Rameswar Kakoti vs The State Of Assam And Anr
2021 Latest Caselaw 2832 Gua

                                                                  Page No.# 1/37

GAHC010177722015




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

                                Case No. : Crl.A./198/2015

            RAMESWAR KAKOTI
            S/O MOTIRAM KAKOTI, R/O VILL. MURARA, P.O. RANGIA UNDER RANGIA
            POLICE STATION IN THE DIST. OF KAMRUP R, ASSAM, PIN 781354

            VERSUS

            THE STATE OF ASSAM and ANR


            2:DIPANKAR SINGHA LAHKAR

             S/O LATE MUNINDRA SINGHA LAHKAR
             R/O MOUZA-RANGIA WARD NO. 3
             POLICE STATION RANGIA
             P.O. RANGIA
             IN THE DIST. OF KAMRUP RURA

Advocate for the Petitioner   : MR.D K BHATTACHARYYA

Advocate for the Respondent : PP, ASSAMR-1



             Linked Case : Crl.A./215/2017

            SHRI DIPANKAR SINGHA LAHKAR
            S/O LATE MUNINDRA SINGHA LAHKAR
            R/O NIRLAYA CASTLE APARTMENT
            CHACHAL PATH
            SIX MILE
            DIST. KAMRUP M
            ASSAM.
                                                 Page No.# 2/37

VERSUS

STATE OF ASSAM and 5 ORS


2:AKON BARMAN

S/O SRI SARAT BARMAN
VILL. BAGHMARA
P.S. GHOGRAPAR
DIST. NALBARI
3:ASHOK KUMAR SALOI

S/O SRI PRASANNA KUMAR SALOI
VILL. GURKUCHI SALOIPARA
RANGIA
4:BAKUL BORO

S/O SRI BHABEN BORO
VILL. DARKUTCHI PATHALIKUTCHI
P.S. TAMULPUR
DIST. BAKSHA
5:PRAMOD KALITA

S/O LATE UPEN KALITA
VILL. MURARA
RANGIA
KAMRUP RURAL
6:PULIN SHARMA

S/O SHRI SARAT CHANDRA SHARMA
VILL. BALIKUTCHI SUNDHIYA
 P.O. RANGIA.
 ------------

Advocate for : MR.G N SAHEWALLA Advocate for : MR.K MUNIR (R- 3 4and5) appearing for STATE OF ASSAM and 5 ORS

Linked Case : Crl.A./4/2016

SHRI MAHESH LAHORI S/O SHRI GIRINDRA LAHORI R/O BOTABARI P.S. TAMULPUR DIST. BAKSA PIN 78136 Page No.# 3/37

VERSUS

STATE OF ASSAM and ANR ASSAM

2:DIPANKAR SINGH LAHKAR S/O LATE MUNINDRA SINGH LAHKAR

RANGIA TOWN P.S. RANGIA DIST. KAMRUP R PIN 781354

------------

Advocate for : MR. S DUTTA Advocate for : appearing for STATE OF ASSAM and ANR

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MRS. JUSTICE MARLI VANKUNG

Dates of hearing : 03.11.2021 & 08.11.2021

Date of judgment : 12.11.2021.

JUDGMENT AND ORDER (CAV)

(Suman Shyam, J)

Heard Mr. A. K. Das, learned senior counsel assisted by Mr. D. K. Bhattacharyya,

learned counsel appearing for the appellant in Crl. Appeal No.198/2015, Mr. S. S. S.

Rahman, learned counsel appearing for the appellant in Crl. Appeal No.4/2016 and

Mr. P. Bora, learned counsel for the appellant in Crl. Appeal No.215/2017. We have

also heard Ms. S. Jahan, learned Addl. P.P., Assam, representing the State in all these

appeals and Mr. A. K. Bhuyan, learned counsel appearing for the respondent No.2 in Page No.# 4/37

Crl. Appeal No.198/2015. Mr. K. Munir, learned counsel, has appeared for the

respondent Nos.3, 4 and 5 in Crl. Appeal No.215/2017.

2. These three appeals arise out of the common judgment and order dated

06.07.2015 passed by the Court of learned Additional Sessions Judge (FTC), Kamrup,

Rangia, in connection with Sessions Case No.231/2010 and as such, we propose to

dispose of the three appeals by this common judgment. The facts and circumstances

giving rise to the filing of the appeals may be noticed hereunder.

3. On 13.12.2007 Sri Dipankar Singha Lahkar, son of Late Munindra Singha Lahkar

had lodged an ejahar with the Officer-in-Charge, Rangia Police Station informing that

on 13.12.2007, at about 7.30 p.m. 3 unidentified miscreants had shot dead his father

Munindra Singha Lahkar in their residence at Ward No.3 of Rangia Town and fled the

scene. The miscreants had also caused injuries to his cook Sri Dipak Nath by striking

him on his head. A request was, therefore, made to the police to look into the matter

and take necessary steps to nab the culprits.

4. Based on the aforesaid ejahar, Rangia P.S. Case No.534/2007 was registered

under Sections 302/325/34 of the Indian Penal Code read with Section 25(1-A)/27 of

the Arms Act. The Officer-in-Charge of the Rangia P.S. had entrusted the matter to Sri

M. K. Acharjee (SI) to conduct investigation in connection with the aforesaid police

case. During the course of investigation the I.O. had recorded the statements of a

number of witnesses, collected call details in respect of the mobile phone belonging

to the deceased, which was apparently taken away by the miscreants, made

recovery of the damaged mobile handset and seized other articles connected with Page No.# 5/37

the incident. The dead body was sent for post-mortem examination at the Guwahati

Medical College & Hospital, Guwahati and the ammunitions seized by the I.O. was

sent to the Forensic Science Laboratory. The I.O. had thereafter collected the post-

mortem report as well as the FSL report and upon completion of investigation,

Charge-sheet was submitted under Sections 120(B)/302/324/380 of the IPC against

seven accused persons viz., Rameswar Kakoti, Mahesh Lahori, Ashok Kumar Saloi,

Pulin Sarmah, Promod Kalita, Bokul Boro and Akon Barman. Another accused persons

viz., Kabul Singh Basumatary was released on bail during investigation and

subsequently, he was proclaimed as an absconder.

5. Based on the charge-sheet submitted by the I.O. the learned trial court had

framed charges against all the seven accused persons under sections 302/34 IPC.

Charge was also framed against accused Mahesh Lahori under sections 324/380/34

IPC. Since the accused persons had denied the charges framed against them, they

were made to face the trial. During trial, the prosecution had projected that the

accused Rameswar Kakoti had hatched a conspiracy with the co-accused persons

to commit the murder of Munindra Singha Lahkar. In furtherance of such conspiracy,

three youths belonging to the "Bodo" community were hired as contract killers. On

the day of the incident, accused Rameswar Kakoti had deliberately left the iron gate

open allowing the three youths to enter the house of the deceased. On entering the

house one of the boys had attacked the cook Deepak Nath by striking him on his

head. The three boys then went upstairs following the accused Rameswar Kakoti and

one of them shot the deceased by a pistol. The boys then fled the place. At the

conclusion of trial the learned Sessions Judge had passed the impugned judgment Page No.# 6/37

and order dated 06.07.2015 convicting the accused Rameswar Kakoti under Section

302/34 of the IPC and accused Mahesh Lahori under Section 302/324/380/34 of the

IPC. However, the co-accused persons viz., Akon Barman, Ashok Saloi, Bokul Boro,

Promod Kalita and Pulin Sarmah were all acquitted of the murder charge due to

want of evidence against them. The two appellants Rameswar Kakoti ad Mahesh

Laori were sentenced to undergo rigorous imprisonment for life and also to pay a fine

of Rs.5000/- each for committing the offence under Section 302/34 of the IPC.

Appellant Mahesh Lahhori was also sentenced to undergo three months rigorous

imprisonment for committing the offence under Section 324 of the IPC and to

undergo rigorous imprisonment for another two years and pay fine of Rs.2000/- for

committing the offence under Section 380 of the IPC.

6. Aggrieved by the impugned judgment and order dated 06.07.2015 the two

appellants viz., Rameswar Kakoti and Mahesh Lahori have preferred Criminal Appeal

No.198/2015 and Criminal Appeal No.4/2016 respectively, with a prayer to set aside

their conviction. Criminal Appeal No.215/2017 has been preferred by the informant

Dipankar Singha Lahkar challenging the impugned judgment and order dated

06.07.2015 assailing the acquittal of the five co-accused persons, as noted

hereinbefore.

7. During the course of argument Mr. A. K. Das, learned senior counsel appearing

for the appellant in Criminal Appeal No.198/2015 has argued that the conviction of

his client is entirely based on the testimony of PW-1 who cannot be regarded as a

reliable witness in view of the material contradictions in his testimony. Mr. Das has Page No.# 7/37

argued that from the evidence of PW-1 it is not established with any degree of clarity

as to whether, the appellant Rameswar Kakoti at all had any role to play in the

murder of Munindra Singha Lahkor. It is also the submission of Mr. Das that the

evidence of the informant (PW-2) is hearsay evidence and therefore, inadmissible in

the eye of law. Moreover, the Chowkidar (PW-6) has also stated that he had not seen

the occurrence nor did he see any other person accompanying his client while going

upstairs carrying the bag containing the money brought from the office. According

to Mr. Das, the PW-1 in his statement recorded before the police under Section 162

Cr.P.C. did not implicate his client and the said fact has also been proved by the I.O.

(PW-16). There is no independent witness who had seen appellant Rameswar Kakoti

in the place of occurrence. Under the circumstances and in view of the

contradictions in the testimony of PW-1, submits Mr. Das, the learned court below was

not justified in convicting the appellant, more so when the prosecution has failed to

prove the motive behind the crime. In support of his aforesaid argument Mr. Das has

placed reliance upon the following decisions :-

1. Rabindra Kuumar Dey vs. State of Orissa [(1976)4 SCC 233]

2. Juwarsingh vs. State of Madhya Pradesh [(1980) Suppl. SCC 417]

3. Ganga Sahai and others vs. State of U.P. [(1974)4 SCC 186]

4. Arun vs. State of Tamil Nadu [(2008)15 SCC 501]

8. Mr. S. S. S. Rahman, learned counsel appearing for the appellant in Criminal

Appeal No.4/2016 has argued that save and except identification of his client by the

PW-1 in a Test Identification Parade (TIP) conducted nearly eight months after the

incident, there is no other evidence available on record so as to implicate his client.

Page No.# 8/37

Contending that the unexplained delay in conducting the TIP would be sufficient to

vitiate the trial, Mr. Rahman has argued that the impugned judgment and order of

the learned trial court, in so far as his client is concerned, is liable to be set aside due

to lack of evidence so as to sustain the conviction and sentence awarded to the

appellant Mahesh Lahori. In support of his above argument, Mr. Rahman has relied

upon a decision of the Supreme Court in the case of Hari Nath and others vs. State of

U.P. reported in AIR 1988 SC 345.

9. Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, on the other hand, has

argued that the PW-1, although not an eye-witness to the occurrence, is a star

witness in this case. He is not only an injured witness but he had also seen the three

"Bodo" boys go up the stairs along with Rameswar Kakoti and soon thereafter, he

had heard the gun shot coming from the room of the deceased. She submits that

PW-1 is the one who had first seen the victim soon after the occurrence and his

presence inside the house on the day of the incident is not disputed. This witness,

according to Mr. Jahan, has given a detailed account of the incident including the

manner in which Rameswar Kakoti had entered the house, went up the stairs,

deposited a sum of Rs.1,75,000/- in the almirah inside the room of the deceased and

thereafter made arrangements for the three assailants to sneak into the house. These

facts, having been proved by the prosecution by leading cogent evidence and the

conspiracy as well as the common intent on the part of the appellants having been

established on the face of the record, the learned trial court, according to Ms. Jahan,

has rightly convicted the two accused persons for committing the murder of

Munindra Singha Lahkar.

Page No.# 9/37

10. Referring to the evidence of the I.O. as well as the testimonies of PWs-3 and 5,

the learned Addl. P.P. has further argued that the recovery of the burnt mobile

handset belonging to the deceased from the safety tank of the house of appellant

Mahesh Lahori and the call details and other particulars pertaining to the use of the

mobile handset collected by the I.O. leaves no room for doubt that the appellant

Mahesh Lahori was one of the assailants and he, alongwith his two accomplices, had

entered the house on being lead by none other than the appellant Rameswar Kakoti

and committed the crime. Placing reliance on the decision of the Apex Court in the

case of Surendra Chauhan vs. State of M.P. reported in (2000)4 SCC 110 the learned

Addl. P.P. has argued that the physical presence of the appellant Rameswar Kakoti

at the place of occurrence and his role in facilitating commission of the crime by the

co-accused Mahesh Lahori and his two associates are good enough grounds to

convict the appellant under Section 302 IPC with the aid of Section 34 of the IPC.

11. In so far as the conviction of appellant Mahesh Lahori is concerned, the

learned Addl. P.P. submits that apart from the confession made by the appellant, the

recovery of the mobile handset from his house and the other evidence collected by

the I.O. so as to connect him with the commission of the offence wholly justifies his

conviction and the sentence awarded by the learned trial court. Under the

circumstances, submits Mr. Jahan, there is no justifiable ground for this Court to

interfere with the impugned judgment and order dated 06.07.2015.

12. Appearing for the informant, Mr. A. K. Bhuyan, learned counsel, has argued in

support of the impugned judgment by contending that in view of the evidence Page No.# 10/37

available on record, the learned trial court was wholly justified in convicting the two

appellants and awarding them the sentence of life imprisonment.

13. Mr. Bhuyan has further argued that there is no dispute about the fact that the

PW-1 was present in the house when the incident occurred and he was also attacked

by one of the three assailants viz., Mahesh Lahori leading to serious injury to the said

witness. Therefore, the evidence of PW-1 has been rightly relied upon by the learned

court below. Refuting the arguments advanced by the appellants' counsel with

regard to material contradictions in the testimony of PW-1 Mr. Bhuyan has argued

that the evidence adduced by the said witness and the version narrated by him can

very well be reconciled in the facts and circumstances of the case. Urging that there

is no cross-examination of PW-1 on any such vital point and also contending that no

contradiction of the said witness could be proved by the defence side in

accordance with law Mr. Bhuyan has argued that the testimony of PW-1 has

remained unshaken during his cross-examination. It is also the submission of Mr.

Bhuyan that the recovery of the damaged mobile handset belonging to the

deceased from the safety tank of the house of Mahesh Lahori is sufficient to establish

beyond doubt that the appellant Mahesh Lahori was a part of the gang which had

entered the house of deceased Munindra Singha Lahkar on the night of the incident

and shot him dead. In support of his above argument, Mr. Bhuyan has placed

reliance on three decisions :-

1. Omkar Namdeo Jadhao and others vs. Second Additional Sessions Judge, Bultana and another [(1996) 7 SCC 489].

2. S. Kaur (Smt) vs. Baldev Singh and others [(1997)11 SCCC 292].

Page No.# 11/37

3. Dharmendrasinh alias Mansing Ratansinh vs. State of Gujarat [(2002) 4 SCC 679].

14. Arguing for the appellant in Criminal Appeal No.215/2017 Mr. P. Bora has

contested that the learned court below has erred in law in acquitting the five

accused persons by ignoring the fact that from the testimony of the I.O. (PW-16) the

conspiracy angle and the involvement of the co-accused persons in commission of

the offence has been firmly established. According to Mr. Bora, there was sufficient

evidence available on record for the court to conclude that the three boys

belonging to the "Bodo" community were engaged by Rameswar Kalita and the five

acquitted accused persons as contract killers so as to eliminate Munindra Singha

Lahkar due to some pending grudge against him associated with the running the Gas

agency owned by the deceased.

15. Responding to the above, Mr. K. Munir, learned counsel for the respondent

Nos.3, 4 and 5, submits that the evidence adduced by PW-16 is insufficient to convict

his clients for criminal conspiracy. Save and except the testimony of PW-16, there is

nothing on record to even remotely implicate his clients with the commission of the

offence. On such grounds Mr. Munir has prayed for dismissing the appeal against

acquittal.

16. We have considered the arguments advanced by the learned counsel for the

parties and have also carefully gone through the evidence available on record.

17. At the very outset, it would be pertinent to mention herein that there is no eye-

witness to the occurrence and the prosecution case is entirely based on Page No.# 12/37

circumstantial evidence. In order to bring home the murder charge the prosecution

had examined as many as 20 witnesses including the I.O.(PW-16) the doctors PWs-4

and 8 respectively, who had examined the injured witness PW-1 and conducted

post-mortem examination on the dead body. That apart, Sri Hari Chandra Sharma

(CW-1) i.e. the Officer-in-Charge of Rangia P.S. was called as a Court witness.

18. After recording the evidence of the prosecution side the statement of the

accused persons were recorded under Section 313 of the Cr.P.C. whereby they had

denied all the incriminating circumstances put to them. As a matter of fact, appellant

Rameswar Kakoti had denied that any incident had taken place in his presence

inside the house. However, the defence side did not adduce any evidence.

19. We have already noted that the prosecution has projected the PW-1, Sri

Deepak Nath is a star witness in this case. Deepak Nath was the cook who was

present inside the house on the day of the incident. He had received injury on his

head inflicted by one of the boys of "Bodo" community responsible for shooting

Munindra Singha Lahkar. PW-1 has deposed before the court that the incident took

place on 13.12.2007 at around 7.15/7.20 p.m. in the evening on the upper floor of the

house belonging to the deceased. At the time of the incident, he was heating water

in the kitchen situated on the upper floor of the house. There is a gate near the

staircase that leads to the upper floor. The gate was locked when he was heating

water and that he had heard the sound of the gate opening. Hearing the sound, he

came out from the kitchen to have a look at the gate and saw that accused

Rameswar Kakoti was opening the lock of the gate. After the gate was opened Page No.# 13/37

Rameswar Kakoti came upstairs and he was followed by three boys belonging to the

"Bodo" community. Thereafter, Rameswar Kakoti went to the room to keep the

money. At that time, he had asked one of the boys as to who were they searching for

and they replied that they wanted to meet the owner. At that, he had replied that

the owner was not present. Then one of the boys had hit him on the head with a

pistol. Holding him, one of the "Bodo" boys took him to the kitchen and the other two

"Bodo" boys and the Manager Rameswar Kakoti went to the room of the deceased.

PW-1 has stated that a short while thereafter, he had heard sound of gunshot. Then

he came out of the kitchen and went to see the owner. He had asked Rameswar

Kakoti about the owner and he replied that "Dada" (elder brother) was no more.

Then he shouted "Dada, Dada" and went towards the room of the owner and found

that "Dada" (owner) was sitting on a chair in unconscious state and blood was

oozing out of his nape. Then he came downstairs to see if there was anyone present

but did not see anybody. He again went upstairs and raised hue and cry. Hearing the

hue and cry neighbours had gathered. The police also came and took him to

Bongaon hospital. That night, he was kept in the hospital and the following day he

was brought to the Rangia Police Station where his statement was recorded by the

police. The following day he was allowed to go home. PW-1 has further stated that a

few days later he was called to the Police Station and told that he would have to

identify the accused. Police then took him to the Nalbari Jail. He went inside the Jail

along with a Magistrate and identified two persons in a Test Identification Parade

(TIP). According to the PW-1, one of those two persons had hit him on the head with a

pistol. After the accused was identified, the Magistrate had obtained his signature on Page No.# 14/37

a paper. This witness has also deposed that he would be able to identify the two

accused persons whom he had earlier identified in the Jail and went on to say that

accused Mahesh Lahkar (present in the dock) was one of the two accused persons

whom he had identified in the Nalbari Jail. PW-1 has further stated that his employer is

the owner of a Gas Agency named "Binapani Gas Agency" and accused Rameswar

Kakoti was the manager of the Gas Agency. This witness has also deposed that the

office of the Gas Agency is in front of the owner's house and the money collected

from the Agency is kept in the house of the owner at night. This witness has also stated

that there are three keys to the lock put on the gate of the staircase leading to the

upper floor and accused Rameswar keeps one of the keys and he keep the other

two keys of the lock. There is a Chowkidar called Madhav Barman who has been

working for a long time and at the time of the incident, the Chowkidar was cooking

rice in his room in the lower floor. After about half an hour of the incident he lost his

senses.

20. During his cross-examination by accused Rameswar Kakoti, PW-1 has stated

that one "Bodo" boy took him to the kitchen and he had a pistol in his hand. The

other two boys went along with Rameswar to the owner's room. PW-1 has stated that

the "Bodo" boy had kept him confined in the kitchen for about 10 minutes. He had

reiterated that accused Rameswar keeps one of the keys of the gate near the

staircase leading to the upper floor and the remaining two keys are kept by him.

There is a chowkidar called Madhav Barman (PW-6) and at the time of the incident

he was cooking rice in his room situated at the lower floor. PW-1 has stated that on

hearing the hue and cry raised by him the neighbours came. After that he went Page No.# 15/37

down stairs shouting "Manuh marile, Manuh marile" (some has been killed). PW-1 has

also reiterated that after about half an hour of the incident he lost his senses and the

police sent him to the hospital. Accused Rameswar Kakoti went to the owner's room

to keep the money and the two "Bodo" boys followed him to the room. From a plain

reading of the evidence adduced by PW-1 it is found that this witness has remained

firm during his cross-examination.

21. PW-2, Dipankar Singha Lahkar is the son of the deceased and the informant in

this case. He was not present at Rangia when the incident took place but later on,

learnt about the incident from the people present there. The evidence adduced by

PW-2 is more or less of hearsay value. However, it would be pertinent to note herein

that PW-2, in his deposition, has stated that accused Rameswar Kakoti was the

manager of the Gas Agency "Binapani Gas Agency"owned by his father and that on

being asked, Rameswar Kakoti had told him that on the day of the incident, the

deceased and the cook (PW-1) had gone upstairs at about 6.30 p.m. after the Gas

Agency was closed. At that time he (Rameswar) went upstairs taking along with him

Rs.1,75,000/- collected in the business during the previous day. When he had opened

the iron gate with the key he had in his hand, he had seen three "Bodo" boys coming

upstairs and that one of them had hit Deepak Nath (PW-1) on his head and took him

towards the kitchen. PW-2 has also stated that the other "Bodo" boys had entered his

father's room taking Rameswar Kakoti along with them. After entering the room the

two boys had a heated conversation with his father regarding gas connection and all

of a sudden his father was shot by one of the boys on the head and then they ran

away. PW-2 has further stated that on being asked as to where the two "Bodo" boys Page No.# 16/37

had kept him, Rameswar Kakoti could not give a proper reply. PW-2 has also

deposed that on entering the room of his father in the morning, he saw that the BSNL

landline phone was disconnected and he did not find the mobile handset belonging

to his father inside the room. A little later he came to know from the Rangia Police

Station that someone had found the SIM card used by his father in his mobile phone

at Sirakhhundi road and gave the same to the police. PW-2 has confirmed that he

had lodged the ejahar Ext-1 and that Ext-1(1) was signature.

22. Sri Ajit Lahkar was an employee of GSM Solution, a mobile phone repairing

center situated at Fancy Bazar, Guwahati and he was examined by the prosecution

as PW-3. PW-3 has deposed that on 24.07.2007 the accused Mahesh Lahori gave him

one mobile phone to repair. The model number of the mobile phone was 6270. The

mobile phone was handed over to him at his residence after repairing the same. He

had delivered the mobile phone to Mahesh Lahori at his residence on 20.07.2008.

According to PW-3, after about 14 days since the mobile phone had been repaired,

his maternal uncle Jayanta Kalita (PW-5) and police came to the shop where he was

working and asked him if accused Mahesh Lahori had given a mobile phone for

repairing. He replied in the affirmative. Police took him along with them and asked

him to show the house of Mahesh Lahori. He had shown the house of Mahesh Lahori

to the police which was about 1 ½ kilometers away from their house. Police had

brought him to the court and he had recorded his statement before the Magistrate.

Ext-2 is the statement recorded before the Magistrate and Ext-2(1) and 2(2) are his

signatures. PW-3 has also stated that Mat. Ext-1 is the mobile phone which was given

to him for repairing by Mahesh Lahori. During his cross-examination, the evidence Page No.# 17/37

adduced by this witness could not be shaken. This witness was called for re-

examination by the prosecution side during which he had stated that accused

Rameswar Kakoti had told him, while coming to the court that day, that he should

adduce evidence by keeping himself in a safe position and in a way so as not to

hamper the interest of others.

23. PW-4, Dr. Jadumoni Katoky is the doctor who had treated injured Deepak

Nath (PW-1). PW-4 has deposed that on 13.12.2007 while he was working as the Senior

Medical and Health Officer at the Rangia FRU, he had examined a person called

Deepak Nath, a male aged about 17 years, who was escorted by ASI Tapan Patgiri.

On examination he found that there was a stab wound over occipital area of the

skull in the left side. There was bleeding from the injury. The injury was caused by sharp

pointed object but it was simple in nature occurring from alleged assault. There was

no other injury. PW-4 has proved the injury report Ext-3. During his cross-examination

by accused Rameswar Kakoti, PW-4 has stated that the sharp pointed object

mentioned by him could be a sharp pointed knife, a pointed iron rod etc.

24. PW-5, Sri Jayanta Kalita is the uncle of the PW-3. PW-5 has deposed that after

reaching the court at around 9.20 a.m. he went to the chamber of the Public

Prosecutor and told him that accused Rameswar Kakoti had asked him to adduced

evidence without hampering the interest of others. This witness has deposed that he

did not know the complainant or the deceased. One day he had received a call in

his mobile phone from someone who was enquiring as to whether he knows the

person in whose name the number 9854156155 was registered. He replied that the Page No.# 18/37

number was registered in the name of his nephew Ajit Lahkar (PW-3). Thereafter, one

DSP came to his shop and asked him to show where his nephew Ajit Lahkar was. Then

he took the DSP to the mobile repairing shop where his nephew was working. Later,

his nephew and himself was brought to the Rangia P.S. and then taken to the house

of Mahesh Lahori and subsequently brought to the Police Station along with a mobile

phone and its casing. PW-5 has deposed that Mat. Ext-1 is the "casing" of the Nokia

company that was recovered from the house of Mahesh Lahori. This witness has also

stated that along with his nephew Ajit Lahkar he was taken to the Magistrate for

recording his statement and Ext-4 was his statement recorded before the Magistrate.

In his cross-examination, PW-5 has stated that he did not know as to whose mobile

phone was brought to Ajit for repairing nor did he know as to why the DSP was

searching for his nephew and had brought him from his shop.

25. PW-6, Madhab Barman was working as the chowkidar in Binapani Gas Agency

when the incident took place. PW-6 has deposed that he had been working under

the owner of the agency Munindra Singha Lahkar for about 20 years. The incident

took place at about 7.00 p.m. On the day of the incident, the employees of the Gas

Agency left for their respective homes. Manager Rameswar Kakoti went upstairs

taking along with him a bag containing money. At that time he was closing the door

of the agency. He heard Deepak Nath i.e. the cook shouting "Dhar, Dhar" (catch,

catch). Then he went upstairs. Deepak Nath went towards the road. He asked him as

to what had happened and Deepak had replied that the owner had been shot at.

Going upstairs, he found the owner was lying on a chair with his face downwards.

Rameswar Kakoti also went towards the road. Police came and examined the Page No.# 19/37

deadbody of the owner. During his cross-examination by accused Rameswar Kakoti,

this witness has confirmed that he had seen Rameswar Kakoti going upstairs carrying

the bag containing money from the office. He had also stated that the office is

situated near the road. PW-6 has, however, deposed that he had not seen any other

person.

26. PW-7, Sri Sarat Kalita is a relative of the victim and one of the inquest witnesses.

He has deposed that after the incident police and Magistrate had examined the

dead body by turning it over and over again. He had seen the injury mark caused by

gunshot on the head and blood was oozing out and falling on the ground. PW-7 has

proved the inquest report Ext-6.

27. PW-8, Dr. Deepak Kumar Das was working as a Demonstrator in the

department of Forensic Medicine, GMCH on 14.12.2007 when the dead body of

Munindra Singha Lahkar was brought for post-mortem. On examination of the dead

body the doctor had found the following injuries :-

"External appearance: Stout build male dead body. White complexion, rigor

mortis present all over the body and developed. Wearing as as colour full pant,

dark brown half sweeter, green and black colour checked full shirt, white

ganjee and white jangia. Eyes and mouth partly opened. Anus and penis are

healthy. Body and wearing garments were smeared with blood.

Injuries : (1) One puncture wound present over outer half of left eyebrow

about 4 cm left to midline size 1 x 1 cm margins inverted. Entry would of bullet

wound.

Page No.# 20/37

(2) One puncture wound present on right side of scalp 3 cm behind the

right ear and 12 cm above the cervical 7 cm. Margins everted size 4 x 4cm.

Brain materials and blood seen coming out through the wound. Ext wound of

bullet injury.

Trace of wound bullet passes through the entry wound of the scalp then

through skull brain and coming out through exit wound of bullet.

Blood smear adherent to body resist washing with water."

The doctor has opined that death was instantaneous resulting from injury sustained in

the head caused by a rifle fire arm weapon. The time since death was 12 to 24 hours.

PW-8 has also proved the post-mortem report Ext-7 as well as the police forwarding of

the dead body as Ext-8. During his cross-examination by accused Rameswar Kakoti,

PW-8 has stated that he could not say as to from what distance the deceased was

fired upon but it was not a close distance.

28. Sri Pranjal Kumar Das, who was working as the Extra Assistant Commissioner

(EAC), Rangia on 13.12.2007 was examined as pw-9. PW-9 had conducted the

inquest on the dead body and submitted inquest report Ext-6. As per PW-9, there was

a sign of bullet injury over the left eye and exit wound of bullet was found near the

right ear.

29. Smt. Dipali Lahori, wife of accused Mahesh Lahori, was examined as one of

the witnesses to the seizure-list Ext-11 by means of which the I.O. had seized the

damaged and burnt part of the mobile set upon recovering the same from the house

of accused Mahesh Lahori on being led by him. Smt. Deepali lahori was examined as Page No.# 21/37

PW-10. She has proved her signature Ext-11(1) in the seizure-list but has stated that her

signature was obtained by the police by saying that her husband would be released.

Smti. Amiya Narzary (PW-11) is another seizure-list witness to Ext-11 and she has proved

her signature Ext-11(2) in the seizure-list. Similarly, PW-12, Smt. Ashari Bodo, another

seizure witness, has proved her signature Ext-11(3) in the seizure-list Ext-11.

30. PW-13, Sri ASB Laskar was posted as the Sub-Divisional Judicial Magistrate,

Rangia on 05.08.2008. PW-13 has deposed that on that day the I.O. of Rangia P.S.

Case No.534/2007 had made a prayer before him for identification of suspected

accused and the prayer was allowed on 07.08.2008 by fixing the TIP in the premises of

District Jail, Nalbari. The TIP was held on 13.08.2008 in the premises of the District Jail

and he had himself conducted the TIP at about 4.00 p.m. This witness has deposed

that the I.O. had produced one witness by the name Deepak Nath as well as the

suspects including Promod Kalita, Pulin Sarma, Rameswar Kakoti, Ashok Kr. Saloi,

Akon Barman alias Ratan Barman. The witness Deepak Nath had specifically

identified suspect Mahesh Lahori and Kabul Singh Basumatary. After conducting the

TIP he had filled up the form of TIP. Ext-12 is the TIP form and Ext-12(1) was his

signature. During his cross-examination by accused Rameswar Kakoti, PW-13 has

stated that the I.O. had produced only one witness for identification and he did not

ask the I.O. to produce more witnesses. In the cross-examination by accused Mahesh

Lahori, PW-13 has stated that the suspects were placed amongst 30 UTPs and two

persons of tribal features were present.

31. PW-14, Sri Mono Ranjan Talukdar was posted as the Scientific Officer, FSL, Govt.

Page No.# 22/37

of Assam, on 16.07.2008 when a packet was sent by the SDPO, Rangia to the FSL

through the Director for examination of the pistol cartridge and for submission of

report. PW-14 has deposed that one fired pistol cartridge marked as Ext-1 and one

fired tachuted (sic) bullet was received which was marked as Ext-2. He had

examined the samples and submitted his report which is as follows :-

"(1) Ext-1 - Fired cartridge case of 9 mm. pistol cartridge.

         (2)     Ext-2- Fired bullet of 9 mm. pistol cartridge.

         (3)     It is not possible to ascertain whether or not exhibit 2 is the fired bullet of
Ext-1.

           (4)     Ext-1 and 2 are (illegible) Factory make ammunition however
manufacturing country could not be ascertained.

Ext-13 is the report, Ext-13(1) is my signature with official designation.

Ext-14 is the forwarding report of my Director.

Ext-14(1) is the signature of Director Dr. Raj Kumar Prodyot Gohain."

During his cross-examination by the accused persons, PW-14 has denied the

suggestion that Ext-1 was not a revolver cartridge or that Ext-1 was not an

ammunition of pistol.

32. The testimony of Smt. Bandana Nath (PW-15) is found to be of no significance

in this case and therefore, we do not deem it necessary to discuss the same in any

details.

33. The investigation in connection with Rangia P.S. Case No.534/2007 was carried

out by Sub Inspector of Police Sri Moloy Kr. Acharjee, who was examined by the

prosecution as PW-16. During his deposition before the court, PW-16 has deposed that Page No.# 23/37

on 13.12.2007 he was on duty as the S.I. at Rangia P.S. At around 7.35 p.m., a

telephonic message was received in the Police Station that an incident of firing had

taken place in the house of the owner of "Binapani Gas Agency" at Ward No.3 of

Rangia Town. At that time the SDPO was also present at the Police Station. On receipt

of the information, the Officer-in-Charge Hari Sarma had made GD Entry No.322

dated 13.12.2007 and thereafter, the Officer-in-Charge along with the SDPO Anand

Prakash Tewari and TSI Jitendra Kr. Singh went to the Binapani Gas Agency along with

a police party and reached that place at around 7.41 p.m. On arriving there they

had found the dead body of Munin Singh Lahkar lying in a room in the first floor of a

two storeyed building. Seeing the dead body the Officer-in-Charge had made a

phone call to the SDO Civil, Rangia and requested him to send an Executive

Magistrate for conducting inquest. Accordingly, Executive Magistrate Sri P. K. Das had

arrived at the place of occurrence, conducted inquest on the dead body and

prepared the inquest report. Photographs of the place of occurrence was taken and

the Officer-in-Charge of the Rangia P.S. had also requisitioned officers from the

Veterinary Department to examine the dogs since they did not bark. It was suspected

that the dogs were administered sedative. PW-16 has further stated that he had

recorded the statements of the witnesses present there including that of Dipankar

Singh Lahkar, manager Rameswar Kakoti, Binay Das and chowkidar Madhav

Barman. Dipannkar Singh Lahkar had lodged a written ejahar based on which

Rangia P.S. Case No.534/2007 was registered under Sections 302/325/34 of the IPC

read with Section 25(1)A of the Arms Act and the Officer-in-Charge had entrusted

him with the responsibility of carrying out the investigation. In course of his deposition Page No.# 24/37

PW-16 has also stated that on suspicion he had brought Rameswar Kakoti to the

Police Station for interrogation. During interrogation, Rameswar Kakoti had told that

at the time of the incident he was in the house of Munindra Singh Lahkar; at that time,

coming to the first floor of the house three youths who seem to have belonged to the

"Bodo" community had entered the house by assaulting the cook Deepak Nath; they

entered inside the room of Munindra Singh Lahkar; he had heard the sound of

gunshot and thereafter, those three boys had come down from the first floor and

went away. The I.O. has further deposed that he had recorded the statement of

injured Deepak Nath and sent him for medical check up on the day of the incident.

Deepak had stated in the same manner as Rameswar Kakoti had said. The post-

mortem report prepared on the dead body was collected by him and blood sample

report of the three dogs belonging to the deceased was also collected from FSL,

Khanapara, which had certified that no poison was found.

34. PW-16 has also stated that he did not find the SIM card bearing No.9435148130

being used by Munindra Singh Lahkar. However, he had collected the call details of

the said SIM card during the period from 01.12.2007 to 13.12.2007. The miscreants took

away the mobile handset at the time of the incident. The son of the deceased had

furnished information regarding the model number of his father's mobile handset

which was Nokia 6270. After the CDR analysis it was found that the IMEI (International

Mobile Equipment Identity) of the mobile handset was 357579005509730. From the

call details no further clue could be gathered. As such, an application was submitted

to the Nodal officer of Wireless Network through the Addl. S.P. (Hdqr.), Kamrup to find

out as to whether any other SIM card was being used in the said mobile phone. At Page No.# 25/37

9.15 p.mm. of 21.07.2008 the Addl. S.P. (Hdqr) had informed him over phone that the

SIM card No.9854156155 (Aircel) was currently being used in the Nokia handset

belonging to deceased Munindra Singh Lahkar. On receipt of such information and

upon making enquiry with the Telecom Company it was found out that the SIM card

was registered in the name of Smt. Sabitri Deka of village Singarpara under Baihata

Chariali Police Station. Upon receipt of such information he had immediately

proceeded to apprehend Sabitri Deka and on reaching the place asked Sabitri Deka

to deliver the mobile hand set but she replied that she did not know how to use a

mobile phone and that her son Biraj Deka was using that SIM card. Biraj Deka was

questioned by him whereupon he replied that he had procured the two SIM cards in

the name of his mother Sabitri Deka but he could not say to whom had he given that

SIM. Biraj Deka was brought to the Police Station for further enquiry. In this manner, the

I.O. (PW-16) has given a detailed account of the investigation conducted by him so

as to trace out the SIM card and the mobile handset used by the deceased.

Eventually, by following the leads they had found out Jayanta Kalita (PW-5) and Ajit

Lahkar (PW-3) wherefrom it emerged that the mobile handset of the deceased was

repaired by PW-3 Ajit Lahkar in the mobile repairing shop where he was working. PW-3

had told the I.O. that one "Bodo" boy by the name of Mahesh Boro of village

Borkhata under Tamulpur P.S. had given him a Nokia 6270 mobile set for repairing

and that he had checked the mobile handset by inserting that SIM card. Ajit Lahori

had also told him that he would be able to show the house of Mahesh Boro. At

around 4.00 p.m. on that day he had returned to Rangia from Mangaldoi. In the

meantime, DSP Sanjeev Saikia had brought Jayanta and Ajit Lahhkar to Rangia P.S. Page No.# 26/37

and he had interrogated Ajit Lahkar who told him that Mahesh Boro had given him

the Nokia mobile handset for repairing; that Mahesh had asked him to change the

casing of the mobile handset and that after repairing he had checked the handset

by inserting SIM card bearing no. 9854156155 and had rung up phone

no.9859508319. That very day the police had launched an operation under the

guidance of Additional S.P. (Hdqr); went to Batabari Gaon and apprehended

Mahesh Boro. Ajit Lahkar (PW-3) had led the police to the house of Mahesh Boro and

Jayanta Kalita (PW-5) was also with them. At around 12-12.30 a.m. Mahesh Boro alias

Mahesh Lahori was apprehended from his house and while making the search in the

house of Mahesh Lahori he had found the original casing of Nokia 6270. Ajit Lahkar

had identified the casing by saying that he himself had replaced that original casing.

PW-16 has deposed that besides the casing, he had also seized a Nokia BL-5C battery

in presence of Jayanta Kalita (PW-5) and Ajit Lahkar (PW-3) by seizure-list Ext-18 and

Ext-18(1) is his signature.

35. In his deposition PW-16 has further stated that upon arriving at the Rangia P.S.

he had interrogated Mahesh Lahori wherein he had confessed that he had

accompanied accused Kabal Singh Basumatary and Terenam Boro and entered the

house of Munindra Singh Lahkar in the evening hours of 13.12.2007; that they had shot

Munindra Singh Lahkar dead; that it was Kabal Singh Basumatary who had fired the

shot with a pistol and that they had assaulted the cook Deepak Nath. From the

testimony of PW-16 it further appears that the accused Mahesh Lahori had told him

that a conspiracy was hatched by Rameswar Kalita, Promode Kalita, Ashok Saloi and

Akon Bora, the manager of the extension Branch of Binapani Gas Agency; that these Page No.# 27/37

four persons had entered into a deal with Terenam Boro, Kabal Singh Basumatary

and he himself; that these four persons had agreed to pay a sum of Rs.5 lakhs to

them. According to PW-16, accused Mahesh Lahori had also told him that a sum of

Rs.1,50,000/- had already been paid to them through Rameswar Kakoti. Mahesh

Lahori had also told him that he would be able to show the house of Kabal Singh and

Terenam Boro. On the basis of such information two police teams were made ready.

One of the team was led by the PW-16 while the Additional S.P. (Hdqr) Sapnil Deka

had led the other team which went towards Goreswar in search of Kabal Singh

Basumatary and Terenam Boro. The Additional SP took Mahesh Lahori along with him.

PW-16 has stated that he went to Murara searching for Rameswar Kakoti. Upon

finding him at home he had arrested Rameswar and on being lead by Rameswar

Kakoti he went to the house of Promod Kalita and Ashok Saloi; arrested both of them

and thereafter returned back to the Rangia Police Station for interrogation. PW-16 has

further stated that during interrogation of the aforesaid arrested persons, they had

confessed that in collusion with Akon Barman they had killed Munin Singh Lahkar by

engaging contract killers and the names of three contract killers were Kabul Singhh

Basumaytary, Terenam Boro and Mahesh Lahori. According to the PW-16, they had

also confessed that a sum of Rs.5 lakhs was offered to the contract killers; Rameswar

Kakoti has confessed that he had given Rs.60,000/-, Ashok Kalita had given

Rs.35,000/-, Promod Kalita had given Rs.10,000/- and Pulin Sarma had given

Rs.10,000/- to the three contract killers. He (PW-16) then went to the Binapani Gas

Agency searching for Pulin Sarma and upon finding him there he had arrested Pulin

and brought him to the Police Station. PW-16 has deposed that during interrogation, Page No.# 28/37

Ashok Saloi had also confessed that he had given Rs.35,000/-; Promod Kalita had also

confessed that he had given Rs.10,000/- on 25.07.2008. He (PW-16) had again

interrogated Mahesh Lahori in the Police Station regarding the mobile phone of

Munin Singh Lahkar. At first Mahesh said that he had thrown the mobile phone into

the river. However, after tough interrogation he had confessed that while in the

Rangia P.S. under arrest, his wife had come there to meet him and then he had

asked his wife to burn the mobile handset by breaking it and throw the same in the

latrine. Upon receiving that information he had immediately rushed to the place of

Mahesh Lahori and on being shown by Dipali Lahori (PW-10), seized certain articles

from the tank of the latrine which are as follows :-

"(i) One burnt back portion of mobile set in burnt and broken condition where no.9854956 is written.

       (ii)     Front portion of mobile handset in burnt condition.

       (iii)    Brown coloured backside cover (of mobile).

       (iv)     Keypad numbering 1 to 9, *, #.

       (v)      Internal circuit.

       (vi)     Backside cover with camera outlet.

       (vii)    One steel plate like object where no.6D1011 is written.

       (viii)   One burnt plastic object.

       (ix)     Other burnt plastic objects."

The I.O. has also stated that he had obtained the signature of Dipali Lahari (PW-10) in

the seizure-list Ext-11.

36. In his elaborate testimony recorded before the court, the PW-16 has stated Page No.# 29/37

that accused Akon Barman had admitted that he, Rameswar Kakoti, Ashok Saloi,

Promode Kalita and Bokul Boro had hatched a conspiracy to murder Munin Singh

Lahkar and that he had paid Rs.40,000/- to the contract killers. In course of

investigation he could also learnt that Akon Barman was the owner of the extension

counter of Binapani Gas Agency; that as his business had prospered, Akon Barman

had asked Munin Singh Lahkar to increase the number of cylinders; that Munin Singh

Lahkar demanded a sum of Rs.1 lakh and the amount was paid to him but Munin

Singh Lahkar did not deliver the cylinders; that a dispute had arisen between them

over the aforesaid issue and a conspiracy was hatched to murder Munin Singh Lahkar

for that reason. During his cross-examination by the defence side, the evidence

adduced by the PW-16 could not be shaken and the witness remained firm.

37. Md. Nazmul Sarkar was examined by the prosecution as PW-18. This witness has

deposed that after offering "fajar namaz" as he was coming through the road he

saw a SIM card lying there. He took up the SIM card and inserted it inside his mobile

handset, rang up the owner. It was an Aircel SIM card and the name of the person

was A. Hazarika. When he rung up the person answered the call by saying that he

knew nothing about the SIM card. Thereafter, he had rung up another person who

had alphabet "B" in the initial of his name and told that he had found the SIM card.

The person relied that the SIM card belonged to him and that he would come and

collect it. Later, he rung up and said that the SIM card belonged to him and that it

had fallen down while he was going in that direction. Thereafter, police from Rangia

P.S. asked him about his whereabout and he told them his home address at

Sirakhundi Swiss Gate. Police came near the mosque where his residence is situated Page No.# 30/37

and he delivered the SIM card to the police.

38. PW-19, Sri Mohit Chandra Lahhkar is the younger brother of the deceased. He

is one of the witnesses in seizure-list Ext-5. This witness has not seen the occurrence.

Therefore, his evidence is also not considered to be of much significance

39. Sri Karuna Kalita was another prosecution witness who was examined as PW-

20. PW-20 is the brother-in-law of the deceased. He has deposed that upon receiving

the information he went to the house of his brother-in-law and saw him lying dead on

a chair in a sitting posture with a bullet injury in his head. PW-20 has proved his

signatures in the seizure-lists Exts- 21 and 22 and has identified Mat. Ext.3 and Mat. Ext-

4 which were the seized cup and saucer respectively.

40. Sri Hari Ch. Sharma, who was posted as the Officer-in-Charge of Rangia Police

Station on the day of the occurrence was examined as Court witness (CW-1). CW-1

has deposed that upon receipt of information he had made GD Entry No.322 dated

13.12.21007 and proceeded to the place of occurrence along with S.I. Moloy Kr.

Acharjee, G. K. Singh and other officers. Subsequently, Sri Dipankar Singha Lahkar

had lodged the written ejahar Ext-1 and he had entrusted the responsibility of

carrying out investigation in the case upon S.I. Moloy Kr. Acharjee.

41. After going through the evidence available on record, we are convinced that

the prosecution case is heavily dependent on the testimony of PW-1 in so far as the

conviction of appellant Rameswar Kakoti is concerned. In so far as the conviction of

appellant Mahesh Lahori is concerned, the same is evidently on the basis of the

testimony of PWs- 3, 5, 10 and 16 as well as the TIP conducted with the endorsement Page No.# 31/37

of PW-13 whereby the PW-1 had identified him as one of the assailants.

42. In so far as the evidence of PW-1 is concerned, we find that his testimony is

categorical as regards the presence of Rameswar Kakoti in the place of occurrence

at the time when the incident took place. PW-1 has stated that the three boys

belonging to the "Bodo" community had entered the house through the gate near

the staircase, the lock of which was opened by appellant Rameswar. Those boys

went upstairs following Rameswar Kakoti and upon entering the room of the

deceased had fired gunshot killing the deceased. This witness has also stated that

Rameswar Kakoti went up to the room to keep the money. When he had asked the

boys belonged to the "Bodo" community as to who they were looking for, they

replied that they wanted to see the owner. Then one of the boys had hit him with a

pistol and took him to the kitchen. The two boys and the manager Rameswar Kakoti

went to the room of the owner. There is no cross-examination of the PW-1 on the

aforesaid point.

43. It is no doubt correct that in his deposition the PW-1 had subsequently stated

that when Rameswar Kakoti had gone upstairs and kept the money in the almirah of

the owner, at that time three unknown boys armed with pistol had gone upstairs and

to such extent there appears to be some contradiction in the testimony of the PW-1.

However, we find that here also there is no cross-examination of the witness on the

aforesaid point. From a reading of the evidence adduced by the PW-1 in its entirety

we find that the so called contradiction in the testimony of PW-1, as noticed herein

above, is capable of reconciliation in the circumstances projected by the Page No.# 32/37

prosecution in as much as the aforesaid statement is not in conflict with his original

stand that the three boys went upstairs after Rameswar Kakoti. Therefore, slight

variation in the description, in our view, would not impeach the credibility of the

witness (PW-1), more so when there was no cross-examination of PW-1 on the

aforesaid point.

44. Mr. Das, learned senior counsel, has forcefully argued that there are material

contradictions and improvements in the testimony of PW-1. Yet, we find that

contradictions, if any, in the testimony of PW-1 has not been properly proved by the

defence side by confronting the witness with his previous statement made before the

police or during the cross-examination of the I.O. Under the circumstances, we are

not inclined to accept the said submission of the learned senior counsel appearing

for the appellant Rameswar Kakoti that the evidence of PW-1 was liable to be

discarded due to inherent contradictions.

45. The evidence adduced by PW-1 in so far as the presence of appellant

Rameswar Kakoti at the place of occurrence at the relevant point of time also finds

due corroboration from the testimonies of PWs-2 and the chowkidar (PW-6). During

the cross-examination of the prosecution witnesses, the accused persons also did not

dispute his presence in the place of occurrence. Notwithstanding the same, we find

that while recording his statement under Section 313 Cr.P.C. accused/appellant

Rameswar Kakoti has denied any personal knowledge about the incident.

46. Apart from the above, it has also come out from the evidence of PW-2 that

when enquired by him, appellant Rameswar Kakoti had failed to offer any Page No.# 33/37

explanation as to his role and position when the incident took place. We also find

that appellant Rameswar Kakoti, though present in the place of occurrence, did

practically nothing to raise an alarm on being attacked by the three "Bodo" boys.

47. It has been proved by cogent evidence available on record that the iron gate

near the staircase for going upstairs to the room of the owner used to remain under

lock and key and out of the three keys, one key was with the accused Rameswar

Kakoti. It is also the established position of fact that on the day of the incident

Rameswar Kakoti had opened the lock of the iron gate and went upstairs to the room

of the owner to keep the sum of Rs.1,75,000/- being the collection money in the Gas

Agency in the previous day. But in doing so, the appellant had left the gate open

and taking advantage of the same the three boys had entered the house through

the iron gate. Thereafter, they went upstairs and shot the owner. From the evidence

of PW-1 it has also been firmly established that appellant Rameswar Kakoti, instead of

resisting the three boys had assisted them to reach the owner's room. The

collaboration between Rameswar Kakoti and the "Bodo" boys stands further

established from the fact that there was no confrontation between the boys and

Rameswar although the boys had unauthorisedly entered the house. This also goes to

show that all of them were acting as per a pre-conceived plan and with a common

intention to murder the deceased. Under the circumstances, it will be difficult for this

Court to infer that the entry of the three "Bodo" boys inside the house through the

iron gate was a mere coincidence. Rather, the only inference that can be drawn by

the Court, in the facts and circumstances of the case, is that the three boys were

waiting outside the boundary wall of the house of the deceased knowing fully well Page No.# 34/37

that the iron gate would be left open by "someone" so that they could enter the

house. Since there were only two persons who had the keys to the iron gate, one of

them being the accused Rameswar Kakoti and the other being PW-1, who is an

injured witness in this case, the obvious conclusion that can be drawn by the court is

that it was none other than the accused/appellant Rameswar Kakoti who had

deliberately left the gate open so as to let the three boys enter the house and kill the

owner. In view of the above discussions, we are of the view that the learned trial

court has rightly convicted the appellant Rameswar Kakoti under Section 302/34 of

the IPC and sentenced him to undergo life imprisonment. For the foregoing reasons,

the decision cited at the bar by Mr. Das, learned senior counsel for the appellant, in

our considered view, would not have any bearing in the facts of this case.

48. In so far as the conviction of the appellant Mahesh Lahori is concerned, here

also we find that the I.O. has conducted extensive investigation and collected

evidence including the call details record (CDR), the SIM card used by the owner

prior to his death as well as the damaged mobile handset which was taken away by

the assailants after the incident. With the help of PWs-3, 5 and 10 the I.O. could

recover the burnt and damaged portion of the casing of the handset from the latrine

of the house belonging to the appellant Mahesh Lahori. The bulk of evidence led by

the prosecution side, as discussed herein above, leaves no room for doubt that the

mobile handset of the deceased was taken away by the appellant Mahesh Lahori

after the incident and with a view to conceal the evidence he had changed the

casing of the handset with the help of PW-3 and thereafter tried to dispose of the

damaged casing of the handset in his latrine. The recovery of the damaged portion Page No.# 35/37

of the Nokia mobile handset was evidently made on the basis of disclosure made by

the appellant Mahesh Lahori himself. The wife of the appellant Mahesh Lahori i.e.

PW-10 is herself a seizure witness to such recovery.

49. The PW-1, who was evidently present in the house at the time when the

incident took place, had seen the three boys belonging to the "Bodo" community.

He has identified appellant Mahesh Lahori and the co-accused Kabul Singh

Basumatary during the TIP conducted on 13.08.2008. From the evidence of the

Magistrate (PW-13) it is established that the proper procedure, as required under the

law, was followed by the I.O. while carrying out the TIP.

50. In the case of Hari Nath and others (supra) the Hon'ble Supreme Court has

held that unexplained and unreasonable delay in putting up the accused persons for

a test identification would denude the credibility of the test itself, Mr. Rahman,

learned counsel for the appellant, has placed heavy reliance upon the said decision

of the Apex Court to impeach the credibility of the TIP conducted in this case on the

ground of unexplained delay. However, on a meticulous examination of the materials

available on record, we find that the appellant Mahesh Lahori was arrested on

24.07.2008 on the basis of statements of co-accused persons recorded by the I.O.

Thereafter, request for TIP was made on 05.08.2008 before the Magistrate. Ultimately,

the TIP was conducted on 13.08.2008. The delay of few days since 05.08.2008 was due

to the factors beyond the control of the I.O. Therefore, it would not be correct to say

that there is unexplained or unreasonable delay in conducting the TIP in this case.

Having regard to the facts and circumstances of this case, we are, therefore, of the Page No.# 36/37

view that the ratio laid down in Hari Nath and others (supra), would not be

applicable in the facts of the present case. Save and except making an endeavour

to impeach the credibility of the TIP, Mr. Rahman has not urged any other ground

before us so as to assail the conviction of his client. However, on a proper evaluation

of the evidence available on record, we are of the opinion that there is sufficient

evidence to convict appellant Mahesh Lahhori.

51. From a careful reading of the evidence adduced by the prosecution side, we

are of the unhesitant opinion that the prosecution has succeeded in establishing the

charges brought against the appellants Rameswar Kakoti and Mahesh Lahori beyond

reasonable doubt. As such, no interference with their conviction and sentence

awarded by the learned trial court by the impugned judgment and order dated

06.07.2015, in our considered opinion, is called for in these appeals.

52. Coming to the Criminal Appeal No.215/2017, as noticed above, the instant

appeal has been filed assailing the impugned judgment and order dated 06.07.2015

acquitting the five accused persons named herein before. The only ground urged

before us by the learned counsel for the appellant is pertaining to improper

appreciation of the evidence adduced by the I.O. (PW-16) leading to acquittal of

the five accused persons. However, on a meticulous reading of the evidence of PW-

16 we are unable to agree with the submissions advanced by Mr. Bora. In our view

the testimony of PW-16 alone would not be sufficient to convict the five accused

persons for hatching a criminal conspiracy to murder the owner of the Gas Agency

by engaging contract killers. During his deposition before the court, PW-16 has merely Page No.# 37/37

mentioned about the alleged confessions made by the co-accused persons during

their interrogation while in police custody. Law is well settled that any confession

made by the accused person during the course of investigation and while in police

custody would be inadmissible evidence. The I.O. has evidently not got the

confessional statement of any of the accused persons recorded before the

Magistrate under Section 164 Cr.P.C. and there is no explanation as to why the same

was not done. The fact that the I.O. had deposed before the court as regards the

alleged confession of the accused persons pertaining to the conspiracy theory, as

noticed above, not being evidence admissible in law and in the absence of any

other evidence available on record to corroborate the I.O. as regards the complicity

of the acquitted accused persons, we do not see any good ground to reverse the

finding of the learned trial court in so far as the acquittal of the five accused persons

is concerned. The Criminal Appeal No.215/2017 is, therefore, held to be devoid of any

merit and is accordingly dismissed.

53. For the reasons stated herein above, all the three appeals are held to be

devoid of any merit and are accordingly dismissed.

Office to send back the LCR.

                                JUDGE                              JUDGE

T U Choudhury




Comparing Assistant