the appellant against the judgment and order of conviction and sentence dated 6th June, 2003 and 9th June, 2003 respectively, passed in sessions Trial No. 3 of 2003. By the said judgment, the accused Samir Kumar Sahu having been found guilty of offence under Section 304, Part II, I.P.C., he has been sentenced to undergo R.I. for ten years; for offence under section 25(1)(A) of the Arms Act, he has been sentenced to undergo R.I. for seven years and; further he having been found guilty under Section 27(3) of the Arms Act, he has been sentenced to death.
2. In the present case, the Informant Madan Kumar Sahu (PW-6) is the full brother of accused Samir Kumar Sahu. The deceased Manoj Kumar Sahu was the minor son of the Informant. The allegation against accused Samir Kumar Sahu is that he murdered his nephew Manoj and he was in possession of prohibited arms and ammunitions.
3. As per Fardbeyan of Informant Madan Kumar Sahu (PW-6), the case of the prosecution is that in the night of 6th September, 2002 at about 9.30 P.M., the Informant was at a betel shop near Railway station, Kharsawan and on his return to his house by 10 P.M., as he could not find his son Manoj Kumar Sahu in his house, asked his wife about him. The wife of Informant answered that boy had gone to the room of accused Samir Kumar Sahu with meal of his uncle. Then the Informant went to the room of accused Samir Kumar Sahu and saw his son Manoj lying on the floor of the room having bleeding on his left head caused by bullet and he was dead. When he asked the accused, the accused answered that a loaded pistol was on the table and the boy had taken that pistol. When the accused tried to take away the pistol from him, the trigger was pressed causing injury on him and he died on the spot. The Informant further stated that on his information, the police came and arrested the accused. The accused confessed before the Police that he fired from his pistol. On his (accused) disclosure and on identification, the pistol and bullets were recovered by the Police.
4. To bring home the charges, the prosecution examined altogether 11 (eleven) witnesses. Out of them, B. K. Das (PW-9) was a formal witness who proved the sanction of prosecution granted by the D.C., Satrughan Ram (PW-10), a police constable who produced one 9 mm pistol, two iron magazines and some bullets before the Court. Arbind Kumar Manjhi (PW-11), Sub-Inspector of Police was the Investigating Officer (I.O.). The other witnesses are Pankaj Kumar Acharya (PW-1), an independent witness; Rabindra Jaiswal (PW-2), another independent witness, Rusu Mahto (PW-3), the third independent witness; Raju Sahu (PW-4); Pradhuman Sahu (PW-5), uncle of the deceased; Madan Kumar Sahu (PW-6) the Informant, father of the deceased and Karam Chand Mahto (PW-7), and Shiv Charan Mahto (PW-8), both are seizure list witnesses. All of them did not support the case of the prosecution, so they were declared hostile by the prosecution.
5. In spite of the fact that all the main witnesses including the so called eye-witnesses, they were declared hostile, the learned trial Court held the accused guilty and convicted for the offence under section 304, Part II of the I.P.C., section 25(1)(A) of the Arms Act and also held him guilty and convicted under Section 27(3) of the Arms Act and sentenced to death, on the ground that the story advanced by PW-4 and PW-6 (Informant) is just not possible, rather improbable, unreasonable and unreliable and relied on fardbeyan and the post-mortem report to hold the accused guilty for the offences.
The main plea taken by the counsel for the appellant is that the judgment and conviction are not based on any evidence, but are based on presumption. This was refuted by the learned A.P.P.
6. PW-1, Pankaj Kumar Acharya has deposed that in the morning he came to know about the death of son of the Informant. He did not know as to how the boy died and the police had not recorded his statement. He was declared hostile by the prosecution. In the cross-examination also, he denied to have made any statement before the Police regarding receipt of information of death of the boy in the manner described.
PW-2, Rabindra Jaiswal also stated that he was not present at the time of occurrence as he had gone to Deoghar. He was, therefore, declared hostile by the prosecution.
Similarly, PW-3, Rusu Mahto stated that the Police had not enquired anything from him. In the cross-examination, he denied to have stated anything to Police relating to death of Manoj.
Though PW-3 has signed in the seizure list, in the cross-examination, he specifically deposed that the Police had taken his signature on a blank paper on threat.
PW-4, Raju Sahu is the brother of the Informant and the accused. He deposed that on the date of occurrence in between 9 to 10 P.M., he was outside his house. He saw the deceased Manoj Sahu running towards the room of accused Samir Kumar Sahu and after some time, he heard sound of fire from the room. When he entered in the room, he saw Manoj bleeding in his head and the pistol was lying there. He specifically stated that the accused Samir Kumar Sahu was not present in the room where the body of the deceased was lying.
In the cross-examination, he denied the manner of occurrence. He also denied the seizure of pistol, bullets and blood stained clothe. Though, he accepted to have signed on the seizure list, but he stated that the Police obtained his signature on a blank paper.
PW-5, Pradhuman Sahu another full brother of the Informant and the accused deposed that he was in the house of his sister and after two days’ of occurrence, he came to know about the occurrence. He was also declared hostile by the prosecution. In the cross-examination, he denied the fact that the boy died when the accused was trying to take away the pistol from the deceased and the trigger was pressed during scuffle.
PW-6, Madan Kumar Sahu who is the Informant and father of the deceased was also declared hostile by the prosecution, he having not supported the manner of death, as described by the prosecution. Though he admitted his signature in the Fardbeyan (Ext. 2), deposed that at the time of occurrence, he was at his Verandah and saw his son running into the room of the accused. After about half an hour, he heard the sound of fire and when he reached inside the room, saw Manoj lying profusely bleeding and a pistol was lying there. He also stated that the accused was with him at the time of occurrence. He denied the substance of fardbeyan in his cross-examination and also denied that the accused made any confessional statement before the police leading to recovery of any fire arm and other materials.
In his cross-examination, the Informant, PW-6 specifically deposed that the Police never read over the Fardbeyan after it was written. He further deposed that the deceased Manoj was alone in the room at the time of occurrence. He also deposed that by the time, his Fardbeyan was recorded, the Police had already taken the accused in custody.
The evidences of PW-7, Karam Chand Mahto and PW-8, Shiv Charan Mahto are also important for determination of the question as raised in the present case. They were shown as seizure list witnesses of one 9 mm pistol, two iron magazines and four live bullets. In his deposition, PW-7 specifically stated that the Police obtained his signature on a blank paper.
In his cross-examination, PW-7 also made it clear that the Police had not seized any material nor put any query with the accused in his presence. He had to put his signature on a blank paper because of threat of Police.
PW-8 who was also declared hostile, during his cross-examination, deposed that on the date of occurrence, he had gone outside his house in the morning. After his return, he signed on a paper and the Police had not seized any material in his presence.
7. From the aforesaid testimonies of different prosecution witnesses, including those who are independent and those who are related to the deceased, it will be evident that none of them have supported the case of the prosecution and, therefore, they were declared hostile. On the other hand, PWs-4 and 6 have deposed that the accused Samir Kumar Sahu was with them at the time they heard the sound of fire.
It is not the question for determination as to the manner in which the injury was caused and is possible to have caused to the deceased, rather the main question for determination is whether the prosecution could prove its case against the accused Samir Kumar Sahu beyond all reasonable doubt or not.
From the testimonies of witnesses, as discussed above, one cannot come to any definite conclusion that the accused Samir Kumar Sahu was in his room with the deceased at the time of occurrence; and that because of scuffle between him and the deceased, the fire took place. There is no evidence to suggest that the 9 mm pistol, two iron magazines and bullets were with him.
8. PW-10 though produced one 9 mm pistol, two iron magazines with live bullets, has not proved nor stated that those pistol, iron magazines and the live bullets were the same, which were recovered and seized. They were not identified by him. It was very essential in view of the fact that both the seizure list witnesses of 9 mm pistol, two iron magazines and live bullets, namely, PWs-7 and 8 stated that no pistol or iron magazine or bullet were recovered in their presence and the Police took their signature on threat.
9. Now, if the Testimony of PW-11, Sub-Inspector of Police, who was the I.O. is noticed, one will find contradictions with other evidence. PW-11 deposed that he found the dead body of the deceased, Manoj Kumar Sahu, bleeding in the P.O. (room of the accused). There was a bed in the eastern wall and a small wooden table in the western-northern corner. Necessary day-to-day items were kept on the table. He has not supported the case of the prosecution as per Fardbeyan as he had not found any a plate containing meal for the accused or the meal scattered here and there. In the Fardbeyan, Informant stated that the deceased had gone to the room of the accused to give his meal.
PW-11 stated that one 9 mm pistol, two iron magazines and bullets were recovered from sand from a distance of about 20 yards of the back side of the room of a tenant; the weapons etc. were recovered on the basis of confessional statement of accused Samir Kumar Sahu, but the seizure list witnesses i.e. PWs-7 and 8 and other PWs have not supported this recovery. There being no evidence to corroborate the statement of I.O. (PW-11), it is not desirable to convict the accused on the basis of his statement.
10. From the Fardbeyan dated 6th September, 2002 recorded at 11 P.M. (23 hours), it appears that the weapons were recovered prior to recording of Fardbeyan, but from the seizure list of weapons (Ext. 9), it appears that the seizure list was prepared on 6th September, 2002 at 11.15 P.M. (23.15 hours.)
At the end of Paragraph- ’12’ of his deposition, the I.O. (PW-11) has deposed that the statement of accused Samir Kumar Sahu was taken on 7th September, 2002 at 1 A.M. in the night. If that is accepted, it has not been made clear as to how before taking such confessional statement, the weapons were recovered and seizure list was prepared at 23.15 hours on 6th September, 2002.
This apart, from the seizure list of weapons (Ext. 9) dated 6th September, 2002, it will be evident that there is interpolation of date given on the seizure list. On the top, the date of seizure was shown as 7th September, 2002 which was interpolated as 6th September, 2002. In the same seizure list of weapons (Ext. 9), in the bottom while the Police Officer signed as 7th September, 2002, by interpolating, it has been changed as 6th September, 2002. If these facts are taken into consideration along with the evidence of PWs-7 and 8 that the weapons were not seized in their presence and the Police obtained their signature on a blank paper, there raises a great doubt relating to recovery of 9 mm pistol, two iron magazines with four live bullets on the basis of confessional statement of the accused, as suggested by the I.O.
Curiously, the learned Court below, has not considered all such aspects of the matter, resulting erroneous finding of conviction and sentence, awarding capital punishment against the appellant, which cannot be sustained in view of my above reasoning.
11. In the result I find merit in the Criminal Appeal preferred by the appellant Samir Kumar Sahu, which is allowed and the impugned judgment and order of conviction and sentence dated 6th June, 2003 and 9th June, 2003 respectively, passed by the learned Additional District Judge (fast Track Court), Seraikella in Sessions Trial No. 3 of 2003, arising out of G.R. Case No. 560 of 2002, is hereby set aside. The appellant Samir Kumar Sahu is acquitted of the charges levelled against him. As the appellant is in custody, he is ordered to be released forthwith from custody, if not wanted in any other case.
12. Reference Letter No. 524 of 2003 dated 13-6-2003, referred by the learned Additional District Judge (Fast Track Court), Seraikella, for confirmation is, accordingly, answered in negative.
Lakshman Uraon, J.
13. I agree.