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Judgment
V.D. Gyani, J.—This appeal is directed and arose out of the judgment dated 30.12.91 as delivered by the Sessions Judge, Manipur (West) in Sessions Trial Case Nos. 46/89, 1/89, 30/90, 11/90 and 80/90 holding the Appellant Oinara Kullabi Singh guilty of offence punishable u/s 302 IPC and sentencing to under imprisonment for life. The accused Appellant was tried along with two others namely, Oinam Chandra Kumar Singh and Oinam Chandrajit Singh who have been acquitted by the trial Court, against which an appeal against acquittal has been preferred by the State of Manipur. Since both these appeal arise out of the same judgment, they are been heard together and are being disposed of by this common judgment.
Prosecution story stated in brief was that on 8.10.85 in the morning around 9/10 a.m. there was a scuffle between S.I. of Police Meidonlung Kabui and accused Appellant, a constable who refused to join fatigue duty. They were about to come close. The accused Appellant having made it clear that he would take no order except from Chandra Kumar Singh, the acquitted accused, who sided the Appellant. This fatigue duty had become necessary in order to make preparation for the coming visit of the Inspector General of Police to Tamenglong H. Q. on 13.10.85. After the above incident everybody was in their own quarters in the Reserve line. It is alleged that accused Ibomcha Singh (deceased) came to S. I. Meidonlung to obtain his signature on a Command certificate, which he refused for want of Command book and for not following the procedure. It was at this point that Ibomcha Singh challenged S. I. Meidonlung for a physical bout and both of them came out in the open but some constables intervened. Around 7 P.M. on the same day S. I. Meidonlung and the accused Appellant Kullabi Singh along with one constable Maicharung had drinks and some pork. While sharing drinks it was proposed that the incident of quarrel which took place in the morning better be compromised, to which the accused Appellant replied that compromise can only be made only at the place of Chandra Kumar Singh where a drink party was going on at that time. So, both of them, Meidonlung and Kullabi Singh left for the room of Chandra Kumar Singh. Around 8.30 p.m. in the neight PW 15 Bathumang Pongmei, a Video a video operator at the club while returning after a video Show saw 4 accused persons carrying another in their hand near the police line. On making enquiry, accused persons threatened him with a stick. So, he fled away. Hearing a screeming sound, Asha Mao PW 7. Anna Rongmei PW1, Samual Tangkhul PW20 and Benoy Singh, a Rifleman went out to see as to what happened. They moved in the direction wherefrom the screaming was heard. They saw Meidonlung S. I. was lying in the Nullah on the foot-hills near the Reserve Line. He could not speak. He was brought to the varandah of Constable Meicharung Kabui PW6. They attended him on the night and on the morning he was carried to the District Hospital and on the following day he was taken to the Regional Medical College hospital for better treatment but he expired without gaining consciousness. The Medical examination reveals that a number of ribs were broken and his death was quite unnatural. The matter was reported to the Police. Initially, the S.D.P.O. Tamenglong investigated the case under FIR 58 (10) 85 registered u/s 302 IPC. It was thereafter transferred to D.S.P., Crime Branch. A test identification parade was held. During investigation the accused persons are claimed to have been identified by the witnesses. On completion of investigation, accused Appellants along with two others were chargesheeted and tried for the above offence. The trial Court while acuqitting other two accused, has convicted the present Appellant.
I first take up the appeal against conviction preferred by accused Kullabi Singh as decision in this appeal, would substantially cover the evidence part of the case against each of the accused and would facilitate disposal of the State Appeal against acquittal as well.
The following pieces of circumstantial evidence have been pressed into services and relied upon by the trial Court for basing the order of conviction. These circumstances are:
(1) A dispute/quarrel between the deceased and the accused, O. Kullabi Singh and Ibomcha Singh (now deceased) in the morning an evening of the day of occurrence.
(2) The accused O. Kullabi Singh as the last seen person of the deceased by taking out the deceased from the quarters in the night of the occurrence.
(3) Test Identification parade; and
(4) The absence of the accused soon after the occurrence from Tamenglong.
learned Counsel for the accused-Appellant submitted that these circumstances even if taken on their face value as correct, yet do not unerringly point to the accused-Appellant as the perpetrator of the crime. According to him the circumstances last seen together is by itself a very weak type of circumstance. One cannot ignore the fact that both the accused and the deceased were enjoying their health by sharing drinks. If there had been any animus on the part of the accused Appellant, he would not have come to share and enjoy the drinks. It is not the prosecution case that the arrangement for drinks in the evening was the result of conspiracy. There is a long time gape between the last seen '' an the hearing of dragging out of the injured. They are under fatigue duty and the resultant announce of the saying is nothing new in a police line, it is the usual feature in a disciplined uniform force. Dealing with the circumstantial evidence the Supreme Court as back as in 1952 in Hanumant Vs. The State of Madhya Pradesh, has pointed out:
In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt s to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
Few prominent facts need be noted first before dealing with the above circumstances. The incident of alleged assault took place on 8.10.85. The FIR Ext-1 was lodged on 26.10.85, more than a fortnight of the incident. A mere reading of Ext. P-l would reveal that it is the result of investigation, the inquest, post mortem examination had all been done. By no stretch of imagination can this Ext.P-1 be treated as an FIR within the meaning of Section 154 Code of Criminal Procedure. It came to be lodged on the fifth day of death of S.I. Meidulung Kabui, much water had flown under the bridge by this time.
Initial picture of the prosecution story is presented by PW-1 and 2 who are husband and wife, the former runs a panshop near the reserve line, while her husband PW 2 is serving as a Rifleman. According to them on the date of incident ( i.e. on 8. 10. 85 ) around 6 P.M. SI Meidulung came along with two Constables to the pan shop, they purchased Cigarettes and pan. Who were these two Constables ? Have not been named by the PW 1. It was around 8.30 or 9 P. M. by that time PW 2 had also returned home from his duty. Both of them had retired to bed. suddenly PW 1 heard Samuel knocking at the door. She opened the door to find him carrying Meidulung. Refleman Benoy Singh and another Rifleman were bodily carrying Meidulung. She is categorical that the Superintendent of Police also visited her place who carried the injured in his jeep. Her husband also went along with others.
On her inquiry as to what had happened to Meidulung she was told that they found him lying on the I. T. Road. She had no occasion to meet Meidulung''s wife nor did she narrate the incident to any of his relations.
She could not say if Meidulung was smelling of alcohol although her husband PW2 has admitted the fact that towards the hillside about 20 ft from the ground level just above the Nullah, where Meidulung was found lying, one Rongmei used to sell country liquor. In order to establish that the accused Appellant was last seen together with the deceased, it is not the incident in the manner or sharing drink and dinning in the evening which is important. The deceased had gone upto the Panshop of PW1 and there is some suggestion in her evidence that S. I. Meidulung had come to her shop along with other police constables. He purchased cigarettes and pan and left the place. Now, who were those two constables ? That was not named. But PW7 Asha Mao, who is the wife of Constable Meicharung Kabui PW6, provides a clue. Even according to PW1 Meicharung''s wife had come to her shop for purchasing a pan and PW7 also testifies to the effect that she was asked by her husband to bring a pan for him. She is a witness who is closely related to the deceased who was elder brother of her husband PW6. Her evidence, therefore, assumes importance.
Describing the heavy dose of liquor which her husband, the deceased brother-in-law and the accused Appellant had after a heavy meal, on being confronted with her previous statement, she admitted that the deceased was heavily drunk as it appeared from his appearance and she found that he had consumed liquor by pouring from the bottle which he had brought with him. After consuming about one glass, he went to bed. About Meidulung''s going out, her evidence is:
At about 7 P.M. Meidulung proposed to Kullabi Singh for compromise of the quarrelling which took place in the morning. The said proposal was done in his own room which I heard from my own room. Kullabi Singh replied that the compromise should be done at the residence of Constable Chandra Kumar Singh the accused where a party was going on i.e. some persons were enjoying drink. Kullabi Singh also said that they should go there and take part in the party and then would come back. Soon after both of them left the room of Meidulung and had gone out down the hill. After about half an hour the accused Kullabi Singh came back alone to our room. I asked him as to where Meidulung was left behind or had gone and he replied that he had gone further down the hill. Then I asked him to dine together with us and accordingly my husband, he an I had taken our respective meal in our room. Kullabi Singh after finishing his meal, had gone out with the untensils namely dish and drinking for Kujai and then he disappeared from our quarter. When I went outside I could not see him present there or in his room which in the same quarter. I do not know where he had gone out.
Thereafter my husband asked me to fetch some Pan from the nearby Pan Dukan and accordingly I went to the said Pan Dukan which was also found still open. One woman was the keeper of the said Pan Dukan.
It is evident from her statement that so far as accused Kullabi Singh is concerned, he was not with the deceased when he went to the Panshop and purchased Cigarettes and Pan from PW1. The evidence of PW4 Havildar Madhumangal Singh is to the effect that:
I escorted Meidulung Kabui upto his quarter and there we two parted from him. Constable Iboton Singh and I also came back together and we also departed from his other and went own respect quarter. On the next following day I heard that the said Meidulung Kabui was found lying injured on the road side near a pan Dukan....
It would be a little more than half past six when Iboton and I had left him (SI Meidulung Kabui) in that night in the course of our said escorts.
The above is the proximation of timing when the deceased went to the Pan Shop and here again the accused Appellant Kullabi Singh is not mentioned.
Let us now see the evidence of PW 5 who has stated:
It was about 7 P.M. at that time. Madhumangal Singh and I thought that it would be unsaved for Meidulung to go to his quarter alone and therefore Madhumangal and I accompanied Meidulung on his way to his quarter. After proceeding about 300 feet we reached a Pan Dukan which was still opening and there we found some 2 or 3 boys present and Somon a peon of the Public Telegraph Centre was among them. Meidulung proposed to buy some cigratte from the said Prai Dukan and accordingly he purchased a packet of cigarette Charms and I also purchased a packet of Navy the cigarette and thereafter we 3 left the said Pan Dukan and proceeded towards the quarter of Meidulung. When we reached the quarter of Meidulung it would be about 7 P. M. On arrival at his quarter we parted from Meidulung and leaving him behind at his quarter Madhumangal and I had come back for our own respective quarter. I know nothing more than this.
It is significant to note that the accused Appellant Kullabi Singh who has been convicted on an incriminating circumstance of being last seen together, was in fact not seen even by the PW5.
Now, PW6 who is the younger brother of the deceased and husband of PW7 has deposed:
Meidulung S.I. died in the year 1985, but I do not the cause of his death.
....
I got the said information from Somen at about 8 or 8.30 P.M. on 8.10.85, when I was living alone in my room in the said quarter. I do not know anything as to how and why Meidulung dies, and so I do not know anything regarding cause of his death.
In the same vein, his wife PW7 has also stated:
I tried to ascertain as to how Meidulung was found lying in the said nulla and as to why he was found in that condition from those people living in the surround of our quarter. Everybody whom I contented to know the real facts of the case told me that he or she had no knowledge about it and as such, I do not know what are the real facts of the occurrence.
The law relating to substantial evidence particularly, the circumstance of having last seen together, as already been noted above, reference can well be made to Hanumant Vs. The State of Madhya Pradesh, and added to it one can also refer to Sharad Birdhichand Sarda Vs. State of Maharashtra, and Jaharlal Das Vs. State of Orissa,
The learned trial Judge has come to the conclusion that accused Kullabi Singh was last seen with the deceased and it is mainly on the basis of evidence of PW6 Maicharung and his wife PW7 Asha Mao. What the learned trial Judge has missed is the statement of PW7 to the effect, that after taking drinks together (the deceased, the Appellant and PW6) the deceased and the Appellant left the room, the accused Appellant returned after a while. It is at this stage, that the evidence of PW 1 comes into play. The deceased purchased cigarettes and Pan from her shop, she does not say that the Appellant was with him although she has named one Benoy Singh who accompanied the deceased. She is also the wife of a constable. If the accused Appellant was there she could as well have named him. While PW 15 was called at the test identification parade, for whatever worth it is, PW 1 was not even called at the parade otherwise she could have at least recognised the Appellant by face if she did not know him by name. What has weighed with the learned trial Judge is the fact that the Appellant was reported to be absconding. (See para 42 of the impugned judgment), but this fact of abscondence had not even been put to the accused as an incirminating circumstances against him, in his examination u/s 313 Code of Criminal Procedure. As has been pointed out by the Supreme Court that mere absconding by itesle does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is not doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than quilt of accd. AIR 1971 SC 1050 also see. Chandu alias Chandrahas Vs. State of Madhya Pradesh,
Now coming to the test identification parade here again the learned Judge has concluded that there was no flaw in the T. I. Parade overlooking certain inherent infirmities, attached to it. The Appellant was arrested on 25.11.85. It is not as if he was not available all these days. He was very much in the Reserve line. There is not an iota of evidence to suggest that any precaution was taken to see that the Appellant and for that matter other accused as well, were not exposed to the view of the witness who was supposed to identify the accused at the parade. The time gap is too long, 2 months and five days after incident and on twentieth day of arrest. At least after receiving the post mortem examination report it was clear that it was a case of murder and accordingly registered. PW 13, S.D.P.O. was investigating the case, and had examined as many as 9 witnesses, there-after the investigation was transferred to C.I.D., Crime Branch. PW 21, M. Mani Singh took up investigation who also examined a good number of witnesses. During all these days what precautions were taken to prevent the exposure of the suspects to the view of prospective witnesses ? Mere vivid description of the parade proceedings does not make it reliable. The Supreme Court in Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi Vs. State of Mysore, has held:
The learned Counsel challenged the identification parade held by PW 31, Taluka Magistrate, as being unreliable, The trial Court was of the view that it cannot be said from the evidence on record that the witnesses had no opportunity to see the accused till they identified them in the identification parade held in the jail. There is no evidence worth the name adduced by the prosecution to show that precautions were taken and if at all any precaution was taken to see that the witnesses either did not see the accused or they had no opportunity to see them before the identification parade. The learned Counsel was justified in his comment that the second accused was arrested a few days earlier and that he was in police custody and that he was produced before the Magistrate for remand and that there is nothing in the Panchnama prepared by the Taluka Magistrate to show that either he questioned the accused if he himself questioned the witnesses if they had seen the accused. The High Court rejected the evidence regarding identification of A-3. Considering all the circumstances we think much reliance cannot be placed on the indentification parade regarding the establishment of the identity of the third accused.
Even after having arrested the Appellant on 25. 11.85 why the T. I. Parade was not immediately held ? It was postponed till 13.12.1985.
It is significant to note the PW who conducted the T.I.P. has testified about the distinguishing marks of the accused to quote in his own words " Before the T.I. Parade was made, I informed the 2 accused persons that both of them were required to be identified from amongst the under trial prisoners to be paraded there by one witness who voluntered that he could identify both of them from the parade as the culprits of this case. I also made the accused persons known the opportunity of covering the distinquishing marks of their faces with piece of papers. I also informed that they also had the opportunity changed their dresses. But they refused to change the dresses and they also refused to get their distinguishing marks to their faces covered with piece of papers. I also suggested to one of the accused persons having moustaches to get the same or covered with piece of paper. To that also the accused person having moustache''s refused to my proposal I then asked the two accused persons to stand at any position they liked at the T.I. Parade."
It is clear that the accused had prominent distinguishing features. What is surprising is that there is not even a whisper in the evidence of the identifying witness, PW 15 on what basis particular identifying mark he was going to identify the accused.
Also have a look where this witness was and who was accompanying him. To quote again PW 1.9 " I then enquired of some of the members of the S. P.''s office staff as to whether the witness who was going to identify the accused persons at the T.I. Parade was already present or not at the jail premises. I was then informed by some of the staff members of S.P.''s office that the witness who had to identify the accused persons at the T. I. Parade was already present outside the S.P.''s office along with the I.O. of the case."
The particular circumstances of having last seen together, it has been recorded as weak type of evidence (See AIR 1979 SC 1620, Thimma and Thimma Raju Vs. State of Mysore, Thimma v. State of Mysore.) In view of the above discussions, the circumstances of being last seen together cannot be said to be firmly established. The incriminating circumstance of alleged abscondance has not even been put to the accused although used against him in the T.I.P. suffered from inherent infirmity inasmuch the bare minimum necessary precaution required to be taken, were not taken at all. The conviction, therefore, as recorded by the trial Court stands on quick-sand is liable to be quashed and accordingly quashed. The accused Appellant is acquitted of the charge framed against him.
Now coming to the State appeal, the evidence as already discussed above has rightly been rejected by the trial Court against the acquitted accused. The acquittal as recorded by the trial Court, proceeded on appreciation of evidence. The Supreme Court in Tota Singh and Another Vs. State of Punjab, has pointed out as under:
This Court has repeatedly pointed out that the mere fact that the appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence added in the case and the Court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.
Following the same, we do not find any justifiable ground for interference with the acquittal as recorded by the trial Court. The State appeal is, therefore, liable to be dismissed and accordingly dismissed.