1. Heard Mr. A. Ghosh, learned counsel for the appellant as well as Mr. H. Sarkar, learned Addl. PP for the State.
2. This criminal appeal has been preferred against the judgment of conviction and sentence dated 30.6.1997 passed by the learned Addl. Sessions. Judge. South Tripura, Udaipur in case No. S.T.35(S.T./A)/96 whereby the appellant was convicted under section 307 IPC and sentenced to suffer RI for 5 years with a fine of Rs. 2,000, in default, RI for one year more and also convicted under section 27 of the Arms Act with a sentence of RI for one year and a fine of Rs. 500, in default, RI for 3 months more.
3. The appellant preferred this appeal while in custody on 29.1.2000 seeking condonation of delay which has been condoned and the appeal was admitted on 7.2.2000.
4. The prosecution case is that on 9-10-1995 at about 11-45 hrs. while the Addl. SP being accompanied by other Police personnel and TSR jawans was conducting a special operation at Ruhidaspara under Taidu PS, some extremist militants attacked the Police party and started firing from their country-made arms from nearby jungles and in defence, the Police personnel also opened fire. Encounter continued for about ten minutes and the extremists could manage to escape, but one of them viz. the appellant herein could be apprehended with bullet injury and two numbers of country-made guns and one '22 revolver and one HE-36 hand granade had been recovered and seized from the possession of the appellant. The Police filed chargesheet under section 148/149/ 353/307 IPC and also under section 25/27 of the Arms Act. The case having been committed to the Court of learned Session Judge who transferred it to the file of learned Addl. Sessions Judge. Learned Addl. Sessions Judge framed the charge against the accused persons. The charge framed against the accused persons alleging, inter alia, that the accused appellants along with other extremists committed the offence punishable under section 148/149/353/307 IPC and also an offence punishable under section 25/27 of the Arms Act.
5. The prosecution examined as many as 9 PWs while the defence none. From the evidence on record, it remains proved that the appellant was caught red handed in injured condition from the jungle. The learned counsel for the appellant argues that the injured was apprehended from his house premises situated in the jungle, but from the evidence of PW 5, it reveals that the injured was found in a place where there was no hut at all. Other witnesses only deposed that the injured was found in the jungle. There was no suggestion at all given by the defence during trial that while the accused had been inside his house premises, he sustained the bullet injury and as such it cannot be held that during encounter between the Police party and the extremists, the accused-appellant had been in his house premises. It is correct that the injury sustained by the appellant has not been specifically examined by the expert to ascertain whether the appellant sustained injury by any sorts of weapons used by the Police personnel or by a bullet used by the extremists through their country-made guns. But fact remains that the appellant was found with bullet injury at the spot where the encounter occurred. There is no reason to disbelieve any of the PWs, because all of them belong to Police force and there is no personal enmity borne by any of the witnesses against the appellant. Learned defence counsel contends that since the appellant was found injured, to absolve the liability the Police concocted the case having marked a stamp, identifying the appellant belonging to extremist group. From the evidence, it also reveals that at the spot where the injured was found in lying condition with bullet injury, 2 country-made guns, one '22 revolver and one granade were found. The learned counsel for the appellant submits that the 2 guns found at the spot have been examined by the firearms expert and found both the guns loaded with bullets but not used at all and as such the learned defence counsel submits that from the aforesaid position, it cannot be held that the appellant opened fire upon the Police party. It is correct that the two guns recovered from the place were found unused, though loaded with bullets and thus it might have been the case that the extremists who managed to escape left the loaded guns at the spot or that might be also possible that one of the loaded guns belongs to the appellant, but could not be used by him as he sustained bullet injury first during encounter.
6. Learned defence counsel Mr. A. Ghosh having referred a decided case in Megha Singh v. State of Haryana reported in (1995) CrLJ 3988 contends that the Hon'ble Apex Court depreciated the prevailing practice of undertaking investigation by a Police officer who lodged the FIR and the learned defence counsel continued that the Police Officer Sri Debjan Chakma lodged the FIR as informant of the case and he himself took up the investigation as available from the FIR, exbt.P/3 and from the deposition of Debjan Chakma PW 9. Learned counsel for the appellant also referred a citation in the case of Xavier v. State of Kerala reported in 1998 CrLJ 3182 and submits that since in the present case the Police Officer who lodged the FIR setting the law in motion himself conducted the investigation and the entire trial stood vitiated. I have carefully gone through the aforesaid citation, though in the case of Xavier (supra) the Kerala High Court acquitted the appellant on that score alone, but in the case of Megha Singh (supra) though the Hon'ble Apex Court condemned the prevailing practice of undertaking/conducting investigation by the informant Police Officer, but on the ground alone, the Hon'ble Supreme Court never held that the trail would be vitiated in such case.
7. It is correct that if a Police Officer who lodged the FIR is allowed to investigate the case, the investigation may not be free from biasness and impartiality may be put in doubt and for the purpose of inspiring confidence in the minds of the people in general, the Police Officer who lodged the FIR, commonly called suo moto FIR, should not be allowed to investigate the case save and except undertaking preliminary steps.
8. Had the charge been framed having arrayed the appellant alone, the alternative finding could have been possible, but the charge framed against the accused appellant having arrayed the accused and some other miscreants, though could not be identified. This being the position, it cannot be held that the appellant was an innocent passer by. There is no explanation from the side of the defence during trial as to how the firearms as referred to above have been found near the place where the appellant was found lying injured. Some sorts of explanation was expected from the side of defence had the accused been not a member belonging to the extremist groups.
9. From the evidence on record, it appears that none of the Police party sustained any sorts of injury, but it is proved from the evidence on record that the militant extremists opened fire first and the Police party in exercise of right of defence started cross firing as a result the encounter happened wherein the appellant sustained injury.
10. From the fact situation as revealed from the totality of the prosecution evidence only inference could be drawn that the accused appellant being a member of unlawfully assembled militant groups participated in encounter but while his other companions could manage to escape unhurt, the appellant sustained the injury and fell on the ground and as a result he was apprehended at the spot with some arms and ammunitions lying at the spot. There is no scope to draw up an alternative inference, because the defence took no plea suggesting any scope for probable alternative inference and thus, I find no reasonable ground to interfere with the finding of conviction arrived at by the learned trail Court.
11. Learned trial Court spelt out the reason why the benefit under section 360 CrPC was not allowed to the appellant. I am also satisfied with the reasoning given by the learned trial Court in not allowing such benefit. But having regard to the age of the appellant (30 years) at the relevant time of incident and his having belonged to Jhumia cultivators' community and having regard to the fact that the accused appellant had been although in custody during investigation, trial and appeal, 1 think the period undergone detention is sufficient enough to meet the ends of justice.
12. In the result, the appeal fails. The conviction of the appellant under section 307 1PC and also under section 27 of the Arms Act is affirmed. But the quantum of sentence is reduced to the extent already suffered by the accused appellant.
13. The appeal is disposed of as indicted above with a direction that the accused appellant Sri Shibjoy Reang be released from imprisonment, if not wanted in any other criminal case.