Pulen Phukan And Ors. vs The State Of Assam

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.906 OF 2016

PULEN PHUKAN & ORS. …APPELLANTS

VERSUS

THE STATE OF ASSAM …RESPONDENT

JUDGMENT

VIKRAM NATH, J.

1. The Appellants have assailed the correctness of

judgment and order dated 21.11.2015 passed by Gauhati

High Court in Criminal Appeal No.113/2014 – Pulen

Phukan and 10 others versus State of Assam whereby the

appeal was dismissed confirming the judgment and order

of Trial Court i.e. Sessions Judge at Dibrugarh passed in

Sessions Case No.27 of 2000 whereby 11 accused were Signature Not Verified Digitally signed by

convicted under Sections 147/148/447/323/302/149 of Deepak Singh Date: 2023.03.28 13:51:50 IST Reason: 1 Indian Penal Code, 18601 and sentenced to Rigorous

Imprisonment for life under Section 302/149 IPC and

Rigorous Imprisonment for six months under Sections

147/148/447/323 IPC. Further a fine of Rs.1,000/- was

imposed on each of the 11 accused and in default of

payment of fine, to undergo further one-month Rigorous

Imprisonment.

2. It would be relevant to note here that although trial

was conducted against 11 out of 13 accused and all of

them were convicted and sentenced as above, all the 11

convicted accused had preferred an appeal before the High

Court which had been dismissed. However, before this

Court only four of such accused have preferred an appeal,

namely, Pulen Phukan (accused no.1), Jiten Phukan

(accused no.3), Mridul Saikia @ Midul Saikia (accused

no.5) and Mozen Phukan (accused no.2). Two of the

thirteen accused namely Dhajen Phukan and Muhiram

1 IPC 2 Phukan remained absconded and there is no material on

record regarding their arrest or trial.

3. The prosecution story begins with lodging of a First

Information Report2 on 13 June, 1989 at Police Station

Chabua, District Dibrugarh, reported by Smt.Nareswari

Phukan (PW1). It is a very short and crisp FIR which states

that around 12 noon on 13.06.1989, thirteen residents of

the village came to her house, cordoned off her house

without any reason and caused grievous injury on the

head of her brother-in-law Robi Phukan (PW 2) by giving

blows with sharp weapons and three of the accused

persons, namely, Mozen Phukan, Dulen Phukan and

Haren Saikia committed murder of Pradip Phukan by

assaulting him with sharp cutting weapons, necessary

action may be taken regarding the said incident. This was

registered as Chabua Case No.70/89 under Sections

147/148,149,447, 302, 326, 34 IPC. The police came to

2 FIR

3 the spot, made the necessary enquiries and after

completing the formalities sent the dead-body of the

deceased for post-mortem. They also collected some

material from the spot for which recovery memos were

prepared and the material taken into custody. After

completing the investigation, charge-sheet was submitted

on 3rd May, 1991 against eight accused, namely, Mozen

Phukan, Mridul Saikia, Kuleshwar Chetia, Pulen Phukan,

Baren Saikia, Dulen Phukan, Kiran Saikia and Harnath

Saikia. Five accused could not be arrested as such they

were not sent for trial being absconders, namely, Jiten

Phukan, Dhajen Phukan, Muhiram Phukarn, Haren

Saikia and Jiban Chetia. It appears that at some stage

three more accused were arrested and they were also sent

for trial. The two accused who remained absconding are

Dhajen Phukan and Muhiram Phukan. The charge-sheet

was submitted finding prima facie case for trial under

Sections 147, 148, 149, 447, 448, 324, 326 and 302 IPC.

4 The charges were read out to the accused who pleaded not

guilty and claimed to be tried.

4. The prosecution examined seven witnesses and also

filed four documentary evidences to prove the charges. The

seven witnesses are as follows:

i. PW 1- informant and eye-witness: Smt.Nareswari

Phukan (sister-in-law of the deceased);

ii. PW2-Eye-witness and injured: Robi Phukan (brother

of the deceased);

iii. PW 3 – Eye-witness: Smt.Jogmaya Phukan (sister in

law of the deceased) ;

iv. PW 4- Eye-witness: Smt.Anjana Phukan, (relative of

the deceased);

v. PW 5 – Bhuban Phukan, relative of the deceased;

vi. PW 6 – Dr.Naleswar Sonowal who conducted the

autopsy on the dead-body of the deceased; and

vii. PW 7 – Nilo Chiring, the Investigating Officer who

submitted the charge-sheet (Ex.-4).

5

5. The documentary evidence produced and proved by

the prosecution are:

i. FIR (Ejahar)-Ex.-1;

ii. Seizure of the axe-Ex.-2;

iii. Post-mortem report-Ex.-3;

iv. Charge-sheet-Ex.-4.

6. The Trial Court and the High Court came to the

conclusion that the evidence led by the prosecution was

unquestionable and have accordingly recorded the

conviction and sentence as afore-stated.

7. Heard learned counsel for the parties and perused the

material on record.

8. Learned counsel for the appellants made the following

submissions:

A. The prosecution has not come forward with fair and

honest version for the following reasons:

6

i. The FIR is very sketchy. The statement of the first

informant (PW-1) before the Trial Court is a clear

improvement from the version mentioned in the FIR.

ii. PW-1, PW-2 and PW-3 have clearly stated that at least

five police personnel were present at the time the

incident took place. It is also stated that the police

personnel had accompanied the accused. There is no

explanation given regarding the presence of the police

throughout the occurrence.

iii. If the police personnel were present outside the house

of the deceased then the matter ought to have been

reported by them regarding the incident rather than

PW-1 going to the Police Station to lodge the FIR.

iv. The accused accompanied the police to the Police

Station along with PW-2 who was throughout

assaulted on the way.

v. Why did the police personnel who were five in number

not make any attempt to apprehend the accused and

7 not only let them go scot-free but also accompanied

them to the Police Station.

B. There is no evidence whatsoever to show that all the

accused had come with a common object with regard to

the offence to be committed and if that be so invoking

sections 147,148 and 149 IPC would be untenable in law.

The ingredients of Section 142 of IPC are not established

by any evidence.

C. There is material inconsistency in the evidence of the

eye-witnesses PW-1 to PW-4 which completely discredits

their testimony not only for the reason that they are

interested witnesses being relatives of the deceased but

also on careful scrutiny of the evidence, their testimony

cannot be regarded as reliable. Further testimonies of PW-

1 to PW-4 vis-à-vis their statements under Section 161

Code of Criminal Procedure, 19733 are quite inconsistent.

3

CrPC

8 D. It is a clear case of false implication at the hands of

the police inasmuch as:

i. The police were present throughout the incident,

which presence has not been explained.

ii. The FIR is written by one Md.Majid Sikdar whose

evidence is not only not recorded in the police case

diary but also not produced through trial to prove the

report.

iii. The first informant has clearly stated that she did not

know the contents of the FIR as the same was not

read out to her and that she had only put her

signatures where she was told to.

9. On the other hand, learned counsel for the State-

Respondent submitted that both the Courts below i.e. the

Trial Judge as well as the High Court, after considering

the material evidence on record, have recorded concurrent

findings on conviction and as such the same would not

require any interference by this Court.

9

10. Before proceeding with the analysis of the evidence

led by the prosecution, the deposition of each of the seven

witnesses is briefly recorded hereunder:

10.1 The first informant PW-1 opens her statement by

stating that she knows the accused persons by name

and face. She further states that she knows the

accused persons present in the dock on the day of her

statement; the two absconded accused Dhajen and

Muhiram are not present; she then reiterates the

contents of the FIR; while Robi Phukan (PW 2) was

being assaulted, the deceased fled by the back court

yard; the accused persons chased the deceased who

entered into the house of Anjana Phukan (PW4); she

followed the accused persons who also entered into the

house of Anjana Phukan (PW4); that Kuleswar

assaulted the deceased with iron rod and Pulen

Phukan gave a blow on the neck of the deceased, as a

result of which he fell down. The accused thereafter

10 left that place. She then states that while the accused

persons were taken to the Police Station she along with

Jogmaya Phukan (PW-3) came to the Police Station

where the FIR was written and she put her thumb

impression; she proves her thumb impression on the

FIR which is marked as Ex.-1; thereafter she proceeds

for the Mission Hospital where the body of the

deceased had reached. In her cross-examination she

states that Chabua Police Station is about 3 kms. away

from her house; she reached the Police Station at

about 3-4 PM; she did not read Ex.-1 which was

written in the Police Station and only her signatures

were obtained thereon; it was also not read over to her;

she does not know what is written in it; the police did

not question her. Then she denies the suggestion

about the assault being incorrect. Lastly she states

that on the date of occurrence, the police were

accompanying the accused.

11 10.2 PW 2- Robi Phukan, brother of the deceased, is

an eye-witness as also alleged to be injured. According

to him, the deceased, his mother and Jogmaya his wife

and he himself were present at home on the fateful day

at about 12 noon when the accused persons armed

with dao etc. came to their house and enquired about

Pradip (deceased). On seeing the accused persons

coming, the deceased went out through the back door

of the house then the accused persons chased him.

The deceased entered Bhuban’s (PW-5) house (which

is the same house as Anjana’s (PW-4) as they are

husband and wife). The accused also entered

Bhuban’s house and assaulted Pradip, the deceased.

Kuleswar hit him with a dao while he was trying to

enter. Then I did not see who assaulted with dau on

the deceased’s neck. Thereafter the accused persons

came near him and caused injury by assaulting with

lathis. The police arrived there a little later and took

him to the hospital for treatment. He further states 12 that he sustained injuries on his head and hands. In

the cross-examination he states that the police did not

question him with regard to the incident. When the

accused persons came, he was outside the house.

However, on seeing the accused persons entering the

house, he also came in. He came out when the

deceased was chased by the accused. He then states

that the police personnel and the accused persons

caught hold of him. He claims to have seen the

hacking of his brother. He denies the suggestion that

actually he did not see anything. He admits that before

the police he had not stated that Kuleswar and Dhule

had assaulted the deceased. He further goes on to say

that the police personnel had come along with the

accused to his house. Another relevant fact which he

mentions in the cross-examination is that prior to the

incident of his brother’s murder, police had registered

a case against them on the basis of allegation made by

Pulen Phukan. They had appeared in the court while 13 the police were searching for them. On the day of the

occurrence police along with the accused came to his

house searching for him and his brother (deceased).

10.3 Jogmaya Phukan (PW-3) is the wife of Robi

Phukan (PW-2). She has given a similar version that

while she was sitting at home with her husband, the

deceased and her mother-in-law at around 12 noon

the accused persons armed with dao and axes came to

their house. The deceased on seeing them went out

through the back door and entered Anjana’s house.

He was chased by the accused who also entered into

Anjana’s house. She saw Kuleswar assaulting the

deceased with an iron rod and Dulen assaulting on the

neck with an axe. The neck had almost separated from

the body and it was hanging. The accused persons

took her husband Robi Phukan (PW2) to the Police

Station assaulting him. She also states about the

police personnel coming to her house along with the

accused and that they witnessed the incident. 14 According to her also, the police did not question her.

She further states that 5-6 persons have entered into

the room where the deceased was assaulted. She also

states that she did not enter the said room. She

further states that police had come to apprehend her

husband and the deceased.

10.4 Anjana Phukan (PW-4) has stated that she knows

the accused persons as also the deceased who was her

brother-in-law by relation. Their house is in the

neighbourhood and they share common boundary. On

the date of the occurrence at about 12 noon she heard

some sound outside and she saw the deceased enter

her house in a haste and accused Kuleswar who was

chasing him assaulted with an iron rod. Despite the

same the deceased entered into the house and then

Dulen Phukan with an axe assaulted on the deceased

neck as a result of which he fell down instantaneously.

The neck had almost severed and he died immediately.

The accused persons then fled the scene. She however 15 states that she stayed at home with the dead-body till

about 4 PM when the police came and took the dead-

body. Her two small children had been taken away by

her mother to her home; her husband was not at

home. She also states that the accused had left the axe

which was the weapon of assault on the body of the

deceased. She further states that she signed the

recovery memo (Ex.-2). In her cross-examination she

stated that she had seen Kuleswar, Dulen Phukan and

Pulen Phukan and also the five police personnel with

them. The various suggestions given by the defence

were all denied by her. She also states that the seized

articles have not been produced in Court and she has

not seen them.

10.5 Bhuban Phukan (PW-5) is not an eye-witness.

He has only stated that he returned in the evening

after working when he came to know that Pradip

Phukan had been murdered inside his house. He

further states that his wife and children had left for 16 their maternal home. He also states that two days after

the incident police visited his house and took away one

axe and he prove his signature on Ex.-2(2).

10.6 Dr.Naleswar Sonowal (PW-6) conducted the

autopsy and had noticed the following ante-mortem

injuries:

“Injuries:

1.Incised wound 10 x 3 cm x 6 numbers of cervical vertebrae cuts in the right side of the back of the neck. Skin, muscles, vessels, nerves and 6th cervical vertebrae were cut completely and slightly the spinal cord.

2. Incised wound 4 x 2 cm x bone deep in the scapular end at the clavicle, clavicle was cut.

3. Incised wound 4 x 2 cm x bone deep in the lateral side of the left elbow. Bevelled cut incised wound 9 x 3 cm x skin cut in the left temporal region.

4. Bruises 3 x 3 cm below the left nipple.

5. Bruises 3 x 2 cm over the 11th right rib in the interior axillary line.”

17 She has stated that the dead-body was received at the

hospital at 1 PM on 13.06.1989 and the post-mortem

was conducted at 11 AM on 14.06.1989.

10.7 PW-7 is the Investigating Officer who had

submitted the charge-sheet. According to him, the

investigation was conducted by Sub-Inspector

Dhirendra Nath Saikia and after his transfer it was

entrusted to him. He then states that out of thirteen,

eight accused were charge-sheeted and five were

reported to be absconders. He also states that he

made several attempts to arrest the absconded

accused but could not find any traces of them. He also

stated that he made attempts to collect the injury

report of Robi Phukan (PW2) at St.Look Hospital,

Chabua and also at Medical College, Dibrugarh but

could not find any records of the injured person. He

proves the charge-sheet bearing his signature as Ex.-

4. He also states that the earlier Investigating Officer

Dhirendra Saikia had collected the post-mortem report 18 from the Medical College and had not done any

investigation in the case. All the investigation,

according to him, was carried out by Sub Inspector

D.Gogoi who had expired. In his cross-examination he

has stated that the scribe of the FIR was Md.Majid

Sikdar and that no evidence is recorded of the said

scribe in the case diary. The witnesses Nareswari

Phukan PW 1, Anjana Phukan PW 4 had not stated

before the Investigating Officer about the assault made

by Kuleswar and Dulen Phukan on the body of the

deceased.

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: 19

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 CrPC should 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

20 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 21 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.

22 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 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

23 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

24 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

Station assaulting 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.

25

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

26 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 be guilty 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

27 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.

28

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 Phukan

29 and 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 30 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.

In so far 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

31 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

32 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.

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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 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.

……................................J. [B.R. GAVAI]

.………….........................J. [VIKRAM NATH]

.………….........................J. [SANJAY KAROL]

NEW DELHI MARCH 28, 2023.

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