Puno Chandro vs State of Mizoram

Amitava Roy, J.—Being aggrieved by the judgment and order dated 10.12.2010 passed by the learned Addl. District & Sessions Judge, Lunglei Judicial District, Lunglei in Crl. Tr. No. 139/2009 convicting him under Section 302 and 201 of the Indian Penal Code (hereinafter for short referred to as the IPC) and sentencing him to life imprisonment for murder as well as imprisonment for two years as well as fine of Rs.10,000/ in default to undergo S.I. for another ten months for the offence under Section 201 IPC.

We have heard Mr. H. Lalrinthanga, learned counsel for the appellant and Mrs. Dinari T. Azyu, learned Public Prosecutor, Mizoram for the respondentState.

The records reveal that on a verbal information made by one Shri Khuchauha with the Lawangthai Police Station on 18.10.99 alleging that one Shri Moturi and Shri Asazoma who had gone to Bangladesh for selling animal hide had not returned as they had been assaulted to death by BNLF led by the accusedappellant in the jungle near Dunzanthang village, the OfficerinCharge of the said police station Shri Lalramtana made preliminary investigations and lodged a formal FIR on 03.11.99. On this, Lawangthai Police Station Case No.31/99 U/s.302/201/506/34 IPC, R/w Section 25(lB)(a)/27A of the Arms Act was registered. On the completion of investigation, on 15.09.2000 a chargesheet was laid against the accusedappellant U/s.201 IPC. This document revealed that in all eight witnesses had been interrogated including one Shri Puno Chandro @ Khuchauha and Dr. F. Vanlalthlamuana who had performed the postmortem examination on the dead body of Moturi.

In course of the investigation, according to the prosecution, the confessional statement of the accusedappellant under Section 164 Cr.P.C was also recorded.

At the trial, charge was framed against the accusedappellant under Sections 302 & 201 of the IPC and the same being explained to him, he denied the correctness thereof. The prosecution thereafter, examined 5 witnesses. After the recording of the evidence of the witnesses for the prosecution, the statement of the accusedappellant under Section 313 Cr.P.C was recorded, in course of which he totally denied the charge levelled against him and also his alleged complicity in the offence. The learned trial Court however on a consideration of the materials on record, by the impugned judgment and order convicted and sentenced the accusedappellant as hereinabove.

Before analysing the arguments advanced on behalf of the parties, it would be appropriate to make a brief survey of the evidence on record. Admittedly Shri Puno Chandro @ Khuchuha on whose verbal information the investigation was initiated has not been examined by the prosecution at the trial. His statement under Section 164 Cr.P.C was also not proved.

PW2 Shri Deshoha, in his examinationinchief expressed ignorance about the identity of the person who allegedly had murdered Moturi and Asazoma. This witness stated on oath that he had been assaulted by the police to elicit what he had stated before it. The prosecution declared this witness to be hostile. In crossexamination, thereafter this witness deposed that Moturi was present at the time when one B. Sangtawna was murdered and that the accusedappellant was the assailant. According to him, as Moturi had the knowledge of this incident he was subsequently murdered by BNLF. In crossexamination this witness reiterated his ignorance about the involvement of the accusedappellant in the murder of Moturi and Asazoma.

PW Mr. T.H. Vanlalhruaia, who in the month of October, 1999 was the 2nd OfficerinCharge of Lawngtlai Police Station had deposed that one Khuchuha on 18.10.99 had visited the police station and reported that Moturi and Asazoma, who had gone to Bangladesh to deal in animal skins had not returned and in fact had been beaten to death by BNLF led by the accusedappellant in the jungle near Dumzautlang village. This witness endorsed a preliminary enquiry and whereafter a police case was registered on 03.11.99. In course of further investigation that followed, according to this witness, he arrested the accusedappellant on 28.04.2000 who admitted before him of having committed the offence of murder of Moturi and Asazoma by beating them with bamboo sticks. This witness also stated that on this disclosure made by the accusedappellant, in course of the investigation he visited the place of occurrence and exhumed the dead bodies of the aforenamed two deceased persons in the presence of a Magistrate following which postmortem examination was conducted by Dr. F. Vanlalthlamuana on 20.05.2000. This witness also exhibited the inquest reports, Ext2(a)(b) and Ext2(c)(d) visavis the two dead bodies. According to him, he could not complete the investigation, as meanwhile he had been transferred to Champhai District.

PW Shri Lalramtana, S.I. of Police stated about the steps taken by him at the first instance on receiving the formal information about two dead bodies discovered at Dum/autlang village. He stated that though he took preliminary steps he did not conduct the investigation in full which was done by S.I. Vanlalhruaia. This witness stated that he was thereafter transferred from the said police station. In crossexamination this witness disclosed that during his term of investigation, he did not come across any eye witness to the incident.

Dr. F. Vanlalthlamuana, who performed the postmortem examination on Moturi, stated on oath that at the time of autopsy, this dead body was in decomposed state and skeletons only were in existence. This witness opined that no obvious reason of death could be ascertained from the skeletons. He however mentioned about a fracture of the left temporal bone. According to him, the fracture might have been the cause of the death, as no other injury was ascertainable. In course of crossexamination this witness conceded that he could not ascertain as to whether the fracture in the left temporal bone was antemortem or postmortem.

PW Ram Prakash, S.I. Lawngthlai Police Station completed the investigation otherwise conducted by S.I. Mr. ST. Vanlalhruaia and stated that on the basis of the materials collected, a chargesheet was laid under Section 201IPC against the accusedappellant. He proved the chargesheet, ExtPVI. As referred to hereinabove, the records contained as well a confessional statement of the accusedappellant recorded under Section 164 Cr.P.C.

Mr. Lalrinthanga has argued that in absence of any evidence worth the name establishing a nexus between the accusedappellant and the offence of which he had been charged, the impugned judgment and order is patently illegal and is liable to be interfered with. He asserted that the prosecution has totally failed even to establish the identity of the dead bodies and in absence of any seizure proving the complicity of the accusedappellant in the offence, the learned trial Court had erred in law and on facts in convicting and sentencing him. The learned counsel has also questioned the probative value of the socalled confessional statement of the accusedappellant in absence of any inculpatory statement involving him. According to him, the prosecution case is wholly unworthy of any credit and therefore the impugned judgment and order ought to be set aside.

The learned Public Prosecutor, in reply has submitted that a bare perusal of the statement of Puno Chandro @ Khuchauha recorded under Section 164 Cr.P.C would prove the charge framed against accusedappellant to the hilt and thus the impugned judgment and order cannot be faulted with. While admitting that the prosecution had failed to examine this eye witness, the learned Public Prosecutor has contended that it is a fit case for remand the examination of this witness in the interest of justice. She further argued that a conjoint consideration of other materials on record even otherwise establish the charge against the accusedappellant and thus no interference with the impugned judgment and order is warranted.

We have carefully analysed the arguments advanced. To start with, the statement of the accusedappellant, whereby according to the prosecution he had confessed his guilt can by no means be considered to be a confessional statement contemplated in law. There is no averment therein whereby the accusedappellant had admitted either his guilt or his association with the offence with which he had been charged. This statement is thus of no utility for the prosecution case in support of the charge. Admittedly, neither Shri Puno Chandro @ Khuchauha claimed to be an eye witness had been examined by the prosecution nor his statement under Section 164 Cr.P.C. has been proved in accordance with law. However, considering the insistence on the part of the learned Public Prosecutor, we have perused the said statement and are of the view that even if the same is accepted on its face value, it does not prove the charge framed against the accusedappellant by any conceivable standard. The prayer for remand, therefore is untenable.

In the above factual premise it is permissible to proceed on the basis that there is no eye witness to the incident. The evidence of PW2 is of no relevance for the prosecution visavis the charge. The testimony of the investigating officers though indicate amongst others of the factum discovery of the bodies, exhumation thereof and the conduct of postmortem thereon, the same per se does not prove the culpability of the accusedappellant. The evidence of Dr. F. Vanlalthlamuana noticeably is confined to only the deceased Moturl and does not extend to Asazoma. The inquest reports though indicate the bodily state of the deceased persons, the same as well do not unerringly point to the guilt of the accusedappellant. Admittedly, no seizure has also been made by the investigating officer to establish an unmistakable link between the offence and the accusedappellant.

On a totality of the revelations as above from the evidence on record, we are constrained to hold that the prosecution has failed to prove the charge against the accusedappellant. The learned trial Court in our opinion had fallen in error in the analysis of the evidence on record to return a finding to the contrary. There is no evidence cognizable in law to hold the accusedappellant guilty of the charge either under Section 3 02 or 201 of the Indian Penal Code. The impugned judgment and order is therefore set aside. The accused appellant is set at liberty forthwith. Since the accusedappellant is in custody, as on date, the Registry would take immediate steps for his release in terms of this decision. The appeal is thus allowed. No costs.