A three-Judge Bench of Justices BR Gavai, Vikram Nath and Sanjay Karol even said that the police might have accidentally killed the deceased while trying to arrest him and in order to cover up the same, fabricated the case against the accused after coming to know about the prior enmity between the deceased and the accused.
“Even the scribe of the FIR has not been produced nor the signatures have been proved. It is quite possible that it was a complete set-up by the police. They having committed the murder in the process of arresting the deceased, and thereafter, knowing the enmity between the two parties, set-up a false case against the accused,” the judgment said.
This, the Court said, would explain the presence of police personnel throughout the incident including at the spot during the time when the murder is said to have occurred.
“Apparently for this reason, no explanation has come forward to explain the presence of the police personnel of Chabua Police Station throughout the incident,” the judgment said while acquitting the accused.
The Court was hearing an appeal challenging a 2015 Gauhati High Court judgment affirming the conviction and life sentence of the accused-appellants by the trial court
The case concerned the death of one Pradip Phukan, who was murdered on June 13, 1989.
The trial court and the High Court had convicted a total of eleven accused under Sections 147 (rioting), 148 (rioting armed with deadly weapons), 447 (criminal trespass), 323 (hurt), 302 (murder), 149 (unlawful assembly) of the Indian Penal Code 1860.
However, only four of the convicts preferred appeal before the apex court.
As per the first information report (FIR) dated June 13, 1989, the sister-in-law of the deceased stated that a total of thirteen residents of her village came to her house, and caused grievous injury on the head of her brother-in-law by giving blows with sharp weapons.
It further said that three of the accused, Mozen Phukan, Dulen Phukan and Haren Saikia committed murder of the deceased by assaulting him with sharp weapons.
On May 3, 1991, the police submitted the chargesheet against eight accused, Mozen Phukan, Mridul Saikia, Kuleshwar Chetia, Pulen Phukan, Baren Saikia, Dulen Phukan, Kiran Saikia and Harnath Saikia.
Later three others were also apprehended and put to trial. However, two remained absconding and could not be traced.
The trial court and the High Court came to the conclusion that the evidence led by the prosecution was unquestionable and therefore, convicted all the eleven accused who were on trial.
Four out of eleven moved the present appeal before the apex court.
The Supreme Court noted that the informant and the three eye-witness had categorically stated that police personnel had accompanied the accused-appellants to the house of the deceased and they were present throughout the incident including when the murder took place.
However, the trial court failed to get this clarification from the prosecution as to why such police personnel accompanying the accused-appellants and standing outside the house of the deceased to watch the accused assault the deceased and commit his murder.
If the police personnel were present at the time of commission of the offence, they should have immediately acted upon to set the criminal machinery in motion by first apprehending the accused from the spot itself rather than allowing them to get way, the Court said.
“The entire version of the prosecution witnesses that the police personnel accompanied the accused and were standing outside the house of the deceased creates a serious doubt on the very genesis of the prosecution story,” the Court opined.
Moreover, the Court was of the view that the statement of sister-in-law of deceased did not inspire confidence as the same was contrary to the FIR and appeared to be a tutored version. It was highlighted that she has not assigned any specific role to any accused and has only stated that thirteen persons came to her house.
“The statement of Prosecution Witness 1 (PW1/ sister-in-law) does not inspire confidence primarily for two reasons out of many. Firstly, that the FIR version and the statement during trial are materially different and secondly, once the deceased had escaped from the back door of the house of PW-4 and PW-5, followed by some of the accused, PW-1 would have no opportunity to reach the house of PW-4 and PW-5 where the actual assault took place and to witness the manner,” the Court said.
The Court also did not find any reliable evidence with regard to presence of the brother of the deceased at the incident spot though he claimed he had seen the incident.
The Court noted that the versions of various eye-witnesses differed.
With regard to conviction of unlawful assembly, the Court noted that none of the eye-witnesses took the names of all the accused persons and only names of three-four accused persons were taken.
“It is clearly stated by the eye-witnesses PW-1, PW-2 and PW-3 that at least five police personnel were accompanying the accused and that they were standing outside and did not interfere in the commission of the alleged crime. From the above it is clear that it is difficult to decipher that all the members of the unlawful assembly were aware of the common object,” the Court observed while discarding the theory of unlawful assembly.
Pertinently, the Court noted that the murder weapon stated to have been in police custody was never produced before the Court and no evidence regarding the same was adduced.
“The prosecution has not established the place of occurrence by any material exhibit of having collected the blood-stained earth from the place of occurrence. Even the material exhibit, the axe, which is said to have been taken into custody by the police whether on the date of the incident or two days thereafter has also not been produced nor any evidence led to that effect,” the Court observed.
Therefore, the Court was of the view that although the death of deceased was homicidal; however, the prosecution failed to establish the case beyond reasonable doubt against the accused appellants.
Hence, it proceeded to acquit the appellants.
“The appellants would be entitled to benefit of doubt. The appeal is accordingly allowed. The conviction and sentence are set aside. The appellants are set at liberty forthwith,” the Court concluded.
