State Of Tripura vs Omar Sharif @ Shoib Malik

[1] This is an appeal under Section 378 of the Cr.P.C. against the judgment and order of acquittal dated 18.05.2016 delivered in Case No.S.T.(T-1) 10 of 2014. The respondent was charged of committing murder of one Papai Saha under Section 302 of the IPC and also under Section 326 of the IPC for causing grievous hurt to Arindam Ghosh, Bikram Paul, Raju Saha and Yubak Deb. Separately, the appellant was charged under Section 27(1) of the Arms Act. The charges were denied by the appellant raising the plea of innocence.

[2] The prosecution against the respondent was launched on the basis of the complaint [Exbt.2] filed by Pinaki Saha, the full blood brother of the deceased to the Officer-in-Charge, West Agartala police station revealing that when on 11.07.2011 he and his brother Papai were at the shop, they heard sounds of firing bullets and hue and cry of people. They closed down their shop and rushed for their house. When they reached to a place very close to their house in the Mitterson Lane, he noticed a police vehicle stopped on the road and some TSR jawans with fire arms got down from the jeep. The people started running helter-skelter. Without sounding warning, TSR started firing from their rifles and his brother Papai Saha sustained injury in the said firing. Papai Saha fell down on the ground and the TSR jawan fled away by their vehicle. There was no reason of opening fire at that time. Finally, Papai Saha succumbed to the bullet injury. On the basis of the said complaint, West Agartala PS Case No.235/2011 under Section 302/34 of the IPC was registered and taken up for investigation. After investigation, the police report was filed by sending up the respondent to face the trial.

[3] In order to substantiate the charge, as many as 48 witnesses were examined including the informant [PW-25] and the Medical Officer who carried out the post-mortem examination [PW-46]. That apart, 14 documentary evidence including the post-mortem examination report [Exbt.10] were exhibited by the prosecution whereas at the instance of the defence, 11 documentary evidence [Exbt.A-Exbt.L] have been admitted and Exbt.M.O.A., a copy of the order dated 08.08.2011 was also brought in the evidence as material object. Except the witnesses namely Pradip Chakraborty [PW-40] and Habul Deb [PW-41], no other witness has stated of involvement of the respondent [the accused]. PW-48, Ratan Kumar Sarkar one of the investigating officers did not state that the respondent was involved in commission of the alleged crime. The other witnesses, who are examined in the trial, had stated the story of PW-25 that TSR Jawans reached at the place by a gypsy vehicle and started firing at the mob and bullets hit Papai causing his death. The trial Judge while acquitting the respondent has made a significant comment which reads as under:

"On perusal of the evidence on record it is found that the alleged incident took place on 11.07.2011. The informant lodged the FIR on 16.7.2011. Then the case was entrusted to PW47 SI. Ranjit Debnath for investigation. The first I.O. has handed over the charge of investigation on 4.8.2011. Thereafter the charge of investigation was entrusted to PW48, Insp. Ratan Kr. Sarkar, of CID. PW48 seized three rifles from H/C Uttam Majumder of 1st Bn. TSR on 18.8.2011 without mentioning who were entrusted to use these arms at the time of incident nor the seized arms were sealed at the time of seizure. During investigation I.O. did not take any initiative to unearth the facts as stated by the informant or other witnesses more particularly PWs 12, PW 30 as because considering the evidence of PW25, the informant it was cast upon the duty of the investigating officer to arrange a test identification parade for identification of the assailant by the witness. Test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. The witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in court. IO has submitted chargesheet only relying on the statement of PW40 and PW41 against the present accused."

[4] It is really disturbing to note that the statement of the PWs 40 and 41 were recorded much later i.e. 23.09.2011 whereas the occurrence took place on 11.07.2011 and there is no dispute that Pradip Chakraborty [PW-40] is a chance witness. Around the time of the incident, he reached in a nearby place by riding cycle. He has claimed to have noticed that one gypsy vehicle of TSR person came on the side of Sakuntala road and then proceeded towards Kaman Chowmuhani. At that time chaos broke out, in and around Kaman Chowmuhani area. He had noticed two persons were coming by a motor cycle from Kaman Chowmuhani end and the person in the back side was wrapping his hands by black clothes. It appeared to him that he was indicating something towards the gypsy. When that bike came close to him, he saw Omar Sharif [the respondent] as the pillion rider of the said bike and his right hand was wrapped with black clothes. At one point of time, the distance between Pradip Chakraborty [PW-40] and Omar Sharif [the respondent] was as close as 20/30 feet. Then, they stated proceeding towards Lal Matia. PW-40 has categorically stated that he saw 2/3 inch of pistol in the hand of the respondent. Thereafter, he made the following statement:

"I guessed that he might have fired from the pistol at his hand. Thereafter I returned home with my bi-cycle. House of Omar Sarif at Masjid Patty and in connection with my business I had regular visit to Masjid Patty and Gol Chakkar area and came in contact with him at Gol Chakkar and Masjid Patty."

In the cross-examination, PW-40 has testified as follows:

"After one and half to two months police visited me and recorded my statement. From 11-7-2011 till 23.9.2011 I did not give any statement in this regards to police authorities. I also did not state voluntarily this fact going to the P.S. I did not know how police came to know my name as witness of this case."

He has denied the suggestion that he had falsely implicated the respondent or he did not see the occurrence at all standing near Ratan Textile.

[5] PW-41, Sri Habul Deb is the other witnesses who claimed to have witnessed the respondent firing at the mob. He has testified in the trial that on 11.07.2011 at about 4.30 p.m. he went to a cloth shop situated in between Kaman Chowmohani to Surya Chowmohani, in the southern side of H.G.B. road. At that time, a Congress procession was proceeding from Post Office Chowmohani towards Kaman Chowmohani. There broke out chaos and people started running helter and skelter. Out of scare, he stepped toward the stair case and went to the roof along with others. From there he could notice that a gypsy vehicle came from Sakuntala road and stopped near Shyam Sundar Jewellery. TSR personnel got down and taking a gally path by the side of Shyam Sundar Jewellery, they proceeded ahead. Immediately after that PW-41 made the following statement in the trial:

"Immediately I noticed that a bike carrying with the pillion rider came from the side of Kaman Chowmahani and stopped in front of us on the road and from there the pillion rider fired from pistol towards the T.S.R. vehicle 2 or 3 times and the bike proceeded towards Surya Chowmohani and the Gypsy towards Kaman Chowmohani and immediately after that I noticed that people are being carried. I observed the incident from 10 to 15 feet away from the bike. The pillion rider of the bike fired. I have seen the face of the pillion rider. His name is Soiab Malik alias Omar Sarif."

In the cross-examination, he has stated that the distance of the cloth shop was 30 to 40 cubits away towards west from the island of Kaman Chowmohani. From the roof where he was standing, aerial distance of Shyam Sundar Jewellery would be 25 cubits. The particular position where the bike stopped carrying the pillion rider would be about 10 to 15 cubits away from the Mitterson gally. But he has categorically stated that he did not give any statement to the police. Immediately he had corrected that statement by stating that 'but I gave statement to the C.I.D.' at his house one and half months after the incident. He could not say from where the police came to know his name as a witness of the case. He has denied the suggestion that he did not give any statement to the CID. He has denied all other statement put to him during the course of cross-examination, including the statement that he did not see the respondent or identify him. PW-48, Ratan Kumar Sarkar, the investigating officer even did not disclose how the police could locate PWs 40 and 41 or why such a long delay had taken place in examining PWs 40 and 41. The other investigating officer also followed the same suit.

[6] The trial judge after sifting the testimonies of PWs 40 and 41 has observed as follows:

"So according to PW41 the motor bike came from Kaman Chowmuhani in the southern side of the road and the pillion rider fired from pistal towards the TSR vehicle 2 or 3 times and he observed this at a distance of 10 to 15 cubits but he failed to disclose the actual place from the roof of which shop he witnessed such incident.

PW40 stated that at the relevant time TSR vehicle was plying towards Kaman Chowmuhani while PW41 stated that it was stopped in front of Shyam Sundar Jewelery. So they are not corroborating each other. In cross he also stated that he did not disclose such fact to the police voluntarily but the police examined him on 22.9.2011 for the first time. He also failed to disclose how police came to know his name as witness and the 2nd IO also did not disclose anything on that aspect. But police failed to examine any other witness who were also present in that roof at the time of such incident. From the hand sketch map of PO it is found that IO did not mention any two storied building or staircase in the southern side of Hari Ganga Basak road so the presence of PW 41 in the roof of two storied building where-from he saw the incident is doubtful. According to him the accused fired to the TSR vehicle near to the divider of the road facing towards north. But the evidence of PW 41 is absolutely false and concocted keeping in view that at the time of incident the witness had a scope to see the back side of the shooter as he was also facing north like the witness. During investigation I.O. also did not arrange for TI parade for identification of accused. Hence considering this aspect it appears that the evidence of PW40 and PW 41 are absolutely false and concocted hence their evidence are to be discarded."

[7] The trial judge has observed that the legal framework of investigation as provided by law cannot be selectively placated. Having referred Babubhai vs. State of Gujrat reported in (2010) 12 SCC 254 where the apex court had occasion to observe that the investigation must be fair, transparent and judicious, it has been observed that tainted and biased investigation, and consequent prejudice and harassment to any party cannot be permitted to continue. The trial judge has recorded that the investigating officers and the prosecutors were not transparent at all in investigating and substantiating the case. They are instrumental in complete denial of justice. The perpetrators of the said heinous crime are left unpunished. In that background the trial judge has observed and recorded as follows:

"It is considered essential to direct the Home Department of the State, to examine the entire process of investigation of the instant case and to record reasons for the failure of instant prosecution case and also fix the responsibility to concerned IO, if any irregularity so detected."

Based on the said finding, the respondent has been given clean acquittal from the criminal liability for which the charges were framed.

[8] Mr. A. Nandi, learned special P.P. appearing for the state (the appellant) has quite candidly submitted that the solitary ground of objection that has been taken in this appeal against acquittal is non-consideration of the testimonies of PWs 40 and 41 in the perspective fact. Their testimonies have considered as false and unsustainable. Mr. Nandi, learned counsel has submitted that it is possible that two chance witnesses had seen the assailant. When queried by this court, he had also failed to satisfy this court why their testimonies should be relied as both the investigating officers failed to state in the trial how they could locate PWs 40 and 41 as the eye witnesses or why there was a huge delay in recording their statement. Mr. Nandi, learned counsel has fairly submitted that in this regard, there is nothing on record. He has relied on a decision of the apex court in Atley vs. State of Uttar Pradesh reported in AIR 1955 SC 807 where it has been held, inter alia, as follows:

"It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence."

[9] In State of Punjab vs. Jang Bahadur and Ors. reported in 2000(4) Crimes 169, it has been observed that the view taken by the trial court cannot be said to be either unreasonable or erroneous, much less perverse. If it is found that the view that has been taken is a probable view, such finding should not be interfered with in an appeal against appeal.

[10] Finally Mr. Nandi, learned counsel has referred to a decision of the apex court in Muralidhar @ Gidda & Anr. vs. State of Karnataka [judgment dated 09.04.2014 delivered in Criminal Appeal No.551 of 2011] where the apex court had occasion to observe as follows:

"Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."

[11] Mr. S. Lodh, learned counsel appearing for the respondent has quite emphatically submitted that there is no shortcoming in the finding of the trial judge and as such the acquittal based on such finding cannot be questioned. As there is no dispute that the prosecution could not produce any other witness to implicate the respondent, the outcome of the appeal would depend on whether the testimonies of PWs 40 and 41 are really creditworthy or not. According to Mr. Lodh, learned counsel appearing for the respondent that the entire prosecution story was fabricated from the very beginning to protect the aberrant TSR jawans who opened fire unprovoked at the mob. PWs 40 and 41 were planted much later. It has come to the fore, a lot of people were around the place of occurrence when the said incident had taken place. But none other than PWs 40 and 41 have stated anything implicating the respondent. It is surprising enough that both PWs 40 and 41 are not natural witnesses, they are chance witnesses. No reliance can be placed on such witnesses particularly, when the prosecution has totally failed to establish how the identity of PWs 40 and 41 as the eye-witness was established. Even there was long and suspicious delay in recording the statements of PWs 40 and 41. However, one of the witnesses had clearly stated that no statement of his was recorded by the police. That apart, quite correctly the trial judge has observed that their testimonies are mutually destructive. Their detailed statements on collation appear incongruous on material particulars.

[12] Having appreciated the submissions of the learned counsel for the parties and kept in mind the narrow confines within which the challenge against the order of acquittal is to be considered, we are of the view that PWs 40 and 41 appear to have planted by the investigating agency on flouting the duty of fair investigation. PWs 40 and 41 are not only chance witnesses, but their statements are in material parts diametrically opposite. PW-40 was not sure whether the respondent opened the fire or not. His testimony to the extent of what considered is relevant is that he saw the respondent with a fire arm in his hand. But the position from where he saw the said part of transaction and the position from where PW-41 had seen the respondent are left unidentified. Those places have not found any place in the hand sketch map. But if the description is appreciated, it would show that both the witnesses were not there from where they have claimed to have witnessed the respondent carrying the arms or opening the fire. When there is no explanation by the investigating officers why there had been such long delay in recording their statements [under Section 161 of the Cr.P.C.]. The delay is approximately one and half months from the date of occurrence. Hence, their claim of having witnessed the transaction cannot be believed by this court. As such, there is no ground at all to interfere with the judgment and order of acquittal which is under challenge in this appeal.

Hence the appeal stands dismissed.

Before parting with the records, we direct the Director General of Police to probe the role of the investigating agency in investigating this case, which has emanated from West Agartala P.S. Case No.235 of 2011. We are prima facie satisfied that the police from the very inception of the investigation had been shielding the real culprits. If the role of investigating agency is not inquired into and appropriate action is not taken, confidence of people in the police will be corroded in a faster pace and that will be the death-knell of the rule of law. After the probe is complete, the Director General of Police is expected to take the call. There appears no investigation protocol, being consistent to the provisions of the relevant statutes. If the investigating officers are found responsible for subverting the fair investigation stern action is recommended. Compliance be reported to this court.

Send down the records.