IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRIMINAL APPEAL NO.11 OF SHRI NAREN GOGOI, Son of Late Benudhar Gogoi, Village: Namti Parbatiya Gaon, PS: Amguri, District: Sibsagar, Assam. 2. SHRI PHUNU GOGOI, Son of Shri Kuladhar Gogoi, Village: Meteka Kurula Katia Gaon, PS: Sibsagar, District: Sibsagar, Assam. -Versus-..Appellants THE STATE OF ASSAM..Respondent B E F O R E HON BLE MR. JUSTICE A. K. GOSWAMI For the appellants For respondent : Mr. H. Baruah, Advocate. : Mr. D. Das, Additional Public Prosecutor, Assam. Dates of hearing : and Date of judgement : JUDGMENT & ORDER (ORAL) Heard Mr. H. Baruah, learned counsel for the appellants. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. [2] This appeal is directed against the judgment and order dated passed by the learned 1 st Additional Sessions Judge (Ad hoc), Sibsagar, in Sessions Case No.33(S-S)/2002, whereby the appellants were convicted under Section 5 of the Explosive Substances Act, 1908 and sentenced to suffer rigorous imprisonment for 5(five) years each and to pay fine of Rs.1,000/- (Rupees One Thousand) each, in default, rigorous imprisonment for another 3(three) months. Crl. Appeal No.11/2004 Page 1 of 8

2 [3] One Prafulla Deka, Sub-Inspector of Police of Nazira Police Station lodged an Ejahar before the Officer-in-Charge of the said Police Station on in reference to G.D. Entry No.399 dated of the Police Station to the effect that while he, along with Chandra Kamal Lekharu, were conducting patrolling duty and miscellaneous inquiry in and around Mejenga Tinali (Tri-junction), he signaled one scooter (Vespa) coming from Namti Chariali to stop. The scooter came to a halt but at the same time, the driver fled away and the pillion rider was apprehended. Two other persons, who were coming in a motor cycle after them, had also fled away abandoning the motor cycle (Hero Honda). The name of the apprehended person was Naren Gogoi and the persons who fled away were Phunu Gogoi, Bhuban Gogoi and Amrit Gogoi, as disclosed by Naren Gogoi. It is also stated that the scooter (Vespa) bearing registration No.AS-04/7702 and the motor cycle (Hero Honda) bearing registration No.AS-04/1958, which was stated to be taken away forcibly from Manik Gogoi, one military coloured cap, belt, Rs.5,000/- (Rupees Five Thousand) and one live hand grenade No.36 MMKI OFI K/KF83 were seized. It is further stated that Naren and Bonai Gogoi were involved for a long time in dacoity, extortion and cases relating to arms and ammunitions. The accused was also taken to the Police Station. Accordingly, Nazira Police Station Case No.40/1994 under Sections 170/384/34 IPC read with Sections 4 and 5 of the Explosives Substances Act, 1908 was registered. [4] It is relevant to note that the Assamese version of the Ejahar (Exhibit-8) mentions the name of Bhuban Gogoi alongwith the grenade indicating as if the grenade belonged to Bhuban Gogoi. [5] After completion of investigation, charge-sheet was submitted vide Exhibit-12 against the present appellants and Bhuban Gogoi under Sections 170/120B/34 IPC read with Sections 4 and 5 of the Explosives Substances Act, In the charge-sheet also, the statement with regard to the grenade mentioning the name of Bhuban Gogoi was identically reproduced. Nothing was mentioned in the charge-sheet with regard to Amrit Gogoi, who was also stated to be a rider on the motor cycle. [6] It appears that Bhuban Gogoi had expired before trial had commenced. The case being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions and on transfer to the Court of 1 st Additional Sessions Judge (Ad hoc), Sibsagar, Sessions Case No.33(S-S)/2002 was registered. Crl. Appeal No.11/2004 Page 2 of 8

3 [7] Upon hearing the learned counsel appearing for the parties, charge under Section 5 of the Explosives Substances Act, 1908 was framed. The charge being read over and explained, the accused persons pleaded not guilty and claimed to be tried. [8] During trial, prosecution examined 13(thirteen) witnesses. Defence adduced no evidence. On conclusion of trial, the accused persons were examined under Section 313 Cr.PC. [9] At this stage, it will be appropriate to take note of the salient features of the evidence presented by the prosecution. [10] PW-1 stated that he had signed on Exhibit-1 when he was told by police that a bomb was recovered. But he was not shown any substance. [11] PW-2 stated that he was put in the lock-up for some time and thereafter, released. He had stated that accused Naren Gogoi and Phunu Gogoi, wearing army dress and civil dress, respectively, one day had gone to his house in a Vespa scooter and had shown him five grenades and had demanded his motor cycle bearing registration No.AS- 04/1958. They had threatened him with dire consequences in the event he disclosed the same to the police. He gave the keys of the motor cycle and accordingly, Naren had driven away the motor cycle and Phunu, the scooter. He had not disclosed about his motor cycle being taken away by the accused to the police due to fear and when he found Naren Gogoi in the lock-up of the police station, he told police that Naren Gogoi had taken the motor cycle by threat. [12] PW-3 is the brother of Phunu Gogoi and he was informed that police had recovered some army dresses from the house of Naren. At that time, Phunu was staying away from the home. He had made a statement before the Magistrate, which is Exhibit-4. In Exhibit-5 and Exhibit-6, seizure lists, he had put his signatures as witness. Exhibit-5 is the document of the motor cycle and Exhibit-6 is the motor cycle belonging to him bearing registration No.AS-04/4288. He was also put in the lock-up and he had stated in his cross-examination that police had threatened him that if he did not say as dictated, he would again be put up in the lock-up and accordingly, he had made statements as dictated by the police before the Magistrate. [13] PW-4 had stated that police had recovered one hand grenade, one cap with badge of Assam Rifle and a belt. He had also deposed that there were three persons in Crl. Appeal No.11/2004 Page 3 of 8

4 two motor cycles, one of which he later on clarified as scooter, which were seized. He had also stated that vide Exhibit-1 and Exhibit-2, the scooter and the motor cycle were seized, respectively. He also deposed that vide Material Exhibit-1, the hand grenade was seized. He had stated that the hand grenade and other articles were seized from the motor cycle. In his cross-examination, he stated that the place of occurrence was engulfed in darkness and at the time of his signature in Exhibits-1 and 2, there were not written and his signatures were obtained in blank paper. He also stated that the police had not seized the Material Exhibit-1 in his presence. [14] PW-5 deposed with regard to seizure of a motor cycle belonging to the elder brother of Phunu Gogoi (PW-3). PW-5 is a scooter mechanic and he was signatory in Exhibit-6, seizure list. In his cross-examination, he had stated that Exhibit-6 was not filled up at the time of his signature and it was blank. [15] PW-6 stated that he was a witness to the Exhibit-7, seizure list, by which police had seized 1(one) army shirt from the almirah of one person. [16] PW-7 is the father of Phunu Gogoi (PW-3) and he had stated that Phunu had informed his mother that he had fled away when police had conducted checking on his scooter. Police was looking out for Phunu Gogoi and not finding him, police had taken him to the Police Station and was released on the next day when he had surrendered. In his cross-examination, he stated that he did not disclose to the police about the conversation between Phunu and his mother regarding his escape. [17] PW-8 happened to be a driver, who had driven a police vehicle at the time of seizure of the motor cycle belonging to PW-3. He was a signatory in the seizure list, Exhibit-6 and he stated that he did not know why the same was seized. [18] PW-9 stated that as he was proceeding to Kalogaon one day, at around 2:00 PM, police stopped him and took his signature, which he gave out of fear. Exhibit-7 is the said document. [19] PW-10 is the Inspector of Police and he stated that he was deputed by the Officer-in-Charge to do patrolling duty alongwith Constable Chandra Kamal Lekharu, PW-13. While he was in Mejenga Tinali conducting checking, he saw a Vespa scooter being driven by one person with a pillion rider. There was no light in the scooter and the Crl. Appeal No.11/2004 Page 4 of 8

5 moment the scooter was stopped, the driver ran away and the pillion rider was apprehended and his name was Naren Gogoi. Another motor cycle bearing registration No.AS-04/1958 also came with two riders and they also ran away abandoning the motor cycle. Naren Gogoi disclosed that the person who fled from the scooter was Phunu Gogoi and the persons riding on the motor cycle were Bhuban Gogoi and Amrit Gogoi. He disclosed that in the tool box of the scooter, there was a live grenade and army uniform (one cap and one belt). Search being made on Naren Gogoi, Rs.5,000/- (Rupees Five Thousand) was seized comprising of ten numbers of Rs.500/- (Rupees Five Hundred) notes. The scooter, grenade, cash and documents relating to the scooter were seized vide Exhibit-1 and vide Exhibit-2, he seized the documents relating to the motor cycle and the motor cycle. He lodged the Ejahar, Exhibit-8. He also stated that he had got the statements of Manik Ch. Gogoi and Uttam Gogoi recorded under Section 164 Cr.PC. By searching the house of Bhuban Gogoi, he found one badge and shirt of 13 th Assam Rifle, three long pants of Assam Rifle and one cap with badge of Assam Rifle and accordingly, he seized the belt with the badge of Assam Rifle and one green coloured cap, bulb of motor cycle, one dagger vide Exhibit-7. [20] PW-11 is the Police Officer, who had caused examination of the grenade through the Armourer and had obtained the report from him, which is exhibited as Exhibit-10. He obtained sanction from the District Magistrate vide Exhibit-11 and thereafter, filed charge-sheet vide Exhibit-12. [21] PW-12 is the Armourer, who deposed that the seized grenade was a factory made live grenade and Exhibit-10(1) is his signature. [22] PW-13 is the Constable, who had accompanied PW-10. He deposed that one Vespa scooter without light was coming from Namti side in which there were 2(two) people. One motor cycle was also coming but he did not know how many persons were there. When the scooter was signaled to be stopped, the pillion rider fled away and the person, who was driving the scooter, was apprehended. He stated that in the tool box of the Vespa, one hand grenade was found. The riders of the motor cycle had fled away. In his cross-examination, he stated that there were four constables of Assam Police Battalion with them and there was also one other person present. He stated that they were not certain how many people were there in all as it was dark. Crl. Appeal No.11/2004 Page 5 of 8

6 [23] Mr. Baruah, learned counsel for the appellant has submitted that going by the Ejahar and the statement made in the charge-sheet, it is apparent that the grenade was identified to be belonging to Bhuban Gogoi. He has submitted that even otherwise seizure of the grenade was not proved in accordance with law and the evidence of PW-4 being a pointer to the fact that the grenade was found in the motor cycle, with which the present appellants are no way connected, the appellants are entitled to be acquitted. It is submitted by him that there is no evidence as stated in the Ejahar that the appellants are involved in any dacoity or extortion cases. [24] Mr. Das, learned Additional Public Prosecutor, Assam, has supported the impugned judgment and the reasoning assigned by the learned trial Court. [25] I have considered the submissions of the learned counsel appearing for the parties and have perused the materials available on record. [26] In order to bring home the offence under Section 5 of the Explosive Substances Act, 1908, as it existed then, the prosecution has to prove that the substance in question is an explosive substance; that the accused person has made or knowingly has in his possession or under his control any explosive substance; that he does so under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object. [27] The frontal attack made by Mr. Baruah in his arguments is directed with regard to the possession aspect of the explosive substance, i.e. the grenade. [28] To establish seizure of the explosive substance and possession of the same by the appellants, prosecution has primarily relied upon the evidence of PW-1, PW-4, PW-10 and PW-13. PWs-2, 3, 5, 6, 7, 8, 9, 11 and 12 are not eye witnesses of the occurrence at the time of recovery of the explosive substance and its seizure. [29] Evidence of PW-13 goes to show that there were four Constables of Assam Police Battalion along with PW-10 and PW-13 and another person. PW-13 did not disclose who was that person. None of them were examined either. [30] Evidence discloses that it was pitch dark when the alleged seizure was made. PW-13, a constable, who accompanied PW-10, stated that he could not even ascertain Crl. Appeal No.11/2004 Page 6 of 8

7 how many persons were there in the motor cycle. There is a gross contradiction in the evidence of PW-10 and PW-13. While PW-10 stated that the driver of the scooter ran away and the pillion rider was apprehended, PW-13 stated just the reverse: that the person driving the scooter was apprehended and the pillion rider fled away. The evidence on record leaves no manner of doubt that Exhibits-1 and 2 were not prepared at the place of occurrence and signatures of PW-1 and PW-4 were obtained in blank papers. [31] The learned trial Court disbelieved recovery of cash amount from the possession of Naren Gogoi. The learned trial Court had, however, wrongly appreciated the evidence of PW-10 in holding that evidence of PW-10 to the effect that he had recovered Army cap and belt from the pocket of Naren Gogoi was not supported by other witnesses inasmuch as Army belt and cap was not stated by PW-10 to have been recovered from the pocket of Naren Gogoi but from the tool box of the Vespa scooter. [32] A perusal of Exhibit-1 goes to show that a grenade and a motor cycle were seized from the possession of Naren Gogoi. While giving the description of the seizure, however, a Vespa scooter was shown to have been seized. Exhibit-2, seizure list, shows that the motor cycle was registered in the name of Manik Gogoi, who was examined as PW-2. [33] PW-1 was categorical in stating that he was not shown any substance or material by the police though he had to sign at the bidding of the police on Exhibit-1 and Exhibit-2. Contrary to what was stated by PW-10 and 13, PW-4 had stated that the hand grenade and other materials were found in the tool box of the motor cycle, raising doubt as to whether the grenade was recovered from the scooter, in which the appellants were riding. PW-2 was also kept in the police lock-up and he had, thereafter, stated that the motor cycle was forcefully taken away from him by Naren Gogoi and Phunu Gogoi sometime back. He having said so, he was allowed to go from the lock-up. Non-disclosure of the aforesaid incident for long and only stating the same at the police lock-up renders the evidence of PW-2 extremely doubtful. Even when police had gone to the residence of PW-2, he had not disclosed to the police about his motor cycle being taken away by the appellants. His explanation is that he was afraid because of which he did not disclose has to be taken with a pinch of salt. There is no evidence that the appellants are desperados or that they are history-sheeters or that they are otherwise dangerous characters. Crl. Appeal No.11/2004 Page 7 of 8

8 [34] PW-3 in his evidence had specifically stated that at the time of recording his statement before the Court he was compelled to make statements as dictated by the police, failing which he was threatened that he would be again kept in the lock-up. PW-7 was also taken to the police custody and was released when the appellant Phunu Gogoi surrendered. Such act of surrender by Phunu Gogoi, in the circumstances, cannot be treated to be a conduct within the meaning of Section 8 of the Evidence Act. As the father was kept in the lock-up, though he was in no way connected with any crime, the son might have appeared at the Police Station and surrendered to secure release of his father and, therefore, such surrender cannot be linked to the offence committed. The evidence of PW-9 also demonstrates that being intimidated by the Investigating Officer, he had become a signatory in Exhibit-7. [35] In view of the state of evidence, as discussed above, I am of the considered opinion that prosecution has not been able to prove the guilt of the accused/appellants beyond reasonable doubt. Accordingly, their conviction is set aside. The appeal is allowed. Bail bonds stand discharged. [36] Registry will send down the case records. JUDGE M. Sharma Crl. Appeal No.11/2004 Page 8 of 8