Gauhati High Court
Atowar Ali vs The State Of Assam on 8 May, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/27
GAHC010146262022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./162/2022
ATOWAR ALI
S/O LATE HABIBULLAH SHEIKH
RESIDENT OF VILLAGE SIDHABARI NIGAM, PO BAKAITARY, PS MATIA,
DIST GOALPARA, ASSAM , 783125
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER
For the appellant : Mr. A.K.Hussain Advocate.
For the respondent : Ms. A. Begum, Addl. PP, Assam.
Date of hearing : 22.04.2025
Date of judgment : 08.05.2025
Page No.# 2/27
JUDGMENT AND ORDER (CAV)
(S.K. Medhi, J)
1. The instant Appeal has been filed under Section 374 (2) Cr.P.C 1973,
[corresponding to Section 415 of the BNSS] against the judgment & order dated
21.06.2022 passed by the learned Sessions Judge, Chirang in Session Case
No.79/2015 corresponding to Dhaligaon P.S Case No.174/2012 U/S 302 IPC
[corresponding to Section 103 of the BNS] by which the appellant was convicted
and sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/-, in
default, RI for 6 months.
2. The criminal law was set in motion by lodging of the Ejahar dated 17.10.2012
by the PW-1, who is the wife of the deceased Nazrul Islam. The Ejahar states
that on 17.10.2012 at about 6:45 P.M, the informant’s husband Nazrul Islam was
coming towards his quarter after his duty. When he reached the 1 st corridor of
the staff quarter, the appellant/convict intentionally shot the deceased with his
arms as a result of which the informant’s husband sustained injuries. It is also
stated in the Ejahar that on hearing the noise, the informant rushed to the place
of occurrence and saw the deceased falling down on the corridor and that while
dying, the deceased told the informant that it was the appellant, who had shot
him with his duty arms and thereafter, he expired on the spot. Based on this
Ejahar, the formal FIR was registered and investigation conducted. On
completion of the investigation, the charges were laid against the appellant u/s
302 IPC [corresponding to Section 103 of the BNS].
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3. Charge was accordingly framed against the appellant and the appellant
having pleaded not guilty, the trial commenced. During the trial, the prosecution
adduced evidence through 17 nos. of witnesses.
4. PW-1 is the informant and the wife of the deceased. She deposed that the
incident took place around 6:45 P.M on 17.10.2012. She and her husband lived
on the 3rd floor of family quarters beside the S.P Office. Her deceased husband
worked in SB (Special Branch). The appellant lived on the ground floor of the
same quarters. Every day when her husband used to come home in the
evening, she would go downstairs and take his shopping bag. On the day of the
incident also, in the evening, on seeing her husband stopping his motorbike she
came downstairs and her husband was climbing up. Just then the appellant
came out with a carbine in his hand and shot her husband from behind. She
screamed and rushed to her husband and appellant ran to his quarter and
closed the door. As soon as she got hold of her husband he told her twice that
appellant had shot him. The bullet entered through the back of the deceased
and exited through his chest. The PW-1 had proved the Ejahar as Exhibit 1 and
her signature therein as Exhibit 1 (1).
In her cross-examination PW-1 stated that the appellant worked in the
police department, but she did not know his designation. The appellant was not
acquainted with them or on visiting terms with her family; she stated that all the
residents in the quarters were police personnel. The staircase was adjacent to
appellant’s quarter. She denied the suggestion that she did not tell the police
that while she was coming down the stairs she witnessed the appellant shooting
her husband from behind. PW-1 denied the suggestion that the appellant had
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not shot her husband and that her husband had not said that the appellant had
shot him. She could not say as to how many people had heard her husband
saying that the appellant had shot him. She denied the suggestion that some
other personnel had killed her husband.
5. PW-2 is also a resident of the same building in which the deceased and the
appellant resided and he is a witness to the dying declaration made by the
deceased. He deposed that he used to reside on the second floor whereas the
appellant was residing on the ground floor. He deposed that on 17.10.2012 at
around 6:30 to 6:45 PM he was returning to his quarter after duty hour and
when he was at a distance of about 60/70 meters away from the quarter he saw
the deceased get down from his bike. He parked the bike in the corridor and
thereafter, proceeded to the staircase to go up to his quarter and he had a bag
in his hand. Immediately after that he saw the appellant come out in the
corridor with the carbine in his hand. After two or three seconds he heard the
sound of firing and immediately sat down on the road but he heard the scream
of PW-1, the wife of the deceased. He rushed to the quarter and upon reaching,
he found that the wife of the deceased was holding the deceased and the bullet
injury on the back of the deceased. He deposed that the deceased was alive till
then and on being questioned by his wife, he managed to say the name of the
appellant and had also pointed his finger towards the door of the appellant. He
was lying at the first staircase, near the quarter of the appellant. He deposed
that they took the deceased in their departmental vehicle to the hospital where
the doctor declared him dead. Thereafter, they came back to the police quarter
and found that the appellant was missing and came to know that he had run
away.
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On being cross-examined, PW-2 stated that some UBC constables get arms,
some do not. AB constables get arms. On the day of occurrence he performed
duty till 6:30 PM; after that he came back walking to the quarter and that he did
not see the firing. He denied the suggestion that he had not told the police that
the victim told his wife that the appellant had fired the shot at him and he also
stated that he told the police that he saw the gun injury on the back of the
victim. PW-2 denied the suggestion that the appellant did not commit the
murder of Nazrul Islam. He denied the suggestion that he was deposing falsely.
6. PW-3 is also a resident of the family quarter where the appellant and the
victim were living. He deposed that appellant was residing on the ground floor
and deceased was living on the 2nd floor. On 17.10.2012 he along with his wife
and son went to Bongaigoan for marketing and they came back to the quarter
at around 6:30 PM and his wife immediately went upstairs. When he was
parking his bike, his son went to the quarter of the appellant. He knocked on
the door and called out for the appellant’s son. The appellant himself came out
wearing a black pant and checked shirt and he had a carbine with him, the
appellant told his son that the appellant’s son was studying and would not come
out. Then, his son went upstairs to their quarters. After about 10 to 15 minutes;
he heard the sound which sounded like a cracker. But immediately, he heard the
scream of the wife of the victim. He also came out and went downstairs and
saw the victim being held by his wife and he was still alive. He deposed that
the victim on being questioned told them that the appellant had fired at him and
pointed towards the quarter of the appellant. He said that the victim was lying
at the foot of the staircase near the quarter of the appellant. Thereafter, on
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seeing the critical condition of the victim they decided to take him to the
hospital.
PW-3 on being cross-examined reiterated that he told the police that after
coming back from the market his son directly went to the quarter of the
appellant, knocked on the door and called his son and he denied the suggestion
that he did not state to the police that he saw a carbine with the appellant. He
also deposed that he told the police that the victim told them that the appellant
had fired at him and that the victim pointed towards the quarter of the
appellant. When the victim pointed his finger, his wife was also there. He denied
that he was deposing falsely.
7. PW-4 is also a resident in the same building as the appellant and the victim
and he deposed that the appellant stays on the ground floor. However, he
deposed that he is a sick person and stays indoors most of the time and that he
did not know anything about the incident which took place on 17 October; he
could not remember the year. PW-4 was discharged as he was unable to speak
or depose due to his illness.
8. PW-5 deposed at around 7:00 to 7:30 PM on 17.10.2012, he received a
phone call informing him that there was firing at the family quarter of the police
reserve. At that point of time, he was working as the Inspector of Arms Branch.
Immediately, he rushed to the P.O., which was at the ground floor of the four
storied family quarter. There was a large crowd and he noticed blood stains
near the stair case and he heard that the appellant had opened fire at the
deceased person and the body had already been removed to the hospital. The
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appellant was not there. Thereafter the police came and during the search at
the P.O., one empty case of 9 mm ammunition and the fired cartridge were
found. The Police seized the 9 mm empty case vide Exhibit 2. PW-5 proved his
signature in the said seizure list as Exhibit 2(1). The fired cartridge was also
seized vide Exhibit 3 and he put his signature as seizure witness as Exhibit 3(1).
The police also searched the quarter of the appellant and found one 9 mm
carbine with one magazine fitted. Two other magazines were also found in the
VIP suitcase. A total of 70 rounds of ammunition were issued to the appellant
and one round was found short. The police seized the carbine, magazine and 69
rounds of ammunition in his presence vide Exhibit 4. PW-5 proved his signature
in Exhibit 4 as Exhibit 4(1). He deposed that after a few days, the police also
seized the arms, ammunitions issue Register from their Malkhana and gave it to
him on zimma. Exhibit 5 is the seizure list and he proved his signature in Exhibit
5 as Exhibit 5(1). PW-5 also proved Material Exhibit 1 as the seized carbine with
body no. 16086108, Material Exhibit 2, 3 and 4 as the three magazines, Material
Exhibit 5 as the 69 numbers of 9 mm ammunitions, Material Exhibit 6 as the
magazine pouch, Material Exhibit 7 as the hard plastic body suitcase with the
name of the appellant, Material Exhibit 8 as the fired cartridge and Material
Exhibit 9 as the empty case of 9 mm ammunition. P W 5 also proved Material
Exhibit 10 as the arms and ammunition issue register, Material Exhibit 10(1) as
the photo copy of the relevant page and Material Exhibit 10(2) as the photo
copy of the relevant entry, all proved in original.
In his cross-examination, the PW-5 stated that he saw the ammunitions
being recovered and counted the same and he stated that each ammunition
contains manufacturing number. In Exhibit 3 the number of the cartridge is not
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mentioned and only 9 mm bullet is mentioned. In Material Exhibit 10(2) the
body number of the carbine is mentioned as 16086106. He stated that there is
over writing on the last number “6”. PW-5 also deposed that in Material Exhibit
10 the counter sign of the in-charge is not taken and only the person to whom
the arms and ammunition were issued puts his signature. He further denied the
suggestion that the Material Exhibit 1 was not issued to the appellant and also
denied the suggestion that the seized items were not recovered from the
quarter of the appellant. He denied that Material Exhibit 10 was subsequently
manufactured.
9. PW-6 is also a seizure witness. He deposed that at the time of the incident
he was working at the office of S.P Chirang. He stated that it takes 5 minutes
from the S.P office to the place of occurrence on foot. On 17.10.2012 at around
6:00 to 7:00 PM, someone came to their office and informed that an incident of
firing had taken place in their family line. On receiving the news, they went to
the place of occurrence. He deposed that the quarter of the family line is a four
storied building. The incident took place on the staircase that connected the
ground floor with the first floor. He saw blood on the staircase. The room of the
appellant was adjacent to the place of occurrence and his room was closed from
inside. When they knocked on the door, his wife opened it and they all entered
the room in search of the weapon. Then they found a carbine inside a carton
under the bed with two magazines and some loose rounds in a suit case. On
checking the carbine they found 19 rounds of bullets in the magazine attached
to it and there were 20 rounds of bullets each in the two magazines which were
in the suitcase. They also found 10(ten) loose rounds of bullets. These articles
were seized and he put his signature in the seizure list. Exhibit 4 is the seizure
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list and he proved his signature therein as Exhibit 4(2). He stated that Material
Exhibit 1 to 7 are the seized carbine, magazines, 10 rounds of 9 mm bore
ammunition and a VIP suitcase. PW-6 also stated that they made a search for
empty cartridge and found the same at the place of occurrence. The empty case
was also seized and Exhibit 2 is the seizure list. He proved his signature in
Exhibit 2 as Exhibit 2(2) and Material Exhibit 9 as the empty case. PW-6 also
stated that they saw a mark of firing on the wall of the place of occurrence and
also found a fired bullet at the P.O. The said fired bullet was also seized as
Exhibit 3. He proved his signature in Exhibit 3 as Exhibit 3(2), and proved
Material Exhibit 8 as the said fired bullet.
In his cross-examination PW-6 confirmed that the seized articles were
recovered from the room of the appellant and that the empty case was
recovered in front of the appellant house. He denied the suggestion that
Exhibits 2, 3 and 4 were not prepared at the P.O.
10. PW-7 is also a resident of the family quarter where the victim and appellant
were residing. She deposed that they resided in the quarter on the ground floor
and that the appellant also resided on the ground floor next to her quarter. She
deposed that the incident took place in the evening at around 6:30 PM. At that
time her husband had returned to the quarter after his duty hours and they
were having tea. Just then they heard the sound of gunshot and after a second
she heard a women crying. She came out from her quarter and saw that on the
staircase of the ground floor the informant PW-1 was crying and holding her
victim husband on her lap and the victim was seen with pool of blood. She
deposed that she saw the PW-1 asking her husband as to who had shot him and
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then the victim could not say anything but he pointed his finger towards the
residential quarter of the appellant.
PW-7 in her cross-examination confirmed she came out of her quarter upon
hearing the gun shot after 2/3 minutes. She did not see the occurrence but she
denied the suggestion that the informant had not asked her husband as to who
had shot him and the victim had pointed his finger towards the residential
quarter of the appellant. She denied the suggestion that she deposed falsely.
11. PW-8 is also a seizure witness; he was serving as Havildar at Police
Reserve Chirang District. He deposed that on 17.10.2012 at around 6:45 PM
when he was on duty at office, he heard the sound of gun fire at the family
quarter of the police reserve near the office. Upon hearing the noise, he went to
the family quarter and when he arrived in front of the quarter of the appellant,
he saw blood stains on the floor just below the steps of the quarters.
Subsequently police arrived at the spot and recovered one 9 mm empty case
which was seized and exhibited as Exhibit 2. He proved Exhibit. 2 and he proved
his signature therein as Exhibit 2(1). He deposed that the I.O also seized the
fired cartridge and proved as Exhibit 3 with his signature as Exhibit 3 (3). He
deposed that the police searched the quarter of the appellant and recovered the
Carbine issued to him; three nos. of magazine, 69 rounds of 9 mm live
ammunition kept in a VIP bag in his quarter and all these articles were seized by
the police by preparing the seizure list. He stated that he saw the seized empty
case and the fired bullet in Court. He also proved Material Exhibit 9 as the
seized empty case and Material Exhibit 8 as the seized fired 9 mm bullet.
Page No.# 11/27
In his cross examination, PW-8 denied the suggestion that he did not state
before I.O that he saw blood stains on the floor just below the step of the
quarter of the appellant. He deposed that as per the seizure list, the seized fired
bullet was found lying on the stairs of the ground floor leading to the first floor
of the four storied family quarter. He also stated that he counted 69 numbers of
9 mm live ammunitions and also touched the magazines which were found in
the house of the appellant.
12. PW-9 is a constable who knows the informant as well as the appellant and
resides in the same building. He stated that on 17.10.2012 he reached the
Police Reserve at around 6:15 PM after finishing his duty. At that time he was at
home. Then he heard the sound of firing and after sometime he heard someone
crying. After hearing the hue and cry he and his wife went out and he saw the
deceased person lying with a bullet wound on his chest. The deceased victim
then pointed to the quarter of the appellant. The door of the quarter of the
appellant was locked from inside and he called the appellant but there was no
response.
In his cross-examination PW-9 stated that the deceased was not in a
position to speak and he could not ask anything. PW-9 denied the suggestion
that the victim had not pointed to the house of the appellant.
13. PW-10 is the M.O who performed the Post-mortem on the dead body of
the victim. He deposed that on 18.10.2012 while he was working as Medical and
Health Officer at the Bongaigaon Civil Hospital, he had conducted that post-
mortem examination on the dead body of Nazrul Islam. His observations were
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stated as under-
“EXTERNAL APPEARANCE:
A healthy male of average built and medium complexion in fresh
condition.
Injury: 1. A small wound present on back on left side. Size about 2 cm x 2 cm.
Margin inverted, charred which suggest entry wound of bullet.
2. A small wound present above right nipple, inverted margin, size 2.5cm x 2.5
cm which suggests exit wound of bullet.
3. A through and through small wound present on right side of chest over right
breast.
4. Tear present in upper part of pleura. Right pleural cavity is filled with blood.
5. Perforating injury seen in lower part of right lobe of liver extending upwards
upto diaphragm. Wound is filled with blood.
6. Peritoneal cavity is filled with blood.
Opinion:- In my opinion, the cause of death is due to hemorrhage and shock
following bullet injury and it is antemortem in nature. Ext. 6 is the postmortem
report and Ext. 6(1) is my signature.”
In his cross-examination he deposed that he conducted the post mortem
at 2:15 PM.
14. PW-11 is the wife of the appellant and was present in the house of the
appellant at the time of occurrence. She deposed that she knows the deceased
who was the husband of the informant. She stated that the incident took place
about 6 or 7 years ago at the Police Reserve Kajalgaon. She stated at that point
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of time she was residing there with her husband and three children and she had
heard that one Nazrul Islam a Police Personal had died due to Bullet injury.
This witness turned hostile and the prosecution cross-examined the
witness. On being cross-examined, she denied stating before the I.O. that on
the day of occurrence her husband was watching the T.V. in front room when
she heard the sound of firing. She also denied stating before the I.O. that
immediately after the sound, her husband came through the door and
immediately kept his arms under the bed and after that fled through the back
door and it was around 6:40 to 7;00 Pm. The PW-11 also denied that the arms
and ammunitions kept under the bed and one VIP bag were seized by the police
from their quarter. She deposed that police did not record her statement and
she had put her signature on a blank paper. She stated that there was no prior
enmity between her husband and that the Materials Exhibit were not seized by
the I.O.
15. PW-12 is one of the I.Os who deposed that after taking charge of the
investigation on 02.03.2013, he seized the command certificate issued on
06.10.2012 in the name of the accused. On 02.04.2013 he also seized the
issuing register of arms and ammunitions. After that, he was transferred and he
handed the case dairy to the concerned O.C. He proved the seizure list by which
arms issue register was seized as Exhibit 5 and his signature therein as Exhibit
5(2). He also proved the command certificate as Exhibit 7 and Exhibit 7(1) as
his signature. In his cross-examination PW-12 stated that in the seizure list it
was not mentioned from which branch of the police reserve the command
certificate was issued or who issued the command certificate or the issue
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number. He stated that in Exhibit 5 the volume number of the register, the
person who issued the register and period for which the register was issued
were not mentioned.
16. PW-13 is also one of the I.Os who deposed that after taking charge of the
investigation, he recorded the statement of the accused. After that he was
transferred and the case diary was handed over to the concerned O.C.
17. PW-14 is also an I.O. who deposed that when he took charge of the
investigation, he found that the earlier I.O. had completed the entre
investigation. Accordingly he submitted charge sheet against the appellant
Atowar Ali for the offences under Section u/s 302 IPC [corresponding to Section
103 of the BNS]. He proved the charge sheet as Exhibit 8 and Exhibit 8(1) as his
signature therein.
18. PW-15 stated that he was serving as ASI at Chirang Reserve Police on
06.10.2012. On that day at about 10:45 AM, he issued duty command to the
appellant Atowar Ali. After that the appellant left the Police Reserve. Thereafter,
on 17.10.2012 he got the information over the phone that the appellant had
shot one Nazrul with fire arm. He proved the command certificate book as
Exhibit 9 and the duplicate of the command certificate as Exhibit 9 (1). He
stated that the original command certificate was given to the appellant. He
proved his signature in the command certificate book as Exhibit 9(2) and the
signature of the appellant as Exhibit 9 (3) as he was acquainted with the
signature of the appellant. On being cross examined he stated that in Exhibit 9
duties slips are attached in some of the certificates and it was not attached in
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others.
19. PW-16 is the main I.O. of the case. He deposed that on the day of the
incident he was serving as S.I of police at Dhaligaon P.S. After getting the
information about the incident at around 6:55 PM, he proceeded to the P.O. He
reached the P.O at around 7:12 PM. In the meantime, the SP, Additional SP, DSP
HQ, were also present at the P.O. The P.O. is a corridor in front of the house of
the appellant and he made a sketch map of the P.O. When he reached some
constables had already taken the deceased to the hospital. PW-16 deposed that
he seized one empty case of 9 mm ammunitions, one 9 mm carbine registration
No. 16086108 with one shilling, one magazine fitted with 19 rounds of 9 mm
ammunitions, two number of 9 mm carbine magazines loaded with 20 rounds of
9 mm ammunitions in each magazine which was found in a VIP bag kept inside
the room of the appellant. He also seized 10 rounds of 9 mm ammunitions
packed in a plastic carry bag which was kept inside the VIP bag, one fired bullet
of 9 mm. Empty case and fired bullet were found in the corridor and other arms
and ammunitions were found inside the quarter of the appellant. He did not find
the accused because he had fled away after committing the offence. In the
meantime, FIR was lodged and the case was entrusted to him for investigation.
PW-16 deposed that he sent the seized arms and ammunitions to FSL
Kahilipara. When the injured Nazur Islam was taken to the hospital, he was
declared dead by the Doctor. The PW-16 proved Exhibits 2, 3 and 4 as the
seizure lists by which the arms and ammunitions were seized by him. He also
proved Exhibits 2(4), 3(4) and 4(4) as his signatures thereon; he stated that all
the seized arms and ammunitions were seen before the Court. PW-16 also
proved Exhibit 11 being the extract copy of the Dhaligaon P.S GD entry number
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526 dated 17.10.2012, Exhibit 11(1) as his signature, Exhibit 12 as the sketch
map and Exhibit 12(1) as his signature in the sketch map. PW-16 further stated
that when he reached the P.O. there was sign of firing on the wall in the
corridor. He also found blood stains on the steps towards the house of deceased
Nazrul and his door step. He made several attempts to arrest the accused but
could not find him. He also proved Material Exhibit 1 as the weapon used in
commission of the offence and he found it on the bed of the appellant. He
deposed that he recorded the statement of the PW-11 who is the wife of the
appellant and was present in the house of the appellant at that time of
occurrence. After that he handed over the case diary to the O.C as he was
transferred. The PW-16 also stated that PW-11 stated before him that on the
date of occurrence there was a quarrel between her and her husband for which
she closed the door of her inner room and was teaching her children. At that
time her husband was watching the T.V in the front room. Suddenly she heard
the sound of firing and immediately after the sound her husband gave a blow
on the door and she opened it and her husband immediately kept his arms over
the bed and after that he fled away through the back door and at that time her
husband was wearing black pant and checked shirt.
PW-16 on being cross-examined stated that he found about 15 people when
he reached the P.O. He visited the quarter of the deceased but did not find
blood stains from the step till the quarter of the deceased. He did not search the
quarters of the other police personnel as they were unarmed constables and
they had no arms and ammunitions with them, he reiterated that the carbine
bearing registration No. 16086108 was issued to the appellant. PW-16 also
deposed that the PW-1 did not state before him that she saw the appellant
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firing at her husband when she was going downstairs on the staircase. PW-2
also stated before him that he saw Nazrul from some distance and he did not
state that he had seen the appellant with the carbine in his hand. He further
deposed that PW-2 stated before him that the deceased pointed towards the
house of the appellant. He also deposed that PW-3 did not state before him that
he saw the appellant along with the carbine and he also did not state that the
deceased had told them that the appellant had shot him. PW-16 further stated
that PW-8 told him that he saw blood stains at the P.O. which was the front of
the house of the appellant. He also denied the suggestion that PW-11 did not
state anything before him and denied that he wrote her statement himself. He
also denied the suggestion that nothing was seized from the quarter of the
appellant.
20. PW-17 is the ballistic expert and on 19.10.2012 he was working as Senior
Scientific Officer at FSL, Kahilipara. On that day he received a parcel in
connection with Dhaligaon P.S case No 174/2012 U/S 302 IPC [corresponding to
Section 103 of the BNS]. After opening the parcel he found the articles as
under:
(1) “1 (one) 9 mm calibre carbine machine gun registered No.16086108/1995
marked as Ex.A in the laboratory.
(2) 3 (Three) magazines loaded with 9 mm calibre cartridges marked as
Ext.B1, B2, B3 in the laboratory.
(3) 69 (sixty nine) rounds 9 mm calibre cartridges (59 numbers loaded in the
three magazines and 10 nos. in an extra packet) collectively marked as
Ext.C in the laboratory.
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(4) 1(one) 9 mm calibre fired cartridge case marked as Ext.D in the laboratory.
(5) 1(one) fired bullet of 9 mm calibre marked as Ext.E in the laboratory.
After examination I found the following result.
Ext.A is a 9 mm calibre carbine machine gun and it is a factory made gun.
Ext.A is found serviceable in its present condition.
Ext.B1, B2, B3 are magazines housed for 9 mm calibre cartridges. Ext.B1, B2,
B3 can be fitted in Ex.A.
Ext.C are 9 mm x 19 calibre live cartridges.
Ext.D is a 9 mm calibre fired cartridges case.
Ext.A has been test fired in the laboratory. The test fired cartridges case of
Ext.A have been compared with Ext.D under comparison microscope. The firing
pin impression of Ext.D and test fired cartilage cases of Ext.A are found similar.
Hence, it can be concluded that Ext.D was fired by Ext.A.
Ext.E is a 9 mm calibre fired bullet. Ext.E has been compared with the test fired
bullet of Ext.A but due to some extraneous marks on Ext.E opinion could not be
formed regarding its firing.
(To the Court) If fired bullet hit any hard substance, then, extraneous marks
can be found on fired bullet.
N.B. 3 (three) live cartridges from Ext.C have been consumed during the test
firing of Ext.A in the laboratory.
Ext.13 is my report. Ext. 13 (1) is my signature.”
In his cross-examination he stated that he did not find any extraneous
mark on the empty cartridge case Exhibit D He did not know if Exhibit E was not
fired from Exhibit A.
21. Shri Pratap Das Deputy Superintendent of Police was examined under the
provisions of Section 340 Cr.PC. [corresponding to Section 379 of the BNSS] and
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he deposed that he knows Zakir Hussain, who is havildar, armourer and
custodian of the records of issue and receipt of arms and ammunitions he stated
that Zakir Hussain was asked about manipulation in the arms and ammunition
issue register. When Zakir Hussain was explaining about the same he was also
present and stated that he had not done the manipulation as to the carbine
number issued to the appellant and said that the manipulation was done in
Court by the defence advocate.
22. The aforesaid materials in the form of the evidence read with the exhibits
were put to the appellant in his examination under Section 313 of the Cr.P.C.
[corresponding to Section 351 of the BNSS] wherein he had denied the
truthfulness and veracity of the testimony and claimed to be innocent. He had
also denied that the concerned 9 mm carbine was allotted to him or was in his
custody at the time of the incident.
23. After consideration of the evidence and the response by the accused –
appellant in his examination under Section 313 of the Cr.P.C., [corresponding to
Section 351 of the BNSS] the impugned judgment has been passed which is the
subject matter of challenge in the present appeal.
24. We have heard Shri A.K. Hussain, learned counsel for the appellant. We
have also heard Ms. A. Begum, learned Addl. Public Prosecutor, Assam.
25. Shri Hussain, the learned counsel for the appellant has submitted that
though as many as 17 nos. of witnesses were produced by the prosecution, the
accusation against his client could not be proved beyond all reasonable doubts.
Page No.# 20/27
By severely criticizing the claim of the prosecution that the informant who was
examined as PW-1 to be an eye witness, the learned counsel has submitted that
from the narration of facts, it is wholly improbable that the said PW-1 could
have actually witnessed the incident. It is submitted that admittedly, the place
of occurrence was in the corridor of the ground floor of a building in which the
PW-1, who is the wife of the deceased was residing on the 3 rd floor. He submits
that it is impossible for a person to witness the happenings in the corridor of the
ground floor while coming down by the stairs from the 3 rd floor and therefore,
the evidence of PW-1 is not trustworthy at all.
26. With regard to the aspect of dying declaration allegedly made by the
deceased before the PW-1, PW-2, PW-3 and PW-9, the learned counsel for the
appellant has submitted that by the nature of the injuries which was caused by
a bullet from a 9 mm carbine which had pierced through his body, it was highly
improbable that a person in that state would be in a position to utter anything.
He has submitted that the testimony of PW-1 is not trustworthy and so far as
the depositions of PW-2, PW-3 and PW-9 are concerned on the aspect of dying
declaration, the same is in the form of pointing out to the residential quarter of
the appellant which would not be safe to rely upon. Moreover, there are
contradictions on the said aspect which would appear from the testimony of the
I.O.s, who had deposed as PW-12, PW-13 and PW-14.
27. Shri Hussain, the learned counsel has also submitted that the prosecution
could not prove beyond all reasonable doubt that the appellant was indeed
allotted the carbine used for commission of the offence. It is submitted that the
seizures were not done in accordance with law and the seizure lists, namely,
Page No.# 21/27
Exhibits 2, 3 and 4 pertaining to the arms and ammunitions seized are full of
discrepancies. He has also highlighted the aspect of over writing in the carbine
number which was sought to be proved from the Malkhana Register (Exhibit 5).
He has submitted that when there was doubt with regard to the weapon which
was allotted to the appellant and the weapon which was allegedly used for the
commission of the offence, the complicity of the appellant could not have been
established.
28. The learned counsel has also submitted that there was no motive
established by the prosecution and in absence of the same, the chain of
circumstances leading to the conclusion of involvement of the appellant cannot
be said to be complete. He has submitted that there are materials on record
that the relationship between the parties was cordial. In this regard, he has
drawn the attention of this Court to the cross-examination of PW-1, who is the
wife of the deceased that they did not have any quarrel with the appellant. He
has also submitted that the evidence of PW-17 who is the Sr. Scientific Officer
cannot be held to be conclusive inasmuch as the fired bullet which was
recovered from the place of occurrence could not be linked with the seized
carbine.
29. In support of his submissions, the learned counsel for the appellant has
relied upon the following case laws:
(i) (2002) 6 SCC 710 [ Laxman vs. State of Maharashtra]
(ii) (2018) 7 SCC 536 [Kumar vs. State]
(ii) (2019) 6 SCC 535 [Ashoksinh Jayendrasinh vs. State of Gujarat.]
Page No.# 22/27
30. In the case of Laxman (supra), the aspect whether the deceased was in
a fit state of mind to make a dying declaration has been explained. The case of
Kumar (supra) has been cited to bring home the importance of motive in the
commission of an offence wherein it has been laid down that when the evidence
is circumstantial in nature, motive would form one of the circumstances. The
case of Ashoksinh (supra) has been cited on the aspect of the evidentiary value
of the opinion of a ballistic expert.
31. Per contra, Ms. Begum, the learned APP has supported the impugned
judgment and has contended that the same has been passed by taking into
consideration all the relevant materials. She has submitted that apart from the
other evidence which are consistent, there is a direct evidence in the form of
eye witness which was adduced by PW-1.
32. The learned APP has submitted that the version of the PW-1 is trustworthy
and believable. Though the residential quarters of the deceased and his family
was on the 3rd floor of the building, it is on record that when the deceased used
to return from office in his motorcycle, the PW-1 used to go down to receive
him and bring the marketing bag from him. She had deposed that as usual, on
the fateful day, on her husband reaching the building and stopping his
motorbike, she had come downstairs while her husband was climbing up and at
that moment the appellant had come out with a carbine in his hand and shot
her husband from behind. The learned APP has submitted that the aforesaid
version has remained unshaken in the cross-examination.
Page No.# 23/27
33. With regard to the dying declaration, the learned APP has submitted that
PW-1 had clearly stated that the deceased before his death had told her twice
that it was the appellant who had shot him and the bullet had pierced the body
of her husband and exited through his chest. Such dying declaration was also
proved by PW-2, PW-3 and PW-9. It is submitted that PW-2 and PW-3 had
clearly stated that the appellant had fired on him and had also pointed towards
the door of the quarter of the appellant. Further, the suggestions to the contrary
given to them in cross-examination were also negated.
34. Similarly, PW-9 had also clearly stated that he reached the place of
occurrence as his quarter was also in the same police reserve and on reaching,
he found the deceased lying injured with a bullet wound on his chest and he
had pointed to the quarter of the appellant.
35. The rival submissions have been duly considered and the materials,
including the TCRs placed before this Court have been carefully examined.
36. First let us deal with the testimony of PW-1 and her claim to be an eye-
witness. She had clearly deposed that on hearing her husband coming from
duty by his motorcycle, she had come to the ground floor to carry the shopping
bag, which was a daily routine and her husband was climbing up. At that
moment, she witnessed the appellant firing upon her husband with a carbine.
Apart from the said version remaining unshaken in the cross-examination, the
suggestion given to her that such statement was not given to the police has
been denied. Therefore, there is nothing to disbelieve the testimony of PW-1.
Page No.# 24/27
37. Section 32 of the Indian Evidence Act [corresponding to Section 26 of the
BSA] deals with statements by persons who cannot be called as witnesses. The
aforesaid Section lays down that such a statement would be relevant which is
made by a deceased with regard to the cause of his death. For ready reference,
Section 32 (1) is extracted herein below:
“32. …
(1).When it relates to cause of death. – When the statement is made by a
person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question.Such statements are relevant whether the
person who made them was or was not, at the time when they were made,
under expectation of death, and whatever may be the nature of the proceeding
in which the cause of his death comes into question.
…”
38. In the present case apart from the evidence of PW-9 who had deposed of
the deceased pointing out to the quarter of the appellant, there exist three
other testimonies of PW-1, PW-2 and PW-3 that the deceased before his death
had told them that he was shot by the deceased, and the contrary suggestion
given by the defence was also negated.
39. We have also seen that the witnesses had deposed that immediately after
the incident, the appellant had bolted his door from inside and did not open the
same and in the meantime, had fled away. However, upon arrival of the police, a
search was made in the quarter of the appellant and there was a seizure of a
9mm carbine with 69 rounds of ammunitions which were proved by the
Inspector of Arms Branch as PW-5. The Malkhana Register was also seized and
proved as Ext. 5 as per which 70 rounds of ammunitions were issued to the
Page No.# 25/27
appellant and 1 round was found short. PW-5 had also proved the empty case
of the 9mm cartridge from the place of occurrence which was seized and proved
as Ext.2. The fired cartridge was also recovered from the place of occurrence
which was seized and the seizure list was proved as Ext.3. We have also
carefully examined the evidence of the Sr. Scientific Officer who had deposed as
PW-17. He had opined that the fired cartridge (Ext. D) was fired by the 9mm
carbine (Ext.A) which was recovered from the quarter of the appellant. PW-17
had also explained in his cross-examination that so far as the fired bullet was
concerned, the same could not be matched with the carbine as there were
extraneous marks on the same. In this connection, we have also examined the
testimony of PW-6 who had deposed of witnessing a mark of firing on the wall
of the place of occurrence and upon a search made on the instructions of the
DSP, the fired bullet was found.
40. There is an argument developed on the aspect of certain discrepancy in
the no. of the carbine issued to the appellant. In this regard, it would be
relevant to refer to the evidence of the concerned DSP who was examined
under Section 340 Cr.PC. [corresponding to Section 379 of the BNSS] who had
deposed that as per the armourer and custodian of the records of issue and
receipt of arms and ammunitions, the manipulation was done in court by the
defence advocate. We have also verified from the records and it clearly appears
that an over writing is there regarding the last digit of the no. of the carbine.
We are of the view that the aforesaid aspect would not, by any manner be
regarded as a lacuna in the prosecution case as the other proved materials
including the aspect of finding one ammunition short out of the total 70 nos. of
ammunitions allotted to the appellant would clearly establish that the bullet and
Page No.# 26/27
the empty cartridge recovered from the place of occurrence were indeed fired
from the carbine issued to the appellant.
41. As regards the argument that there was no quarrel between the parties
and therefore, motive cannot be readily attributed, we are of the opinion that
when there is eye witness, there may not be a strict requirement to prove
motive. In this connection, it would be relevant to refer to the case of Chandan
vs. State of Delhi reported in (2024) INSC 271, wherein the Hon’ble
Supreme Court has made the following observations:
“5. The argument of the defence that the prosecution has not been able to
establish any motive on the accused for committing this dastardly act is in fact
true, but since this is a case of eye- witness where there is nothing to discredit
the eye-witness, the motive itself is of little relevance. It would be necessary to
mention some of the leading cases on this aspect which are as under:
In Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55, it was held
that it is a well-settled principle in criminal jurisprudence that when ocular
testimony inspires the confidence of the court, the prosecution is not required
to establish motive. Mere absence of motive would not impinge on the
testimony of a reliable eye-witness. Motive is an important factor for
consideration in a case of circumstantial evidence. But when there is direct eye
witness, motive is not significant. This is what was held:
“In case the prosecution is not able to discover an impelling motive, that could
not reflect upon the credibility of a witness proved to be a reliable eye-witness.
Evidence as to motive would, no doubt, go a long way in cases wholly
dependent on circumstantial evidence. Such evidence would form one of the
links in the chain of circumstantial evidence in such a case. But that would not
be so in cases where there are eye-witnesses of credibility, though even in such
cases if a motive is properly proved, such proof would strengthen the
prosecution case and fortify the court in its ultimate conclusion. But that does
not mean that if motive is not established, the evidence of an eye-witness is
rendered untrustworthy” The principle that the lack or absence of motive is
inconsequential when direct evidence establishes the crime has been reiterated
by this Court in Bikau Pandey v. State of Bihar, (2003) 12 SCC 616; Rajagopal v.
Muthupandi, (2017) 11 SCC 120; Yogesh Singh v. Mahabeer Singh, (2017) 11
SCC 195.”
Page No.# 27/27
As we have already held earlier, the testimony of PW-1 appears to be
trustworthy and consistent with the testimonies of PW-2, PW-3 and PW-9 who
had reached the place of occurrence immediately and found the deceased
grievously injured and PW-1 was with him.
42. In the conspectus of the aforesaid discussion and the materials on record,
we are of the view that the conclusion arrived at by the learned Sessions Judge,
Chirang in convicting and sentencing the appellant in Session Case No.79/2015
corresponding to Dhaligaon P.S Case No.174/2012 vide judgment & order dated
21.06.2022 does not warrant any interference.
43. The appeal accordingly stands dismissed.
44. Send back the TCRs.
JUDGE JUDGE Comparing Assistant
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