Sh. Lalrochhunga. vs State of Mizoram

Michael Zothankhuma, J.(CAV) - The present appeal has been filed against the Judgment and Order dated 22.01.2013, passed by the Addl. Session Judge-I, Aizawl in Criminal Trial No. 1395/2010, arising out of Bawngkawn Police Station Case No. 233/2010 under Section 302 IPC r/w Section 25 (1B)(a) Arm Act.

The appellant, by way of the impugned Judgment & Order dated 22.01.2013, has been convicted and sentenced to undergo Rigorous Imprisonment for life with a fine of Rs.5000/- i.d., RI for 6 months under Section 302 IPC. The appellant has been convicted and sentenced to undergo a further period of 1 year RI under Section 25 (1B)(a) Arm Act. The sentences are to run concurrently.

The prosecution story of the case in brief is that:-

On 29.05.2010, an FIR was lodged by VL. Hmangaiha of Ramhlun Vengthar with the OC, Bawngkawn PS, to the effect that on the evening of 24.05.2010 @ 3:00 pm, some farmers of Thingsulthliah who were returning from their jhum cultivation, had found Lalawmpuii (48) D/o Lalliani of Thingsulthliah lying dead in a pool of blood, at her jhum cultivation, located at Tuichung forest area, about 2 kms away from Thingsulthliah village. The deceased had severe head injury on her left temple, across the right ear. The dead body was buried on 25.5.2010, believing it was an accident. However, the injuries on the deceased having been noticed prior to the burial and it was later learnt from some villagers that on that particular day, someone saw a man with a gun, in and around the place where the dead body was found and heard the sound of gun fire, which raised a suspicion that he had caused the death of the deceased Lalawmpuii. Hence, BKN PS C/No, 233/2010 dated 29.5.2010 u/s 302 IPC was registered and duly investigated.

During investigation, the PO was visited. During the course of investigation, the alleged weapon SBBL 12 bore shotgun with 5 rounds live ammunition of SBBL gun were seized from C. Zothanpuia member, Village Council Court, Tlungvel village which were recovered from the possession of appellant Lalrochhunga (25) S/o Tawklala of Saililak, Dist., Serchhip, while nabbing him at the vicinity of Tlungvel village in presence of two reliable witnesses.

During investigation, as per the order passed by District Magistrate, Aizawl District, exhumation of the dead body of Lalawmpuii was done by Dr. H. Saithanliana, qualified Medical Officer on 2.6.2010 at the cemetery of Thingsulthliah village, on being identified by Pu Nhaihlira, VCP, Thingsulthliah in the presence of Pu C. Lalsangluaia, Executive Magistrate, BDO Thingsulthliah. The victims finger nails, breasts swab, vaginal swab, pubic hair, a piece of skin site of the entrance wound, under pant and long pant, cotton used for stuffing the wound were collected. The 2 nos. of lead bullet recovered from the skull of the deceased and all the above items were sent to the FSL Mualpui along with the seized weapons SBBL 12 bore shotgun with 5 rounds ammunitions.

After the report of the FSL was received back by the I.O, the IO submitted his charge sheet.

On 14.05.2012, the appellant was charged under Section 302 IPC r/w Section 25 (1B)(a) Arm Act, to which the appellant claimed not guilty. Subsequently, 16 prosecution witnesses were examined. Thereafter, the appellant was examined under Section 313 CrPC. The learned Trial Court subsequently convicted and sentenced the appellant vide the impugned Judgment & Order dated 22.01.2013.

The appellant has made a challenge to the impugned Judgment & Order on the ground that Section 212 CrPC has not been complied with. He further submits that the contents of the Section 313 CrPC examination of the appellant was too short to have allowed the appellant make any meaningful explanation to the evidence adduced against him.

The appellant''s counsel also submits that though PWs 9 to 12 had stated in their evidence that they had seen the appellant near the Jhum where the deceased was found with a gun, no proper identification of the appellant was done by the prosecution prior to the trial. The appellant''s counsel submits that there is no direct evidence pointing towards the guilt of the appellant and the entire case is based on circumstantial evidence. The appellant''s counsel submits that the appellant was arrested on 30.05.2010, while the gun was seized only on 2.6.2010 from the YMA Hall at Tlungvel. He submits that this goes to show that the entire case against the appellant is fabricated.

Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor submits that the PW 8 had in his evidence stated that he had heard a gunshot. PWs 11 and 12 had crossed paths with the appellant on the relevant date while the appellant was carrying a gun. The Addl. Public Prosecutor submits that the FSL report clearly proves the fact that the gun that was carried by the appellant had been used for shooting the slug that had been recovered from the skull of the deceased.

We have heard the learned counsels for the parties.

The evidence of PWs-8, 11 & 12 are to the following effect:

PW-8, BL Manghlira also went to his jhum on the date of the incident and from his statement, it appears that at around 10 am, he went towards his jhum. When he reached Pu Ngaihlira, VCP''s jhum which was about 1 km from the jhum of the victim, he heard the sound of gunfire and after sometime, he reached near the jhum of the victim. PW8 saw one man carrying a gun coming from the jhum of the deceased. It also appeared that the man wore a black sleeveless shirt. He also saw a Mizo blanket and some vegetables and a bag inside the jhum hut of Lalawmpuii, the deceased. However, he did not know the man who was carrying the gun on that day as he was not a resident of Thingsulthliah village. It was around 11 am when he heard the sound of gunfire. In his cross-examination, he stated that the person whom he saw carrying a gun was at the distance of more than 10 feet and did not see the appellant committing the crime.

PW-11, Zakiamlova identified the appellant. From his statement, it appears that on that date of the incident, at around 10:00 am, he with his wife proceeded towards their jhum to spend the night. On the way, near the jhum of the deceased, they saw the appellant carrying a gun, coming from the opposite direction. They asked the appellant where he was going and the appellant replied him that he was going to hunt. The appellant also stated that they shot a dear. PW11 asked the appellant whether they caught the said deer and the appellant replied in affirmative. In the evening, PW11 came to know of the death of the deceased. In his cross-examination, he stated that the appellant was carrying a local made SBBL gun but he did not see the appellant using the gun.

The evidence of PW12 is to the effect that she saw the appellant carrying a gun while going to the jhum on the day of the incident. She asked the appellant why he was returning so early and the appellant replied that they had shot a dear. PW12 stated that she asked the appellant as to how many of them were there, to which the appellant stated that they were 4 persons. On being asked where the other persons were, the appellant replied that they were from Tuirial village. PW12 then asked the appellant why he was carrying an empty bag if they had shot a dear. Thereafter, PW12 proceeded towards her jhum. In the evening while on her way back from her jhum and on reaching the jhum of the deceased, she saw the dead body of the deceased being taken out from her jhum.

The evidence of the PWs 11 & 12 clearly shows that the appellant was seen near the jhum of the deceased carrying a gun and there was also the sound of a gunshot on the relevant date of the incident as per the evidence of PW-8. Further, the evidence of PW-13 Dr. Saithangliana, who conducted the PME is to the effect that there were injuries on the body and scalp of the deceased. There were also injuries on the chest of the deceased. PW-13 also recovered 2 pellets from the skull cavity of the deceased and in the opinion of the Doctor, the cause of death was due to head injury which could be due to being shot by a firearm weapon.

The FSL report, which is not denied by the appellant is to the effect that the striation marks found on the lead piece in Ex-H, which is 2 lead bullets recovered from the skull of the deceased, was compared with the test slug in Ex-Tb1 and the result was positive. The FSL report stated that Ex-H was fired from the gun Ex-H-J, which was seized and which had been carried by the appellant.

When a bullet is fired from a firearm, some scratches appear on the surface of bullet. These scratches are known as striation markings. Each firearm has its peculiar striation markings. In Richard Saferstein''s Criminalistics, it is observed "No two rifle barrels, even those manufactured in succession, will have identical striation markings. These striations form the individual characteristics of the barrel." This principle is used by ballistic experts to link a particular weapon with spent ammunition recovered from the scene of the crime.

With regard to the question of the arrest of the appellant on 30.05.2010, while the gun was seized only on 02.06.2010, the documents on record and the evidence shows that the appellant had been caught by the villagers of Thingsulthliah. The gun was also taken by the villagers of Thingsulthliah and the same was seized by the police 2 days later from the YMA Hall, where it had been kept.

The fact that the gun, which had been used for shooting the deceased had been in the custody of the appellant is clearly proven by the appellant''s examination under Section 313 Cr.P.C wherein, the appellant has answered to the following question as follows:

Q. The Villagers of Thingsulthliah caught you with your gun and then you were apprehended by the Police. Is it right?

Ans: Yes.

Q. Is the gun yours or have you stolen it?

Ans: I have stolen it.

Q. From the existing evidence, the live round that killed the victim was fired from the gun that you stole, what do you have to say?

Ans: I have nothing to say, I did not shoot her.

The statement of the appellant that he had carried the gun is corroborated by the evidence of PW-1 and 2.

From the above, it is quite clear that the bullets that were found in the skull of the deceased had been fired from the gun which had been carried by the appellant. The FSL report also clearly confirms the fact that the bullets were fired from the said gun. The evidence of PW-8 was that at around 11:00 am, he heard a sound of gunfire. On reaching the jhum of the deceased, he saw a person carrying a gun coming from the jhum of the deceased. The PW- 11&12 however, identified the appellant carrying a gun on 4.05.2010 at around 9-10 am. The dead body was also found on 24.05.2010 and keeping in view the fact that the appellant had been seen with a gun, sound of gunfire had been heard and in view of the FSL report, we are of the opinion that the circumstantial evidence, all point to the guilt of the appellant. In the case of Geejaganda Somaiah v. State of Karnataka reported in 2007 9SCC 315, the Apex Court has held that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Apex Court. The Apex court in Padala Veera Reddy v. State of Andhra Pradesh reported in 1989 (Supp) 2 SCC 706 has held that circumstantial evidence must satisfy the following test:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In the case of Ashok Debbarma v. State of Tripura, reported in (2014) 4 SCC 747, the Apex Court has held that statements made under Section 313 Cr.P.C solely by themselves are not enough to convict the appellant. However, the statements can be used for corroboration along with other evidence for conviction.

On perusing the entire evidence, we find that there is a connected chain of events that proves the guilt of the appellant in having murdered the deceased. We also find that the statements made by the appellant in his examination under Section 313 CrPC corroborates the evidence adduced that he had murdered the victim. Accordingly, we find no infirmity with the impugned Judgment and Order dated 22.01.2013, passed by the Addl. Session Judge-I, Aizawl in Criminal Trial No. 1395/2010, arising out of Bawngkawn Police Station Case No. 233/2010 under Section 302 IPC r/w Section 25 (1B)(a) Arm Act.. The appeal is accordingly dismissed.

Send back the LCRs.

In appreciation of the assistance rendered by the learned Amicus Curiae Mr. Haulianchhunga, the fee of the Amicus Curiae is fixed at Rs. 9000/- (Rupees nine thousand), which shall be paid by the Mizoram State Legal Services Authority as per the Notification No.J.11013/1/2011-LJE dated 4.12.2014 issued by the Secretary to the Government of Mizoram, Law & Judicial Department and published in the Mizoram Gazette dated 5.12.2014.