Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. The accused in their statements under Section 313 of the CrPC have not stated anything in particular, and have denied their involvement in the incident. No evidence is led in defence.
12. Having gone through the evidence not only which is available on record of the appeal but also having seen the original record, our analysis of the same is as under:
13. The job of the prosecution is not to accept the complainant’s version as Gospel Truth and proceed in that direction but the investigation must be made in a fair and transparent manner and must ascertain the truth. The evidence collected during investigation should then be analysed by the Investigating Officer and accordingly a report under Section 173(2) of the CrPCshould be submitted. Further, the duty of the Trial Court is to carefully scrutinise the evidence, try to find out the truth on the basis of evidence led.Wherever necessary the Trial Court may itself make further inquiry on its own with regard to facts and circumstances which may create doubt in the minds of the Court during trial. 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.
14. In the present case, the informant (PW-1), the injured eye- witness (PW-2), eye-witness (PW-3) and eye-witness (PW-4) have categorically stated that police personnel had accompanied the accused and they were there throughout the incident. This fact is noticed by the Trial Court in its judgement but it fails to get this 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 to watch the accused assault PW-2 and commit the murder of his brother. The Trial Court had simply brushed aside the argument of the defence on this count without giving a serious thought.
15. 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 by first apprehending the accused from the spot itself rather than allowing them to get way by accompanying the police to the Police Station while continuing to assault the injured (PW-2) on the way. The entire version of the prosecution witnesses that the police personnel accompanied the accused and were standing outside the house of the deceased creates a serious doubt on the very genesis of the prosecution story.
16. Coming to the evidence of the eye-witness PW-1, the informant in her report has not assigned any specific role to any accused. It is only stated that 13 persons came to her house, some of them chased and followed the deceased who was trying to save himself by escaping from back courtyard and entering into the neighbour’s house where he was done to death. As per the FIR this role is given to Mozen Phukan, Dulen Phukan and Haren Saikia. However, in her statement in the trial she has stated that Kuleswar assaulted with an iron rod whereas Pulen Phukan caused the injury on the neck of the deceased. Interestingly, she also states that the accused persons were taken to the Police Station. She along with Jogmaya came there and lodged the FIR (Ex.-1) which was written at the Police Station. In her cross-examination, she states that she did not read the Ex.-1,it was written at the Police Station and she had only put her signatures.Ex.-1 was not read over to her, she did not know the contents of the same. Then she goes on to state that there were police along with accused.
17. The statement of PW-1 does not inspire confidence primarily for two reasons out of many. Firstly, that the FIR version and the statement during trial are materially different and secondly, once the PULEN PHUKAN & ORS. v. THE STATE OF ASSAM [VIKRAM NATH, J.] deceased had escaped from the back door of the house of PW-4 and PW-5, followed by some of the accused, PW-1 would have no opportunity to reach the house of PW-4 and PW-5 where the actual assault took place and to witness the manner in which the crime was committed. It, therefore, appears to be a tutored version.
18. Robi Pukhan (PW-2), brother of the deceased has also not seen the occurrence.According to him, initially he was standing outside his house. Thereafter, when the accused entered his house, he came inside and by that time Pradip Phukan(the deceased) had escaped through the back door to the house of PW-4 and PW-5 and when he tried to follow Pradip Phukan, he was stopped by the police and the other accused persons. His version was that he received injuries from the accused after they had assaulted the deceased whereas the other eye-witness PW-1 stated that PW-2 was assaulted along with the deceased. He further states that police came there and took him to the hospital; he received injuries on his head and hand. He has again stated that police personnel had come along with the accused. Interestingly, there is no injury report on record. The Investigating Officer (PW-7) had specifically stated that despite his best efforts, he could not obtain any medico-legal report of PW-2. Thus, the presence of PW-2 is also doubtful.
19. Jogmaya (PW-3) wife of PW-2 has given a different version of the incident. According to her, the accused persons chased her husband and assaulted him and then the accused persons took her husband to the Police Stationassaulting him all along. Thereafter, she along with PW-1 came to the Police Station to lodge the FIR. She had also clearly stated that five police personnel of the Chabua Police Station had come to her house with the accused persons and the police witnessed the incident. In her cross-examination, she admits that she did not enter the house of PW-4 and PW-5 where the deceased was assaulted. She states that police had come to apprehend her husband and the deceased. She further stated that she did not see all the accused and she did not witness the assault on the deceased.
20. PW-4 and PW-5 are the husband and wife who reside in the neighbourhood of the deceased and it is in their house that the deceased was assaulted. Evidence of PW-4 has been discarded by the Trial Court. With regard to the manner of assault, her evidence is only relevant to the extent that an incident took place in her house and not as to the manner of assault. She, however, states that she remained in her house till 4PM along with the dead-body of the deceased till such time police came and took the dead-body.
21. PW-5 has not stated anything material.
22. PW-6 is the Doctor who conducted the autopsy.
23. PW-7 is the Investigating Officer.
24. Coming to the legal issues, we first deal with the issue as to whether in the facts and circumstances it was a case of unlawful assembly and further the accused were members of the unlawful assembly with common object is made out or not. Chapter VIII of the IPC deals with ‘Offences Against the Public Tranquillity’. Sections 141 to 149 deal with definition of unlawful assembly, being member of unlawful assembly, punishment of being part of the unlawful assembly armed with deadly weapons and every member of unlawful assembly to beguilty of the offence committed in prosecution of common object to be punished under Section 149 IPC. According to Section 149 IPC every member of the unlawful assembly must know the common object of their assembly and also the offence likely to be committed in prosecution of the common object.
25. The evidence of all the eye-witnesses has been narrated in detail in the earlier part of this judgment. None of the eye-witnesses have taken names of all the accused persons who are said to be 13 in number. Only names of 3-4 accused persons are taken who are said to have assaulted the deceased and the injured PW-2. None of the eye- witnesses have stated that all the accused persons had come with a common object of committing murder and assaulting the injured PW-2. It is also not stated by any of the eye-witnesses that there were any utterances by one or many or all the accused that they must eliminate the deceased and cause injuries to the injured PW-2. There is no evidence to the effect that any of the accused exhorted the others saying that they have to eliminate the deceased and assault the injured (PW-2). Further, it is clearly stated by the eye-witnesses PW-1, PW-2 and PW- 3 that at least five police personnel were accompanying the accused and that they were standing outside and did not interfere in the commission of the alleged crime. From the above it is clear that it is difficult to decipher that all the members of the unlawful assembly were aware of the common object. PULEN PHUKAN & ORS. v. THE STATE OF ASSAM [VIKRAM NATH, J.]
26. There is one more reason to discard the theory of unlawful assembly. PW-2 and PW-3 have stated that the police along with the accused had come to arrest the deceased and the injured. If that was the object and the police were taking help of the accused persons then also the factum of common object of committing the crime of murdering the deceased is not borne out. It could be that the common object known to the accused was of apprehending the deceased and the injured PW- 2 as there was some criminal case registered against them lodged by Pulen Phukan, one of the accused. In view of the above analysis, we are unable to hold that there was an unlawful assembly and further to uphold the conviction under Section 149 IPC.
27. Now coming to the issue as to whether the named accused were the actual assailants or not and whether the eye-witnesses’ version of naming the five accused namely, Kuleswar, Pulen Phukan, Dulen Phukan, Mozen Phukanand Haren Saikia can be relied upon to record conviction. In the FIR, Kuleswar and Pulen Phukan have not been assigned any role of assault. The role assigned is to Mozen Phukan, Dulen Phukan and Haren Saikia. PW-1 has taken the name of Kuleswar assaulting on the leg with an iron rod and Pulen Phukan assaulting on the neck. In the cross-examination, she has stated that Dulen Phukan assaulted on the neck. PW-2 has stated that Kuleswar hit the deceased with a dao then he says that he did not see who assaulted Pradip Phukan and later on says that it was Pulen Phukan who dealt a blow on the neck. PW-3 has stated that Kuleswar assaulted with an iron rod and Dulen Phukan assaulted on the neck with an axe. PW-4 has stated that Kuleswar dealt a blow on the leg with an iron rod and then Dulen Phukan dealt a blow on the neck of the deceased with an axe. There is no recovery at the instance of any accused under Section 27 of the Evidence Act. The axe, according to the evidence, was left on the dead-body of the deceased. From the above what is evident is that Kuleswar’s name was not included in the FIR but his name has been consistently taken by the eye-witnesses of first assaulting the deceased with an iron rod. Insofar as Pulen Phukan is concerned, his name has been taken by PW-1 and PW-2 for assaulting on the neck and whereas PW-3 and PW-4 have taken the name of Dulen Phukan striking on the neck. Thus, there is material inconsistency in the statement of the eye-witnesses.
28. Another important aspect to be noted from the evidence of PW-1, PW-2, PW-3 and PW-4 is that after being hit by Kuleswar with an iron rod, Pradip Phukan, the deceased struggled to enter the room and there he was assaulted on the neck. When according to the prosecution story itself Pradip Phukan, the deceased had entered the neighbour’s house it would be very difficult for the eye-witnesses to also have entered the house of PW-4 and PW-5 and to witness the assault. PW-1 and PW-3 have not stated that they also entered the room where the assault took place. PW-2 has clearly stated that when he tried to follow Pradip Phukan he was stopped by the accused and the police personnel who were standing outside.
29. The above evidence creates a very serious doubt on the entire prosecution story. It is quite possible that the police personnel of the concerned Police Station 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 Pradip Phukan. The injuries of PW-2 have not been proved as admittedly there was no injury report. Even the scribe of the FIR has not been produced nor the signatures have been proved. It is quite possible that it was a complete set-up by the police. They having committed the murder in the process of arresting the deceased, and thereafter, knowing the enmity between the two parties, set-up a false case against the accused. Apparently for this reason, no explanation has come forward to explain the presence of the police personnel of Chabua Police Station throughout the incident.
30. The prosecution has not established the place of occurrence by any material exhibit of having collected the blood-stained earth from the place of occurrence. Even the material exhibit, the axe, which is said to have been taken into custody by the police whether on the date of the incident or two days thereafter has also not been produced nor any evidence led to that effect. It is still a mystery as to how the Investigating Officer in his statement has stated that he had filed a charge-sheet against eight accused as five were absconding and there is no further statement regarding three more accused being arrested and put to trial, how the Trial Court proceeded to convict 11 accused and only two were set to be absconding. Even the scribe of the FIR has not been examined. It was extremely relevant when PW-1 has stated that she had no knowledge of the contents of the FIR.
31. From the above analysis, we are of the view that although the death of Pradip Phukan was homicidal but we are not convinced that the prosecution has established the case beyond reasonable doubt against PULEN PHUKAN & ORS. v. THE STATE OF ASSAM [VIKRAM NATH, J.] the accused appellants. The appellants would be entitled to benefit of doubt. The appeal is accordingly allowed. The conviction and sentence are set aside. The appellants are set at liberty forthwith. They are in judicial custody. They may be released forthwith, if not wanted in any other case.
32. Pending applications, if any, are disposed of. Nidhi Jain Appeal allowed. (Assisted by : Kanishka Singh and Tamana, LCRAs)