Gauhati High Court
Ahon Wangsa vs The State Of Arunachal Pradesh And ... on 22 December, 2022
Page No.# 1/38
GAHC010059692021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./97/2021
AHON WANGSA
S/O- SRI MATELEM WANGSA, PERMANENT R/O- VILL.- KONSA, P.O. AND
P.S. PONGCHAU, DIST.- LONGDING, ARUNACHAL PRADESH, PIN- 792131.
VERSUS
THE STATE OF ARUNACHAL PRADESH AND 2 ORS.
REP. BY THE PUBLIC PROSECUTOR, ARUNACHAL PRADESH.
2:SAHNAJ HUSSAIN
S/O- SRI TUTA MIAN
R/O- LONGDING TOWN
LONGDING UNDER LONGDING POLICE STATION
DIST.- LONGDING
ARUNACHAL PRADESH.
3:ANWAR UDDIN
S/O- LATE MUZAMIL ALI
R/O- MEDAL PART-II UNDER KARIMGANJ POLICE STATION IN THE
DISTRICT OF KARIMGANJ
ASSAM
Advocate for the Petitioner : MR. S D PURKAYASTHA
Advocate for the Respondent : PP, A P
Linked Case : Crl.A./194/2020
NIPEN DAS @ KALA
S/O- SRI NONI GOPAL DAS PURKAYASTHA
PERMANENT RESIDENT OF VILLAGE TERA CHERRA UNDER RATABARI
POLICE STATION IN THE DISTRICT OF KARIMGANJ
Page No.# 2/38
ASSAM
PIN- 788737 AND PRESENT RESIDENT OF VILLAGE- JADUA
LONGDING BAZAR
LONGDING UNDER LONGDING POLICE STATION IN THE DISTRICT OF
LONGDING
ARUNACHAL PRADESH
PIN- 792131.
VERSUS
THE STATE OF ARUNACHAL PRADESH AND 2 ORS.
REP. BY P.P.
ARUNACHAL PRADESH.
2:SRI SAHNAJ HUSSAIN
S/O- SRI TUTA MIAN
R/O- LONGDING TOWN
LONGDING UNDER LONGDING POLICE STATION IN THE DISTRICT OF
LONGDING
ARUNACHAL PRADESH
PIN- 792131. (INFORMANT).
3:SRI ANWAR UDDIN
S/O- LATE MUZAMIL ALI
R/O- MEDAL PART-II UNDER KARIMGANJ POLICE STATION IN THE
DISTRICT OF KARIMGANJ
ASSAM
PIN- 788711.
------------
Advocate for : MR. B M CHOUDHURY
Advocate for : PP
A P appearing for THE STATE OF ARUNACHAL PRADESH AND 2 ORS.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
Dates of hearing : 06.12.2022, 07.12.2022 & 08.12.2022.
Date of judgment : 22.12.2022.
Page No.# 3/38
JUDGMENT &ORDER (CAV)
(Suman Shyam, J)
Both these appeals arise out of judgment dated 20.07.2020 passed by the
learned District & Sessions Judge, Khonsa in Sessions Case No.04/2019 and therefore,
are being taken up together for disposal by this common order.
2. We have heard Mr. S. D. Purkayastha, learned counsel for the appellant in
Criminal Appeal No.97/2021 and Mr. B. M. Choudhury, learned counsel appearing for
the appellant in Criminal Appeal No.194/2020. We have also heard Mr. N. N. B.
Choudhury, learned Public Prosecutor, State of Arunachal Pradesh appearing for the
State/respondent No.1. Mr. Azad Ahmed, learned counsel has appeared on behalf
of the informant/respondent No.2 in both these appeals.
3. The prosecution case, briefly stated, is to the effect that the victim Anwar
Uddin had a mobile phone shop at the Longding Market. Initially, the shop of Anwar
Uddin was situated towards the lower side of the market but since his mobile phone
business did not pick up well at that location, hence, he had shifted his shop "P. K.
Mobile" to the Longding market, by the side of the electronic shop run by appellant
Nipen Das @ Kala. The re-location of the mobile phone shop of Anwar Uddin did not
go down well with his competitor Nipen Das as a result of which, a business rivalry had
cropped up in between appellant Nipen Das @ Kala and the victim Anwar Uddin. In
order to silence his business rival, Nipen Das had conspired to eliminate Anwar Uddin
and accordingly, he had hired appellant Ahon Wangsa to kill Anwar Uddin. On
03.02.2019, Nipen Das had asked Ahon Wangsa to cut Anwar Uddin with a 'dao' and
Page No.# 4/38
kill him but when Ahon Wangsa expressed his inability to do so, Nipen Das had
handed over a jug of acid to Ahon Wangsa, who then went to the shop of Anwar
Uddin and threw the acid on the face of Anwar Uddin causing grievous injury to him
while six other persons including some of the customers present in the shop had also
received injury due to acid burns. Nipen Das had promised to pay a sum of
Rs.10,000/- to Ahon Wangsa for throwing acid on Anwar Uddin.
4. On 03.02.2019, Shri Sahnaj Hussain i.e. the brother of the victim, had lodged an
ejahar before the Officer-in-Charge of Longding Police Station reporting the incident.
In the ejahar, it was mentioned that around 17:43 hours on that day, an unknown
miscreant suddenly came to "P. K. Mobile Shop" located at the Main Tiniali, Longding
and threw acid from a jug on the face of his elder brother Md. Anwar Uddin. Six other
persons present in the shop had also been sprinkled with acid. Based on the ejahar
dated 03.02.2019, Longding Police Station Case No.07/2019 was registered under
section 326(A) of the Indian Penal Code (IPC) and the matter was taken up for
investigation. During the course of investigation, police had recorded the statement
of the witnesses and had also got the confessional statement of accused Ahon
Wangsa recorded by the Judicial Magistrate First Class (J.M.F.C.). The statement of
witness Manai Wangsa was also recorded by the Magistrate. On completion of
investigation, charge-sheet was submitted under sections 120B/326(A) of the IPC
against three accused persons viz., Nipen Das @ Kala, Ahon Wangsa and Puman
Wangnow.
5. As it was a case triable by the Sessions Court, the matter was committed to the
Page No.# 5/38
Court of District & Sessions Judge, Longding at Khonsa. The learned trial court had
framed charges against the accused persons under sections 120(B)/326-A read with
section 34 of the IPC. The accused persons were accordingly, subjected to trial.
6. During trial, the prosecution side had examined as many as 10 witnesses. That
apart, the Judicial Magistrate First Class, Longding, who had recorded the statement
of the accused Ahon Wangsa under section 164 Cr.P.C. was also examined as CW-1.
After recording the evidence of the prosecution side, the statement of the accused
persons were recorded under section 313 of the Cr.P.C. wherein they had generally
refused to comment on the incriminating materials placed before them and claimed
ignorance. On conclusion of trial, the learned Sessions Judge had convicted the two
appellants under sections 120B read with 326(A)/34 IPC and sentenced each of them
to undergo rigorous imprisonment for 14 years for committing the offence under
sections 120B and 326(A) of the IPC and also to pay a fine of Rs.12,00,000/- (Rupees
Twelve Lakhs) with default stipulation. However, the co-accused Puman Wangnow
was acquitted on the ground that the prosecution could not prove the charges
brought against him beyond reasonable doubt.
7. Mr. S. D. Purkayastha, learned counsel appearing for the appellant in Criminal
Appeal No.97/2021 has assailed the impugned judgment on several grounds.
According to Mr. Purkayastha, the prosecution has failed to establish that the liquid
substance allegedly thrown by the accused Ahon Wangsa was acid by obtaining FSL
report so as to bring the case within the ambit of section 326(A) of the IPC. Mr.
Purkayastha has also argued that the confessional statement of his client (Ext-10) was
Page No.# 6/38
not recorded after due compliance of the mandatory provisions of section 164(2)
and (4) of the Cr.P.C inasmuch as the accused was not explained by the Magistrate
that he was not bound to make a confession and if he did so, it might be used
against him as evidence. The learned counsel further submits that the confessional
statement (Ext-10) also does not go to show that the same was truthful and voluntary.
According to the learned counsel, Ext-10 was inadmissible in the eye of law due to
procedural violations and hence, ought not to have been relied upon by the learned
court below. In support of his above contentions, Mr. Purkayastha has relied upon the
following decisions :-
(1) Sarwan Singh Rattan Singh vs. State of Punjab reported in AIR 1957 SC
637.
(2) Dhananjay Reddy vs. State of Karnataka reported in (2001)4 SCC 9.
(3) Babubhai Udesinh Parmar vs. State of Gujarat reported in (2006) 12 SCC
268.
(4) Rabindra Kumar Pal @ Dara Singh vs. Republic of India reported in (2011)
2 SCC 490.
8. Mr. Purkayastha has further argued that during his examination under section
313 of the Cr.P.C., the appellant/accused did not admit of having made a
confession before the Magistrate and therefore, the alleged confession (Ext-10) ought
to be treated as a retracted confession. By referring to the decision of the Supreme
Court in the case of Aloke Nath Dutta & others vs. State of West Bengal reported in
(2007) 12 SCC 230 and Shankaria vs. State of Rajasthan reported in (1978) 3 SCC 435
Mr. Purkayastha has argued that the court cannot base conviction of an accused
Page No.# 7/38
solely on a retracted confession without there being any corroborative evidence.
9. By referring to the findings and observations recorded by the learned trial
court in the impugned judgment, the learned counsel for the appellant has argued
that the learned court below has mis-read the statement of PW-6, Manai Wangsa
recorded under section 164(5) of the Cr.P.C. and treated the same as a substantive
piece of evidence while observing that the said witness had become hostile although
such a conclusion was clearly unsustainable in the eye of law. Referring to the
evidence of the Investigating Officer (IO), Mr. Purkayastha has further submitted that
by failing to produce the CCTV footage as well as the CDR, the entire basis of the
prosecution story has been rendered fragile inasmuch as the testimony of PW-8 of
having identified appellant Ahon Wangsa after going through the CCTV footage
available from the shop of accused Nipen Das has become inadmissible evidence
due to non-compliance of Section 65B of the Indian Evidence Act. To drive home the
point, Mr. Purkayastha has relied upon the decision of the Supreme Court rendered in
the case of Anvar P.V. vs. P. K. Basheer and others reported in (2014) 10 SCC 473 as
well as in the case of State (N.C.T. of Delhi) vs. Navjot Sandhu @ Afsan Guru reported
in (2005) 11 SCC 600 to contend that any form of printout taken from an electronic
device cannot be accepted as evidence without a certificate being issued under
section 65B of the Evidence Act.
10. The learned counsel for the appellant Ahon Wangsa has also argued that the
prosecution has failed to prove any agreement between the accused persons to
commit a crime and therefore, the charge brought under section 120B of the IPC also
Page No.# 8/38
could not be substantiated. On such ground the learned counsel has prayed for
setting aside the impugned judgment and for acquittal of his client due to want of
evidence.
11. While supporting the submissions made by the learned counsel for the
appellant in Criminal Appeal No.97/2021, Mr. B. M. Choudhury, learned counsel
appearing for the appellant Nipen Das @ Kala in Criminal Appeal No.194/2020 has
submitted that his client was arrested on 01.03.2019 whereas the mobile phone from
which threatening calls were allegedly made to the victim was seized from the shop
of the appellant on 04.03.2019. Therefore, it is not a case where the mobile phone
was seized from the custody of the appellant Nipen Das. Moreover, submits Mr.
Choudhury, even Ext-3 seizure memo does not mention the IMEI number of the
mobile phone and therefore, it is doubtful as to whether the mobile phone seized by
Ext-3 at all has any nexus with the occurrence. Mr. Choudhury further submits that the
I.O. had failed to collect evidence including the CDR so as to establish that phone
calls were indeed made to the victim giving him a threat. Under the circumstances,
submits Mr. Choudhury, there is no evidence available on record so as to convict his
client under section 326(A) read with section 120B of the IPC.
12. By relying upon a decision of the Supreme Court rendered in the case of
Haricharan Kurmi vs. State of Bihar reported in AIR 1964 SC 1184 Mr. Choudhury has
further argued that the court cannot start with the confession of a co-accused
person. He submits that there must be other evidence on record pointing at the guilt
of the co-accused and it is only after an opinion is formed based on such evidence
Page No.# 9/38
that the confession of the co-accused person can be looked into so as to derive
assurance as to the conclusion of guilt. According to Mr. Choudhury, save and
except the confessional statement of appellant Ahon Wangsa, which was also not
recorded in compliance with the mandatory prescription of law, there is nothing on
record to even remotely implicate his client with the commission of an offence
punishable under the law. Such being the position, according to Mr. Choudhury, the
present is a fit case for acquittal.
13. Responding to the above, Mr. N. N. B. Choudhury, learned Public Prosecutor,
State of Arunachal Pradesh, has argued that sufficient evidence has been brought
on record by the prosecution to establish the charges framed against both the
appellants/accused persons. Mr. Choudhury submits that the confessional statement
of accused Ahon Wangsa was recorded after due compliance with the prescription
of section 164 Cr.P.C. According to Mr. Choudhury, the accused persons were given
two days time for reflection in the judicial custody before recording their statement.
The fact that the learned Magistrate had explained the accused persons the
consequence of their confession stands established from the fact that on being so
explained, the appellant Nipen Das had refused to record his statement whereas
appellant Ahon Wangsa had chosen to go ahead with the same. The aforesaid fact,
viewed in the light of the evidence adduced by the Magistrate (CW-1), according to
Mr. Choudhury, would leave no room for doubt that the statement of accused Ahon
Wangsa was recorded by the learned Magistrate after following the due procedure
laid down by law. Contending that once the confession is found to be recorded in
compliance with the statutory provisions of law and the same appears to be
Page No.# 10/38
voluntary and truthful, the statement of the accused can be and has been rightly
relied upon by the learned trial court. In support of his above argument Mr.
Choudhury has relied upon the decision of the Supreme Court in the case of
Manoharan vs. State by Inspector of Police, Variety Hall Police Station, Coimbatore
reported in (2020) 5 SCC 782. Contending that the defence side did not raise any
objection as regards the admissibility of Exts-9 and 10 when those were introduced by
the witnesses, Mr. Choudhury has also argued that in the absence of any objection
raised by the defence counsel, the appellants cannot now assail the validity of Exts-9
and 10 i.e. the statements of PW-6 and appellant Ahon Wangsa respectively,
recorded by the learned Magistrate under Section 164 Cr.P.C.
14. To sum up his arguments, Mr. Choudhury, learned Public Prosecutor, State of
Arunachal Pradesh has argued that PW-8, Anwar Uddin is the victim and the eye-
witness in this case who had identified appellant Ahon Wangsa as the person who
had thrown acid on his face resulting into grievous injuries. The confessional statement
of Ahon Wangsa leaves no room for doubt that appellant Nipen Das had hired him to
kill the victim (PW-8) and it was in furtherance of a criminal conspiracy that appellant
Ahon Wangsa had thrown acid on the face of the victim resulting into severe burn
injuries on him while causing simple injuries to six other persons present in his shop.
Therefore, submits the learned Addl. P.P., the charges brought against both the
appellants stood fully established.
15. Mr. Azad Ahmed, learned counsel for the informant has supported the
arguments advanced by the learned Public Prosecutor, State of Arunachal Pradesh
Page No.# 11/38
and with the permission of the Court, has submitted that from the medical evidence
available on record as well as the type of injuries suffered by PW-8, PW-9, PW-2, PW-3
and PW-4 it is established beyond doubt that appellant Ahon Wangsa had thrown
acid upon the victim and the PW-8 is the eye-witness to the occurrence. Since Ahon
Wangsa was known to PW-8, the victim could easily identify him through his wearing
apparels and body language which was re-confirmed from the CCTV footage. The
confessional statement of the accused/appellant Ahon Wangsa had also been
recorded in due compliance with the requirement of section 164 Cr.P.C. Under the
circumstances, the charges brought against the accused persons have been fully
established by the prosecution side by adducing cogent evidence.
16. We have considered the submissions advanced by the learned counsel for
both the sides and have also gone through the materials available on record.
17. The informant in this case is Shri Sahnaj Hussain, who is the brother of the victim
Anwar Uddin. He was examined by the prosecution side as PW-1. In his deposition,
PW-1 has stated that on 03.02.2019, which was a Sunday, a cricket match of the India
team was going on. After watching the telecast of the cricket match, he went to the
mobile shop of his elder brother Anwar Uddin. At about 6:00 p.m., he went to the
market for purchasing some vegetables. When he was in the market, he had
received a phone call from his brother asking him to come to the mobile shop and
close the same. He then rushed to the shop of his brother and saw that lots of people
had gathered in front of the shop. On reaching the place, he had found some odour
which created a burning sensation in his nose. When he enquired from the people
Page No.# 12/38
present there, they told him that someone had thrown acid on Anwar Uddin. By that
time Anwar Uddin had been taken to the hospital. After the incident he had lodged
an ejahar before the Longding Police Station but since he did not know as to who
was the miscreant, he had not named any person in the F.I.R. He has stated that
accused Nipen Das @ Kala and Ahon Wangsa had been identified by the witnesses.
During his cross-examination this witness could not be shaken.
18. PW-2, Shri Rajibur Rehman was present in the mobile shop of the victim at the
time of the incident. He has stated that on 03.02.2019 when he was talking to the
shopkeeper, at that time, one person came and threw acid on the shopkeeper of
the mobile shop viz. Anwar Uddin. Some of the acid had fallen on his legs. While
throwing acid on Anwar Uddin, the person had his face covered by cloth. As such, he
could not identify the person.
19. PW-3, Shri Subhash @ Santosh Das was another person who was present at the
mobile shop when the incident occurred. He has deposed that while talking to Anwar
Uddin, two more customers came to the mobile shop. During that time someone
threw water like liquid substance on Anwar Uddin. There was smoke. He thought that
it was hot water. Some drops of the liquid substance had also fallen on his face and
hand. He could realize that it was acid that was thrown on Anwar Uddin. Thereafter,
he went to the hospital for treatment. PW-3 has stated that he could not see the
person who had thrown the acid.
20. PW-4, Shri Mona Das has stated that on the date of the incident, after closing
his shop, as he was going towards his residence, at that time one Subhash Das, who
Page No.# 13/38
was from the same colony, had asked him to wait and told that they would go
together. While he was standing, all of a sudden, he had felt that some water like
substance falling on his leg and he was feeling a burning sensation. Then he went to
the hospital.
21. PW-5, Shri Nanwang Ronrang has deposed that on the date of the incident
while he was standing in the mobile shop of Anwar Uddin, all of a sudden, an
unknown person came there and threw some liquid chemical substance on Anwar.
Some of the liquid fell on his hand and he could feel burning sensation. After the
incident, people started to run. He could not see the person who had thrown the
chemical.
22. PW-7, Shri Jawpha Wangsa was posted as Sub-Inspector of Police at the
Longding Police Station on 03.02.2019 when the F.I.R. was lodged by the PW-1. PW-7
has deposed that the F.I.R. was received on 03.02.2019 wherein, it was mentioned
that at around 17:43 hours, an unknown miscreant had come to P. K. Mobile shop
and threw acid from a jar on the face of elder brother of the informant viz., Md.
Anwar Uddin and ran away. Another six persons, who were standing near the place
of occurrence, had also sustained injuries due to acid burning. On receipt of the
ejahar, Longding P.S. Case No.07/2019 was registered under section 326(A) of the IPC
and the matter was endorsed to him for carrying out investigation. During
investigation, he had forwarded all the seven victims to the C.H.C., Longding for
medical treatment. He had submitted requisition for injury report of the victims and
had also received the same. According to the report submitted by the doctor, two
Page No.# 14/38
persons had sustained grievous acid burn injuries whereas, five others had sustained
simple injuries. He had visited the place of occurrence, prepared a rough sketch map
and recorded the statement of the victims under section 161 Cr.P.C PW-7 has also
stated that he had seized the clothes of the victim having sprinkles of acid and also
the jar which was used for throwing the acid. The seized materials were forwarded to
FSL, Kolkata for expert opinion, which was yet to be received.
23. PW-7 has further deposed that during investigation it was revealed that on
13.02.2019, at around 20:24 hours, victim Anwar Uddin had received a threatening
call from an unknown person with mobile number 7640860421 telling Anwar that he
would face dire consequences if he comes to Longding again. On suspicion, shop of
Nipen Das @ Kala was searched and one Itel mobile phone was recovered
therefrom. The IMEI number of the phone and the seized SIM card of a different
service provider was seized. The I.O. has further stated that he had obtained Call
Detail Records (CDR) of the phone with IMEI number from which the threatening call
was made to the victim. On examination of the CDR and IMEI number, it was found
that the mobile which was recovered from the possession of accused Nipen Das was
used for making threatening calls to the victim. PW-7 has further stated that he had
arrested accused Nipen @ Kala, who had admitted his guilt and had also disclosed
the name of co-accused Ahon and Puman, who had committed the offence. One
Manai Wangsa, who had accompanied the accused person on the fateful day was
forwarded to the Magistrate for recording his statement under section 164(5) of the
Cr.P.C. The I.O. has further stated that he had forwarded the accused persons for
recording their confessional statements and accused Ahon Wangsa had confessed
Page No.# 15/38
his guilt before the learned JMFC whereas, the other accused person had refused to
make any confession. On completion of investigation, he had submitted charge-
sheet against the accused person Nipen Das under sections 120B/326(A) of the IPC.
In so far as accused Ahon Wangsa and Puman Wangsa are concerned, charge-
sheet was submitted under sections 120B/326(A)/465 of the IPC.
24. During cross-examination of PW-7 by accused Nipen Das, this witness has
remained firm on his stand that the threatening phone call was made from Mobile
No.7640860421 having IMEDI No.911600301676396 but the person was unknown. PW-7
has also admitted that the jug used for throwing acid was not sent for examination of
fingerprint since the same had already been touched by many persons. The PW-7
had also replied that although Ahon and Manai Wangsa had stated that accused
Nipen Das was watching from his shop, there was no other independent witness who
had seen Nipen Das at the time of the occurrence. Nipen Das used to run a mobile
shop at Longding market.
25. In his cross-examination by accused Ahon Wangsa and Puman Wangsa, PW-7
has stated that as per the doctor's report, the victims had sustained acid burn injury.
Hence, he found that the substance which was thrown upon the victim was acid.
26. The victim in this case, Md. Anwar Uddin was examined as PW-8. In his
deposition he has stated that he is a businessman by profession and has a shop at
Longding Town wherefrom, he used to sell mobile phones. His mobile phone shop was
located towards the down side of the market and was running well. After a few days,
accused Nipen Das had opened another mobile shop at the Longding Main Market.
Page No.# 16/38
He used to get the mobiles (handset) and other materials for sale from Dimapur.
Nipen had also started purchasing mobiles from the same shop at Dimapur.
Sometimes, Nipen Das used to accompany him to Dimapur for purchasing mobiles
and they used to stay in the house of the shopkeeper at Dimapur and have food
together. Sometimes, he and Nipen used to purchase materials from Tinsukia. At
times, when Nipen Das went short of cash, he used to give assurance to the
shopkeeper on behalf of Nipen. He was having a good relationship with Nipen but
since his shop was situated on the downside of the market and the shop of Nipen was
in the market, his business was going down. After a few days, he had found one shop
in the market near the main road and shifted his mobile shop there. One day, Nipen
came to him and asked him not to open his mobile shop there and rather go for a
grocery shop or any other showroom. He did not agree to the proposal of Nipen.
After a few days, Nipen Das again came to his shop and made a proposal for
opening a partnership shop which he had declined. Thereafter, he started receiving
unknown phone calls and messages threatening him and also demanding money.
He had disclosed about the same to Nipen but he started to avoid him.
27. PW-8 has further stated that on the date of the incident, he was in his shop. At
that time, accused Puman came to his shop and asked for a "tamper glass" of
mobile. When he gave the "tamper glass" to Puman, he replied that he did not want
the tamper glass and went away. At that time, accused Ahon was standing nearby
with his face covered by a scarf. Ahon had thrown acid on him. He knew Ahon
Wangsa as he used to work in the shop of Nipen Das and sometimes he used to bring
customers to his shop. In return, he (PW-8) used to give him commission. At the time of
Page No.# 17/38
the incident, he could recognize Ahon Wangsa from his wearing apparels and body
language even though his face was covered. After the incident, he was taken to the
hospital at Longding and from there to Dibrugarh for treatment. There was CCTV
footage of the incident at the traffic point. After about 15/16 days of the incident, an
unknown person had threatened him over phone telling him that acid was thrown on
him with the intention to kill him. After receiving the call from the unknown caller, he
had informed the matter to the I.O. and gave him the phone number of the unknown
caller. Initially, he did not suspect Nipen Das for commissioning the offence. But after
a few days, the I.O. had informed him that Nipen Das is the person who had caused
the acid attack upon him.
28. During his cross-examination by accused Nipen Das, PW-8 has stated that he
could not identify the miscreant as acid had fallen on his face but later on, when
CCTV footage was shown to him, he could recognize accused Ahon to be the
miscreant. He had made a similar reply during cross-examination by accused Ahon
Wangsa and Puman Wangnow by saying that he could make out from the body
language of the person that it was Ahon Wangsa. Although he did not state before
the police that Ahon Wangsa was the miscreant, yet, after his treatment, the CCTV
footage was shown to him wherefrom, he could recognize that it was Ahon Wangsa
who had thrown acid upon him.
29. PW-9, Shri Aftar Uddin is the brother of Anwar Uddin (PW-8). He has deposed to
the effect that while his brother was shifting the mobile shop to the main market,
accused Nipen had asked him to tell his brother not to open the mobile shop in the
Page No.# 18/38
market. He had also proposed for doing joint business with his brother. According to
PW-9, Nipen had also threatened him by saying that otherwise there may be some
problem in future. PW-9 was present in the mobile shop of Anwar Uddin at the time of
the incident and he has also stated that all of a sudden, some water like substance
had fallen on him. Initially, he thought that somebody was making a prank by
throwing water upon them but very soon he started to feel burning sensation on the
places where the liquid substance had touched his body. There was smoke
everywhere and he was unable to see his brother after the incident. He had
sustained acid burn injury over both his legs including back.
30. PW-10, Dr. Tangseng Techi was the EMO posted at Longding CHC on
03.02.2019. He has deposed that on that day, at about 6:00 p.m., seven injured
persons came to the hospital for treatment. They were Anwar Uddin (PW-8), Aftar
Uddin (PW-9), Khila Ronrang, Nanwang Ronrang (PW-5), Santosh Das (PW-3), Mona
Das (PW-4) and Rajibur Rehman (PW-2). These persons had complained that they had
sustained burn injuries allegedly caused by acidic substance. On examination he
found that Anwar Uddin (PW-8) had sustained 3 rd degree burn on his face, upper arm
and neck. There was corneal damage of the patient. The type of injury was grievous.
He had referred Anwar Uddin for higher medical treatment. He had also found that
Aftar Uddin (PW-9) had suffered 3 rd degree burn on both lower extremities/ legs. The
type of injury was grievous. He had referred PW-9 for higher medical treatment. On
examination he found that the injuries suffered by Khila Ronrang, Nanwang Ronrang,
Santosh Das and Rajibur Rehman were simple burn injuries. During his cross-
Page No.# 19/38
examination, PW-10 has stated that he could not say the age of the injury. The
patients came themselves. The injuries were caused by dilute acid. PW-10 has,
however, clarified that the injuries sustained by the patient may also be caused by
throwing boiling water.
31. From a careful analysis of the evidence brought on record, we find that the
incident is not denied by both the appellants. From the evidence of PW-8, who is the
injured victim in this case, it is firmly established that the incident took place on
03.02.2019 at around 7:45 p.m. when the victim was in his shop named "P. K. Mobile"
which was situated in the Longding Market. At that time, PWs-2, 3, 4, 5 and 9 were
also present in the mobile shop. All these witnesses have stated that all of a sudden,
someone came and threw liquid substance from a jug on the face of PW-8 and
droplets of such liquid substance also fell on the parts of their body. PWs-2, 3, 4, 5 and
9 have also deposed in one voice that they had felt burning sensation on their skins
and there was odour and smoke all around. After the incident, the miscreant ran
away. The victims including the PW-8 had suffered burn injuries and were rushed to
the hospital.
32. The doctor (PW-10) has deposed that all the seven injured persons including
the PW-8 were brought to the hospital at around 6:00 p.m. on 03.02.2019 and he had
examined them. According to PW-10, seven injured persons had suffered burn injuries.
The doctor has also deposed that the victim Anwar Uddin (PW-8) had suffered 3 rd
degree burn on the face, upper arm and neck. There was corneal damage of this
patient. The type of injury was grievous and therefore, he had referred him for higher
Page No.# 20/38
medical treatment. The PW-10 has further deposed that Aftar Uddin (PW-9) had also
sustained 3rd degree burn on both lower extremities/legs and the type of injury was
grievous. As such, he had referred him for higher medical treatment. Insofar as the
remaining injured persons were concerned, according to PW-10, they had sustained
simple burn injuries. PW-10 had proved the injury reports submitted by him as Exts-14,
15, 16, 17, 18, 19 and 20 by identifying his signatures therein. During cross-examination,
the doctor has opined that the injury was caused by dilute acid.
33. From the above evidence led by the prosecution side, it is established that on
the date of the incident an unknown person had thrown liquid substance targeting
the PW-8 but other persons present in the shop had also suffered burn injuries due to
droplets of the liquid falling on them. The medical evidence available on record,
read in the light of the testimonies of the injured victims and the photographs of the
victim available on record, leaves no room for doubt that such type of injuries could
not have been caused by boiling water but by acid burn. Such acid burn had
evidently caused permanent deformity on the limbs of the victim and has also
disfigured his face. Section 326(A) is applicable not only in cases where injury is
caused by throwing acid but also in case of causing injury by using any other means.
Therefore, although there is no FSL report available in this case, yet, having regard to
the materials on record, we are inclined to agree with the findings of the learned trial
court that the victim had suffered acid attack on the day of the incident.
34. Coming to the next question as to whether the appellants have been properly
identified and to that extent, whether the charges brought against them could be
Page No.# 21/38
proved by the prosecution beyond reasonable doubt, we may note herein that in his
testimony, the PW-8 has claimed that he could identify appellant Ahon Wangsa from
his wearing apparels and body language even though his face was covered. This
testimony of PW-8 could not be shaken during his cross-examination by accused
Ahon Wangsa. PW-8 has also stated that just before the incident, accused Ahon
Wangsa once came by covering his face and from the body language, he could
make out that it was Ahon Wangsa. Subsequently, video footage of the occurrence,
captured in a traffic point, was shown to him wherefrom, he could ascertain that it
was none other than accused Ahon Wangsa who had thrown acid on that day. His
aforesaid testimony has not been challenged by the defence side during cross-
examination of this witness. What is to be noted herein is that PW-8 is the injured victim
and an eye-witness to the occurrence and he has stated that Ahon Wangsa used to
come to his shop frequently with customers and he (PW-8) used to pay commission to
him. As such, with a little observation and on due verification it would not at all be
difficult for the PW-8 to identify Ahon Wangsa even if his face was covered.
35. Mr. Purkayastha has argued that the electronic evidence in the form of CCTV
footage would be inadmissible in the absence of a certificate under section 65-B of
the Evidence Act. However, what needs to be noted herein is that the prosecution
has not produced the CCTV footage before the court. The PW-8 has merely stated
that he could verify and ascertain the identity of Ahon Wangsa from the CCTV
footage. The said fact has come out in his oral evidence. As such, there is no question
of applicability of section 65-B of the Evidence Act in this case. In view of the above,
the decision in the case of Anvar P.V. (supra) would not have any relevance in this
Page No.# 22/38
case.
36. We have also noticed that there is no evidence to suggest any previous
enmity between the victim PW-8 and Ahon Wangsa and therefore, we do not see
any reason as to why the PW-8 would falsely implicate Ahon Wangsa in the matter.
37. Having held as above, we now turn to the confessional statement of Ahon
Wangsa which was recorded by the Magistrate (CW-1) wherein he had admitted his
guilt.
38. The statement of Ahon Wangsa was recorded by the learned Judicial
Magistrate First Class, Longding on 08.03.2019 when he was produced from judicial
custody. In his statement recorded under section 164 Cr.P.C., Ahon Wangsa has
stated that on 03.02.2019, at about 3-4 p.m., Nipen Das @ Kala had asked him to kill
Anwar (victim) by a "dao" by saying that "Anwar ko Kaatkar khatam kardo". When
he asked him as to why, Kala had told him that whenever he went to Tinsukia for
taking stuff for his mobile shop, Anwar used to block him and take his stuff such as
mobile and its accessories. He then replied by saying that he would not be able to kill
Anwar with a dao. Then Kala gave him an easy way out to kill Anwar and he went to
his house and returned with one jug full of some liquid (acid) and gave it to him. Kala
asked him to throw the liquid on the face of Anwar and run from the scene and
thereafter, take Rs.10,000/- (Ten Thousand) from him in the next morning. Accordingly,
he took the jug of acid from Kala and threw it on the face of Anwar and ran away
from the scene. Accused/appellant Ahon Wangsa had further stated that after one
day, Kala had called him up and asked him to come to his house. When he reached
Page No.# 23/38
his house, Kala gave him a mobile phone with a SIM card and asked him to call
Anwar and tell him that acid was thrown on his face because Anwar had raped his
(Ahon's) girlfriend and then Kala had also asked him to call up the SP (Superintendent
of Police), Longding and tell him that he had thrown acid on the face of Anwar
because Anwar had raped his girlfriend. Thereafter, Kala had told him to destroy the
SIM card by chewing it and accordingly, after calling up Anwar and SP, Longding, he
had destroyed the SIM by chewing it and thereafter, returned the mobile phone to
Kala at his shop. After 4-5 days of the incident, he and Puman went to the house of
Nipen and asked for the money but he (Nipen) gave one phone REDMI MI 6A mobile
phone valued at Rs.6000/- only and refused to give them any money. They took the
mobile phone and went back home. On the next day, he had gone to Pongchau
and Puman left for Khonsa. From there he was arrested and brought to Longding.
39. The Judicial Magistrate First Class, Smti. Epi Kapu, who had recorded the
confessional statement of accused Ahon Wangsa under section 164 Cr.P.C. was
examined as Court Witness (CW-1). The CW-1 has deposed that on the prayer of the
I.O. she had recorded the confessional statement of accused Ahon Wangsa on
08.03.2019 and had also recorded the statement of witness Manai Wangsa on
20.03.2019. Accused Ahon Wangsa was produced before her from judicial custody.
Before recording his statement, she had made the accused person understand that
she was a Magistrate and that he was not bound to make a confession. She had also
made him understand that the confessional statement, if recorded, would be used as
a piece of evidence against him during trial. Accused Ahon Wangsa had voluntarily
confessed before her and she had recorded his confessional statement. CW-1 has
Page No.# 24/38
further stated that Ahon Wangsa had confessed before her that on 03.02.2019 at
about 03-04 p.m., accused Nipen Das @ Kala had asked him to kill one
Anwar Uddin. Nipen Das had asked him to cut Anwar with a dao and kill him. On
being enquired about the reason for doing so, Nipen Das told Ahon Wangsa that he
wanted to kill Anwar Uddin as the latter used to take the mobile accessories which
was supplied by the dealers from Tinsukia. Both Nipen Das and Anwar Uddin used to
run mobile shops and hence, there was business rivalry between them. When Ahon
Wangsa expressed his inability to kill Anwar by cutting him, then NIpen Das @ Kala
told Ahon that he would give him an easy way to kill Anwar Uddin. Accordingly,
Nipen Das gave him one jug filled with liquid substance and asked Ahon Wangsa to
throw the same on the face of Anwar Uddin and run away. Nipen Das also told him
that he would give Rs.10,000/- to Ahon Wangsa on the next day for doing the same.
Accordingly, Ahon Wangsa had thrown the liquid substance on the face of Anwar
Uddin and ran away. On the next day, accused Nipen Das @ Kala had given him one
mobile phone with SIM card and asked him to call Anwar Uddin and SP, Longding
and tell them that Anwar Uddin was having an illicit relationship with his girlfriend and
hence, acid was thrown on him. As directed by Nipen Das, accused Ahon Wangsa
had called Anwar Uddin and SP, Longding. Thereafter, he had destroyed the SIM
card and returned the mobile phone to Nipen Das. The mobile phone used for calling
Anwar Uddin and SP, Longding was later recovered from Nipen Das by the police.
After 4-5 days of the incident, accused Ahon Wangsa and Puman Wangsa went to
the house of Nipen Das @ Kala asking for Rs.10,000/- but Nipen Das gave him one
mobile phone valued at Rs.6000/- with a SIM card but refused to pay any further
Page No.# 25/38
amount. CW-1 has also deposed that after recording his confessional statement
accused Ahon Wangsa was sent to judicial custody. CW-1 has proved Ext-10, the
confessional statement of Ahon Wangsa recorded by her. CW-1 has also identified
the thumb impression of Ahon Wangsa in Ext-10 taken in her presence.
40. CW-1 has further deposed that on 20.03.2019, she had recorded the statement
of witness Manai Wangsa (PW-6) under section 164(5) of the Cr.P.C. Manai Wangsa is
an eye-witness to the incident. He had stated before her that he (Manai Wangsa)
used to reside in the rented house of Puman. On the date of the incident, accused
Ahon Wangsa had called him over phone but he did not speak to him. Thereafter,
Ahon Wangsa came to their house and asked Manai and Puman to accompany him
to the market. Accordingly, three of them went to the market and entered the shop
of Nipen Das. At that place Ahon and Nipen had discussed something in a secretive
manner. Manai has stated that he had heard Nipen Das telling Ahon Wangsa "Jese
bola hei wese karo" (do as I have said). Thereafter, Ahon had asked Manai and
Puman to wait near the shop of Anwar Uddin. When Manai and Puman were waiting
near the shop of Anwar Uddin, he (Manai) had seen Ahon Wangsa going to that
place holding a jug in his hand and covering his face. Manai has stated that he had
identified Ahon from his cut mark on the cheek and his wearing apparels as well as
physical appearance. Ahon went to the shop of Anwar Uddin and threw the liquid
substance in the jug on the face of Anwar Uddin and ran away. At that night, Ahon
came to the house of Manai and stayed there but Manai did not talk to him as he
had seen the pain and suffering of Anwar Uddin and others due to the acid thrown
on them by Ahon. On 05.03.2019, police came to the residence of Manai and
Page No.# 26/38
enquired about Ahon. Then he disclosed before the police that Ahon Wangsa had
left for Pongchau. CW-1 has exhibited the statement of Manai Wangsa recorded by
her under section 164 Cr.P.C. as Ext-9 by identifying her signature therein.
41. During her cross-examination by accused Nipen Das, CW-1 has replied that
she had made a note regarding statutory compliance while recording the
confessional statement of the accused and before recording his statement, she had
repeatedly asked the accused as to whether he was confessing voluntarily. On being
satisfied that the confession was being made voluntarily, she had proceeded to
record his confessional statement. CW-1 has further stated that accused Ahon
Wangsa had been arrested on 06.03.2019 and on the same day, he was produced
before her. She had remanded Ahon Wangsa to judicial custody. On 08.03.2019, a
prayer for recording confessional statement of the accused was received by her and
on the same day she had recorded the confessional statement of accused Ahon
Wangsa. This witness has further stated that she had recorded the confessional
statement of Ahon Wangsa inside her chamber, in presence of a Stenographer.
Before recording his statement, accused Ahon Wangsa was given about two hours
time for reflection. There was no police person present at that place while recording
the confessional statement of accused and during the reflection time, accused Ahon
Wangsa was kept alone inside a room in the court campus.
42. During her cross-examination by accused Ahon Wangsa and Puman
Wangnow, CW-1 has stated that after receiving the prayer of the I.O. for recording
the confessional statement of the accused persons, she asked both the accused as
Page No.# 27/38
to whether they wanted to make a confession. Accused Nipen Das @ Kala had
initially confessed before her but when she explained to him as regards the
consequences that may ensue upon the accused due to recording of their
confessional statement, Nipen Das had refused to record his confessional statement.
That is why, the confession of Nipen Das was not recorded. CW-1 has, however,
stated that accused Ahon Wangsa had voluntarily confessed even after explaining
to him the consequences of recording his confessional statement.
43. By placing reliance on the decisions in Sarwan Singh Rattan Singh (supra),
Dhananjay Reddy (supra) and Babubhai Udesinh Parmar (supra), the learned counsel
for the appellant in Criminal Appeal No.97/2021 has argued that the confessional
statement of accused Ahon Wangsa was not recorded after adhering to the
procedure prescribed under section 164(5) of the Cr.P.C. inasmuch as the accused
was not informed about the fact that his confession might be used against him as
evidence. However, from a careful scrutiny of Ext-10 i.e. the confessional statement of
Ahon Wangsa, we find that the following endorsement was made by the learned
JMFC at the bottom of Ext-10 :-
"I have examined Shri Ahon Wangsa that he is not bound to make a
confession and that if he does so any confession, it may be used as evidence
against him and I believe that this confession was voluntarily made. It was
taken in my presence and hearing and was read over to the person making it
and admitted by him to be correct and it contains full and true account of the
statement made by him."
44. By laying emphasis on the use of the expression "examined" in the above
endorsement of the learned JMFC, Mr. Purkayastha has argued that there was no
Page No.# 28/38
requirement for examining the accused but the learned Magistrate ought to have
explained to him that he was not bound to make confession which has not been
done in the present case. After careful reading of the confessional statement as well
as the testimony of CW-1 we are unable to agree with such submission of Mr.
Purkayastha for the following reasons. The use of the expression "examined" appears
to be a grammatical/ typographical error which stands clarified from the remaining
part of the endorsement which makes it clear that the accused was explained about
the consequences of his confession. That apart, it also appears from the testimony of
CW-1 that accused Nipen Das had also initially confessed his guilt before the learned
JMFC but when she had explained to him the consequences of recording the
confessional statement then, Nipen Das refused to record his confession. However,
accused Ahon Wangsa voluntarily confessed even after explaining to him the
consequences of recording such confessional statement. The above testimony of
CW-1 clarifies the matter and lends ample credence to our view that the expression
"examined" ought to be read as "explained" in the context of the confessional
statement (Ext-10). If that be so, it cannot be said that the accused persons were not
explained about the consequences of recording their confessional statement.
45. From the confessional statement of Ahon Wangsa (Ext-10) we also find that he
was produced from the judicial custody and was also sent back to judicial custody
after recording his confessional statement and there was no police personnel present
when the reflection time was given to him by the learned Magistrate. The accused
was also asked as to why he wanted to confess and he replied that he wanted to tell
the truth. The accused has also clarified that he was aware that he was not bound to
Page No.# 29/38
confess.
46. Insofar as the argument advanced by the appellant's counsel that there is no
indication in the confessional statement that the accused was informed that he
would not be sent back to police custody even if he refuses to confess and to that
extent, Ext-10 suffers from infirmity rendering the same inadmissible in the eye of law,
we are also unable to agree with such submission of the learned counsel for the
appellant on account of the fact that the accused was evidently produced from
judicial custody and he was also sent back to judicial custody after recording his
confessional statement. It has come out from the evidence on record that there was
no police personnel present in the office of the learned Judicial Magistrate nor was
there any application for sending the accused to police custody. Under the
circumstances, the mere fact that the learned Magistrate has not made an
endorsement in Ext-10 to the effect that the accused was informed that he would not
be sent to police custody even if he refuses to confess, in our opinion, would not have
any material bearing in the facts and circumstances of the case. The learned counsel
for the appellant has also not been able to show any prejudice being caused to the
accused on such count.
47. In the case of Dhananjay Reddy (supra) the Hon'ble Supreme Court has
observed that recording of confession under section 164 of the Cr.P.C. was a very
solemn act which the Magistrate is obliged to perform by taking due care to ensure
that al requirements of section 164 are fully satisfied and that the Magistrate should
not adopt a casual approach. In Dhananjay Reddy (supra) it has been held that it
Page No.# 30/38
would be necessary in every case to put the questions prescribed by the High Court
circular which is intended to be put under sub-section (3) of Section 164 Cr.P.C. and
no element of casualness should be allowed to creep in. The Magistrate should be
fully satisfied that the confessional statement of the accused was in fact and in
substance voluntary. A similar view has been expressed in the case of Babubhai
Udesinh Parmar (supra) wherein it has been held that the provisions of Section 164
Cr.P.C. are meant to provide safeguards for an accused and therefore, such
provisions were required to be strictly complied with.
48. The learned counsel for the appellant has argued that it is a case of retracted
confession. However, from a minute reading of the statement of Ahon Wangsa
recorded under section 313 of the Cr.P.C. we find that he did not deny that his
confession was recorded by the Magistrate but had merely feigned ignorance. The
mere fact that the accused did not specifically admit of having recorded his
confession, cannot, in our view, be treated as retraction of the confession. Moreover,
Ext-10, which is the confessional statement of the accused was also admitted in
evidence without any objection from the defence counsel.
49. From a careful reading of the confessional statement of Ahon Wangsa, proved
as Ext-10, as well as the testimony of CW-1 i.e. the Judicial Magistrate First Class, who
had recorded the same, we are of the view that the learned Magistrate had not only
complied with the requirements of Section 164(3) Cr.P.C. before recording the
confessional statement of the accused person but she had also recorded the same
after providing sufficient reflection time to the accused as may be justified in the facts
Page No.# 31/38
and circumstances of the case and also after reaching proper satisfaction about the
fact that the accused was willing to make the confession voluntarily. Moreover, in her
deposition, the CW-1 has also reproduced in her own voice, the nature of confession
made by Ahon Wangsa before her. The evidence of CW-1 has remained un-assailed
on such count and therefore, lends further assurance to the voluntariness and
truthfulness of his confession. The confession of accused Ahon Wangsa, when read in
the light of the other evidence available on record, goes to show that his
confessional statement is truthful and therefore, have been rightly relied upon by the
learned trial court.
50. From the confessional statement of Ahon Wangsa, we are left with no manner
of doubt that he was the one who had thrown acid on the date of the incident and
he did so under the instruction of Nipen Das @ Kala. The motive behind the
occurrence, which is the business rivalry between Nipen and Anwar has also clearly
come out from the evidence of PW-9 read with the confessional statement of Ahon
Wangsa. It has also come out from the materials on record that accused/appellant
Nipen Das had instructed Ahon Wangsa to eliminate the victim (PW-8). It has also
come out from the materials available on record that the involvement of Nipen Das
came to light during the course of investigation and it was PW-7 (I.O.) who had
informed the victim that it was Nipen Das who had caused the attack upon him.
From the evidence of PW-8 it also appears that he had a good relationship with
Nipen Das and there was no reason for the victim to falsely implicate Nipen Das.
Rather it was Nipen Das who was harbouring malice against the victim and that was
clearly on account of some business rivalry.
Page No.# 32/38
51. In the above context, it would be pertinent to mention herein that the
statement of PW-6, Manai Wangsa, who was known to the accused Ahon Wangsa
was also recorded by the learned JMFC under section 164 Cr.P.C. and the said
statement was exhibited and proved by the CW-1 as Ext-9. A reading of Ext-9 goes to
show that PW-6 had stated in his statement recorded before the Magistrate that on
the date of the incident, he and Puman Wangsa had accompanied Ahon Wangsa
to the market. On reaching the market, Ahon Wangsa took them to Nipen Das's
mobile shop and on reaching there, Nipen Das and Ahon Wangsa went to the
backside of the mobile shop and both of them started speaking secretly. There, he
had heard Nipen Das saying "joh hum bolah hai waisa karo" (whatever I had asked,
do it accordingly). After that, Ahon Wangsa had asked him and Puman to wait for
him near Anwar's shop and then they went there. He then went for urinating towards
backside of a book stall and when he returned back, he found Puman smokng near
Anwar's shop. When he went near Puman, he saw one person coming from the
downside area towards Anwar's shop wearing "dust mask" with both his hands at the
backside of the body carrying one jug. When he saw the person from a closer
distance, he could recognize that the masked person was none other than Ahon
Wangsa. Ahon Wangsa came to Anwar's shop and threw the jug of acid on his face.
Thereafter, Ahon Wangsa ran away from the scene.
52. However, PW-6 Manai Wangsa did not entirely support his above statement
while deposing before the Court. In his deposition, PW-6 has merely stated that on the
date of the incident, Puman was with him. Ahon went to the residence of his brother.
He had asked them to meet at P. K. Mobile shop. Accordingly, he along with Puman
Page No.# 33/38
went to the mobile shop and was waiting for Ahon. At that time, he had heard the
sound of shouting coming from the mobile shop. A boy had thrown acid and ran
away from the place of occurrence. He could not identify the person who had
thrown acid. PW-6 has further stated that on that night he stayed with Ahon and
Puman. After two days, they went to their village. He was at Longding. Police arrested
him and on the next day police had arrested Ahon as they were together.
53. The learned trial court had treated PW-6 as a hostile witness since he did not
support the prosecution story by corroborating his earlier statement (Ext-9) recorded
by the Magistrate. However, there is no indication to the effect that the PW-6 was
declared as a hostile witness. In that view of the matter, we are unable to agree with
such observation of the learned trial court. Merely because there is a difference
between the statement of a prosecution witness in his deposition and previous
statement recorded under section 164 Cr.P.C., it cannot be readily presumed that
the witness had turned hostile unless a request to that effect is made by the
prosecution side during trial and the same is accepted by the trial court for reasons to
be recorded. However, what is noteworthy is the fact that even if there is some
variance in the testimony of PW-6, even then, save and except identifying Ahon
Wangsa, as the miscreant who had thrown acid on PW-8 on the date of the incident,
the evidence of PW-6 is substantially in tune with the sequence of events immediately
before and after the occurrence as per the version in Ext-9. In other words, the
statement of PW-6 recorded by the Magistrate substantially corroborate his version
given before the court except for naming Ahon Wangsa as the culprit.
Page No.# 34/38
54. From the evidence brought on record by the prosecution as well as the
confessional statement of the accused Ahon Wangsa (Ext-10) it is firmly established
that on the date of the incident it was none other than Ahon Wangsa who had
thrown acid on PW-8.
55. The other question that would arise for decision in this case is whether the
materials on record are sufficient to implicate Nipen Das @ Kala and prove the
charge of criminal conspiracy brought against them. In the case of Haricharan Kurmi
(supra) relied upon by Mr. B. M. Choudhury, learned counsel for the appellant in
Criminal Appeal No.194/2020, the Hon'ble Supreme Court had discussed about the
probative value of confession of a co-accused in the light of Section 30 of the
Evidence Act and held that while dealing with a case against an accused person,
the court cannot start with the confession of a co-accused, it must begin with other
evidence adduced by the prosecution and after it has formed its opinion with regard
to the quality and effect of the said evidence, then it would be permissible to turn to
the confession in order to receive assurance to the conclusion of guilt which the
judicial mind is about to reach on the said other evidence. In that case, the charge
brought against the accused persons was under Section 396 of the IPC for having
committed dacoity and murder. The learned Sessions Judge, Muzaffarpur had found
all the six accused persons guilty of the offence charged and accordingly, convicted
them and sentenced each of them to suffer imprisonment for life. The High Court of
Judicature at Patna had confirmed the conviction of five out of the six
appellants/accused and acquitted one by giving benefit of doubt. What is to be
noted herein that in the case of Haricharan Kurmi (supra) there was no charge
Page No.# 35/38
framed under section 120-B of the IPC.
56. We are also of the view that the evidence of PW-7 has deposed about the
manner in which threatening call was traced out to be made from the mobile phone
bearing No.7640860421 having IMEI No.911600301676396, which was seized by him
from the shop of Nipen Das. Mr. Choudhury has argued that in the seizure memo of
the mobile phone the IMEI has not been mentioned. Moreover, when the mobile
phone was seized, at that time, the appellant Nipen Das was already in jail. Therefore,
the seizure of the mobile phone would not have any material bearing in this case.
The above argument of the appellant's counsel cannot be accepted on
account of the fact that the mobile phone was admittedly and evidently seized by
the I.O. from the mobile shop "Das Mobile Center" owned by the appellant Nipen
Das on 04.03.2019 at around 7:20 hours. There is cogent evidence on record to show
that the threatening call to the victim was made from the said mobile phone. The I.O.
only said that the person making the call could not be identified. It is possible that at
the time of seizure of the mobile phone, the IMEI number was not readily available.
That, in all probability was the reason, why the IMEI number of the mobile phone is not
mentioned in the seizure list. The I.O. (PW-7) has, however, deposed that the IMEI
number of the mobile phone was subsequently traced out and he has also produced
the same before the court.
57. Section 10 of the Indian Evidence Act, 1872 deals with things said or done by a
conspirator in reference to common design. Section 10 is reproduced herein below :-
"Section 10.--Things said or done by conspirator in reference to common design.
Page No.# 36/38
Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said,
done or written by any one of such persons in reference to their common intention,
after the time when such intention was first entertained by any one of them, is a
relevant fact as against each of the persons believed to be so conspiring, as well for
the purpose of proving the existence of the conspiracy as for the purpose of showing
that any such person was a party to it."
58. We have already noted that from the evidence brought on record, the
business rivalry between Nipen Das and the victim PW-8 has been well established.
The evidence of PW-9 further goes to show that Nipen Das had not only tried to
prevent the victim to open/shift his mobile shop to a location near his (Nipen's) shop
but the latter had even threatened the victim of dire consequences if he had failed
to oblige. It has also come out from the evidence of the I.O. (PW-7) that threatening
phone calls had been made to the victim from a mobile phone which was later
seized from the shop of the appellant Nipen Das. The evidence on record also shows
that Ahon Wangsa used to work for Nipen. The above circumstances, proved by the
prosecution, furnishes important links in the chain of circumstances so as to prove the
guilt of the appellant/accused Nipen Das.
59. The confessional statement of accused Ahon Wangsa clearly establishes the
fact that appellant Nipen Das had conspired with him to kill the victim Anwar Uddin
(PW-8) and in furtherance of a common design to commit an offence punishable
under the law, Nipen Das had handed over the jug full of acid to Ahon Wangsa and
advised him to throw it on the face of the victim. Accordingly, Ahon Wangsa had
executed the plan.
Page No.# 37/38
60. Law is well settled that in case of a criminal conspiracy, direct evidence is very
difficult to find because such conspiracy is always hatched in secrecy. Save and
except confession of a co-accused, it may not be possible to find evidence of
criminal conspiracy. Under such circumstances, the confessional statement of a co-
conspirator cannot be brushed aside if the same fits into the prosecution story
established by other evidence brought on record.
61. We have already held that the confessional statement of Ahon Wangsa (Ext-
10) was recorded after complying with the procedural requirements laid down by
Section 164 Cr.P.C and the same in our view, is also truthful and voluntary in nature.
During his examination under Section 313 Cr.P.C., Ahon Wangsa has not denied of
having recorded his confessional statement by the Magistrate but has merely feigned
ignorance about it by stating that "I do not know about the same". The above
response of the accused person cannot be treated as retraction of his confession. If
that be so, we are of the unhesitant opinion that the confessional statement of
accused Ahon Wangsa is not only admissible but the same has also been duly
proved by the prosecution side. Since Ahon Wangsa and Nipen Das were jointly tried
for the same offences, hence, in view of the provision of Section 30 of the Indian
Evidence Act, 1872, the confessional statement of Ahon Wangsa could have been
and has been rightly relied upon by the learned trial court to convict appellant Nipen
Das.
62. In the case of State through Superintendent of Police, CBI/SIT vs. Nalini and
others reported in (1999) 5 SCC 253 the Hon'ble Supreme Court has laid down the
Page No.# 38/38
conditions which must be fulfilled for attracting Section 30 of the Evidence Act. The
observations made in paragraph 685 are relevant and therefore, are being
reproduced herein below for ready reference :-
"685. A plain reading of Section 30 of the Evidence Act discloses that
when the following conditions exist, namely, (i) more persons than one
are being tried jointly,; (ii) the joint trial of the persons is/or the same
offence', (iii) a confession is made by one of such persons (who are
being tried jointly for the same offence); (iv) such a confession affects
the makers as well as such persons (who are being tried jointly for the
same offence); and (v) such a confession is proved in court, the court
may take into consideration such confession against the maker thereof
as well as against such persons (who are being jointly tried for the same
offence)".
63. After considering the materials on record as well as the confessional statement
of Ahon Wangsa, we are of the view that the same squarely meets the requirement
of the law laid down in the case of Nalini and others (supra).
64. For the reasons discussed herein above, both these appeals are held to be
devoid of any merit and the same are accordingly dismissed.
Send back the LCR.
JUDGE JUDGE
T U Choudhury/Sr.PS
Comparing Assistant
