Gauhati High Court
Page No.# 1/19 vs State Of Assam And Anr on 1 May, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/19
GAHC010173782022
2025:GAU-AS:5373-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./152/2023
ARUN KURMI
Address - S/O BONROSI KURMI , VILLAGE NOMPAM BOROTIA, PS GELEKI,
MOUZA ATIKAL, DIST SIVASAGAR, ASSAM
VERSUS
STATE OF ASSAM AND ANR.
REPRESENTED BY PP, ASSAM
2:SRI ANANDA BORTHAKUR
S/O CHANDRA KT. BORTHAKUR
RESIDENT OF KACHARIHAT
BONGAON
DIST.- GOLAGHAT
ASSAM PIN-785621
3:PURNA KANTA NATH
S/O - LT. RANJAN NATH
R/O KALIABOR KACHARI GHAT
PS - GOLAGHAT
DIST. - GOLAGHA
Advocate for the Petitioner : MR J I BARBHUIYA, MR. S J SARMAH,MR. P BOIRAGI
Advocate for the Respondent : PP, ASSAM,
Before
Hon'ble mr. justice Sanjay Kumar Medhi
Page No.# 2/19
Hon'ble Mr. Justice Kakheto Sema
Advocate for the Appellant : Shri J.I. Borbhuiya
Advocate for the Respondents : Ms. B. Bhuyan, APP, Assam
Date of hearing : 12.03.2025
Date of Judgment : 01.05.2025
Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred under Section 374 of the Code
of Criminal Procedure, 1973 [corresponding to Section 415 BNSS] against
the judgment and order dated 08.11.2023 passed by the learned Sessions
Judge, Jorhat in Sessions Case No. 38/2003 (GR Case No.559/1999) under
Section 302 of the Indian Penal Code [corresponding to Section 103 BNS],
thereby sentencing the appellant to undergo SI for life and to pay a fine of
Rs.5,000/- (Rupees Five Thousand) in default further RI for two years and
under Section 27(2) of Arms Act sentencing the appellant to undergo RI for
7(seven) years and to pay a fine of Rs.5,000/- (Rupees Five Thousand) in
default further RI for two years more.
2. There is a chequerd history in this case and in fact the trial was held
afresh after a remand order passed by a Division Bench of this Court dated
07.08.2007. However, it is necessary to give a background of the case in
brief.
3. The criminal law was set into motion by lodging of an Ejahar by PW3
on 20.08.1999. It was stated that at about 11:00 AM an incident of firing
had taken place in the premises of the Urbashi Cinema Hall at Golaghat in
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which, a young boy of 18 years was killed. The informant however had
stated that the gunshot was by an unknown person. Accordingly,
investigation was made and on 04.04.2003 the charges were framed
against the appellant. On denial of the charge, the trial had begun in which
the prosecution had examined 10 nos. of witnesses.
4. Though the case was of 1999, the final outcome was not coming
and this fact came to the notice of this Court in a proceeding namely,
WP(C)/1175/2006 and accordingly instructions were sought for as the
reason for the delay in pendency of this case. Immediately after such
intervention by this Court, within a couple of days, an order was passed on
05.04.2006 by the learned Trial Court acquitting the appellant. The said
order of acquittal was however taken up for examination by this Court in
Criminal Revision (Suo Moto) Case No.74/2007. By emphasizing that the
order was not passed in accordance with law, this Court had noticed that by
an order of 2 pages, the entire criminal trial was disposed of and except
one, none of the witnesses were discussed. This Court had accordingly
passed an order dated 07.08.2007 setting aside the earlier judgment dated
05.04.2006 of acquittal and had remanded the matter for a fresh trial. For
ready reference, the relevant observation made by this Court is extracted
hereinbelow-
"( 23 ) In view of our conclusion that there was gross miscarriage of
justice in this case, we deem it appropriate to set aside the
judgment under revision and remit the matter back to the Sessions
Court at Golaghat for a fresh trial of the accused. The Sessions
Court is further directed to frame appropriate charges in the light of
this order and on the basis of the material, which is already in
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existence and on record of the court."
5. Pursuant to such remand, fresh charges were framed against the
appellant on 12.08.2008 in which the number of the pistol involved was
correctly written and the trial had started de novo in which the prosecution
had adduced evidence through 11 nos. of witnesses to bring home the
charges.
6. PW1 is a classmate of the deceased who had accompanied him to
the cinema hall to watch the morning show. In his cross-examination,
however, he had stated that he did not see who had shot his friend.
7. PW2 is a pan-shop owner, who had his shop in the cinema hall
campus. PW 2 was, however, declared hostile. Nonetheless, PW 2, in his
cross-examination by the prosecution, had admitted to being a seizure
witness regarding the seizure of an empty cartridge from the place of
occurrence.
8. PW 3 is the informant, who was in the Booking Counter of the
cinema hall. He did not know how the incident had occurred and only heard
a sound of firing. He is also a witness to the seizure of an empty cartridge
from the place of occurrence and the seizure list was proved by him.
9. PW 4 is the Armourer of the Police Reserve. He had deposed that
initially a Browning Pistol bearing No.16120790 with empty cartridge was
seized. There was a further seizure of three nos. of Browning Pistols
bearing Nos. 16237182, 16236901 and 16236793 and 15 numbers of live
cartridges in which '2Z OK 97' were inscribed on the rims. In his cross-
examination, PW 4 had, however, deposed that the pistol and the live
cartridges and magazine which were issued to the appellant were returned
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unused.
10. PW 5 is the Reserve Officer who had deposed that on 22.05.1999
the Sub Inspector had seized a 9 mm Browning Pistol bearing No.
16120790 and he is a signatory to the seizure list. Subsequently, on
05.09.1999 the second seizure was made of three pistols and 15 rounds of
9 mm live cartridges which corroborates the evidence of PW 4, the
Armourer of the Police Reserve.
11. PW 6 is another Police Constable who had accompanied the
appellant to the cinema hall on the fateful morning. PW 6 was, however,
declared hostile and accordingly was cross-examined by the prosecution. In
his cross-examination, however, he had deposed of seeing a pistol in the
hands of the appellant in the cinema hall and could also hear a shot being
fired. He had also deposed that while coming back he had put a question to
the appellant regarding the shortage of one round of cartridge to which the
appellant had replied that he will manage. It is pertinent to note that PW6
had also given a statement under Section 164 of the CrPC [corresponding
to Section 183 BNSS] which was also proved. In the said statement, he had
stated before the learned Magistrate that the appellant was carrying a pistol
which fact was not known to him when they had started for the cinema
from the barrack. While coming back, when a question was put to the
appellant regarding the shortage of the cartridge, the appellant had said
that he would arrange a replacement of the fired bullet. He had also asked
why he had fired to which, the appellant did not reply.
12. PW7 is the pan shop owner who is a seizure witness. He, however,
had deposed that he did not know what he had signed. Similarly, PW8 is a
student, who was also in the cinema hall, however his deposition would not
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throw much light in the instant case.
13. PW9 is the Doctor, who had conducted the autopsy on the deceased.
In his deposition, regarding the opinion, the following has been stated:
"In my opinion, the injuries were ante mortem in nature and caused
by gun shot and the death of the deceased occurred due to shock
and hemorrhage resulting from injuries sustained."
The PM report was proved as Exhibit 9 in which however, it was
stated that no bullet was found inside the body.
14. PW 10 is the Senior Scientific Officer whose opinion was sought for
in respect of the use of the pistol and the bullets. It may be mentioned that
two opinions were taken as two seizures were made. The opinions were
given on two dates. The reports being relevant to the adjudication of the
present appeal are extracted hereinbelow-
"Report No. FSL.761/99/7274/FB-4058 dated 26.8.99.
Memo No. GJ2176/99 Dated 28.8.99
DESCRIPTION OF ARTICLES
1. 1 (one) fired 9 mm pistol cartridge (O.K.) which is marked as
Exhibit A.
2. 1 (one) 9 mm pistol (Browning) Sl. No. 16120790 with
magazine which is marked as Exhibit B.
RESULT OF EXAMINATION
i. Exhibit B is a firearm which is serviceable.
ii. Test firings were done through Exhibit B and the firing
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pin impressions on the test fired cartridge cases were
compared with that on Exhibit A under a comparison
microscope and were found to be dissimilar. Hence it may be
concluded that Exhibit A was not fired by Exhibit B."
"Report No. FSL.761/99/7274/FB-4058 dated 24.9.99.
Memo No. ...
DESCRIPTION OF ARTICLES
1. One 9 mm Browning pistol No.16237182 with one empty
magazine which is marked as Exhibit A2.
2. One 9 mm Browning pistol No.16236901 with one empty
magazine which is marked as Exhibit B2.
3. One 9 mm Browning pistol No.16236793 with one empty
magazine which is marked as exhibit C2.
4. 15 (fifteen) rounds of 9 mm pistol cartridges which are
collectively marked as Exhibit D2.
RESULT OF EXAMINATION
"Test firings were done through Ex-A2, B2 and C2 by using
cartridges of Ex-D2. The firing pin impressions on exhibits A2, B2
and C2 were compared with the firing pin impression on Ex-A which
was received vide memo No. GJ-2176/99 dt.23.8.99. The firing pin
impressions on the test cartridges fired through Ex-A2 and C2 and
Ex. A i.e. the exhibit cartridge case of memo No.GJ-2176/99 dt.
23.8.99 were found to be dissimilar. The firing pin impression on the
test cartridge fired through Ex-B2 i.e. Browing pistol No. 16236901
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was found to be similar to that of Ex-A i.e. exhibit cartridge case of
Memo No.GJ-2176/99 dt.23.8.99. Hence it may be opined that Ex-A
was fired by Ex-B2."
The said PW 10 had proved the reports.
15. PW 11, who is a Police officer had deposed in place of the original IO
Arun Kumar Sahu, who had died on 29.06.2013. The said fact of his death
has been recorded in the impugned judgment and on perusal of the
records, the death certificate of the earlier IO has also been seen. He had
deposed that the investigation was properly done.
16. The incriminating materials against the appellant which emerged
from the depositions were put to him in his examination under Section 313
of the CrPC [corresponding to Section 351 BNSS] wherein there was a
denial of the veracity and truthfulness. The learned Trial Court vide the
impugned judgment dated 08.11.2013 had convicted and sentenced the
appellant which is the subject matter of challenge in the present appeal.
17. We have heard Shri J.I. Borbhuiya, learned counsel for the appellant.
We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor,
Assam.
18. Shri Borbhuiya, learned counsel for the appellant has submitted that
there is no eye witness in the present case and the same is based on
circumstantial evidence. He has submitted that the circumstances are not
complete so as to form a chain which leads to the only conclusion of guilt
of his client. He has submitted that the conviction and sentence is mainly
based on the FSL report which is inconclusive. He has emphasized that in
the FSL report, there is no mention about the specification of the empty
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cartridge which was allegedly used. He had specifically mentioned that
while the number of the empty cartridge was 9MM2ZOK97, in the FSL
report only OK was written and therefore it cannot be concluded that the
empty cartridge which was recovered can be connected with the FSL Test.
He has also submitted that there is nothing to link his client with the
commission of offence. He has summarized his submission by contending
the following points-
a. There is no intention of his client to cause the offence and in
absence of any motive, the conviction and sentencing is not
tenable in law.
b. There are no criminal antecedents of his client and therefore the
benefit of doubt is required to be given to him.
c. The Armourer has categorically said that the arms and the
ammunition which were allotted to the appellant were returned
unused and therefore, there is no scope of use of any cartridge by
his client for commission of any offence.
d. There is no conclusive FSL report inasmuch as, the number of the
empty cartridge was not specifically stated.
e. There is no recovery of the bullet from the place of occurrence so
as to connect his client with the offence.
f. There is violation of Section 197 of the CrPC [corresponding to
Section 218 BNSS] inasmuch as, no prosecution sanction was
taken before prosecuting his client who is a government servant.
19. Shri Borbhuiya, learned counsel has specifically contended that while
the seizure list speaks about an empty cartridge bearing number
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9MM2ZOK97, the same was not even the subject matter of the FSL report.
He has submitted that from the year 2013, his client is in jail and has been
suffering incarceration and therefore the instant appeal is liable to be
allowed and the appellant be released forthwith.
20. In support of his submission, the learned counsel for the appellant
has relied upon the following case laws-
i. Raj Kumar Singh @ Raju @ Batya Vs. State of
Rajasthan [(2013) 5 SCC 722]
ii. Rajiv Singh Vs. State of Bihar [(2015) SCC OnLine
1336]
iii. Raisandeep @ Depu Vs. State of NCT of Delhi [(2012)
8 SCC 21]
iv. Mahendra Singh and Ors. Vs. State of M.P.
[03.06.2022]
v. Murarilal Vs. State of M.P. [(1980) 1 SCC 704]
21. In the cases of Raj Kumar Singh (supra) and Rajiv Singh (supra),
it has been reiterated by the Hon'ble Supreme Court that suspicion cannot
take the place of legal proof. For ready reference, the relevant paragraph in
the case of Rajiv Singh (supra) is extracted hereinbelow-
"60. It is well entrenched principle of criminal jurisprudence that a
charge can be said to be proved only when there is certain and
explicit evidence to warrant legal conviction and that no person can
be held guilty on pure moral conviction. Howsoever grave the
alleged offence may be, otherwise stirring the conscience of any
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court, suspicion alone cannot take the place of legal proof. The well
established cannon of criminal justice is "fouler the crime higher the
proof". In unmistakable terms, it is the mandate of law that the
prosecution in order to succeed in a criminal trial, has to prove the
charge(s) beyond all reasonable doubt."
22. The case of Rai Sandeep (supra) has been cited to bring home the
meaning of a sterling witness. The case of Mahendra Singh (supra) has
been cited to contend that it is the quality and not the quantity of witnesses
which will have a material bearing. The case of Murarilal (supra) has been
cited to contend that the opinion of forensic expert cannot be solely relied
upon.
23. Per contra, Ms. Bhuyan, learned Additional Public Prosecutor has
supported the impugned judgment and has submitted that the same has
been passed by taking into consideration all the relevant factors. She has
submitted that the occurrence had taken place in the broad daylight in
which death was caused to a young boy aged about 18 years. She has
submitted that the circumstances which were proved in the trial would
indeed constitute a continuous chain without any break and therefore the
conviction based on such circumstance is legally tenable. She has also
highlighted the aspect that in the examination under Section 313 of the
CrPC [corresponding to Section 351 BNSS], there is no specific denial by
the appellant to the implications made against him by the PWs.
24. With regard to the aspect of absence of any motive, the learned APP
has submitted that motive per se is not essential in all cases. She has
highlighted the aspect of the deposition of PW6, who in spite of being
declared as hostile, has stated in the cross-examination by the State that
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he had seen a pistol in the hands of the accused and hearing the sound of
a gunshot and his query to the appellant as to why he had taken out the
pistol in the hall there was no reply. To his further query regarding one
round short, the appellant had replied that he would manage. She had also
drawn the attention of this Court to the statement made by the said PW6
before the learned Magistrate in his examination under Section 164 of the
CrPC [corresponding to Section 183 BNSS].
25. The learned APP has also submitted that the evidence of the Doctor
who had conducted the autopsy (PW9) read with the report which was duly
proved corroborated with the oral evidence that it was by a bullet injury by
which the death was caused. She had also denied any ambiguity or
inconsistency in the evidence of the Scientific Officer (PW10) and the two
reports which were duly proved. As regards the submission involving
Section 197 of the CrPC [corresponding to Section 218 BNSS] pertaining to
prosecution sanction, she has submitted that the aforesaid provision will
not come into play as the offence was committed not in discharge of official
duties.
26. On the aspect of motive, the learned APP has placed reliance upon
the case of Surinder Singh Vs. The Union Territory of Chandigarh
reported in (2021) 14 SCALE 223 in which the following observations
were made by the Hon'ble Supreme Court:
"24. We are thus of the considered opinion that whilst motive is
infallibly a crucial factor, and is a substantial aid for evincing the
commission of an offence but the absence thereof is, however, not
such a quintessential component which can be construed as fatal to
the case of the prosecution, especially when all other factors point
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towards the guilt of the accused and testaments of eyewitnesses to
the occurrence of a malfeasance are on record."
27. At this stage, it would be apposite to refer to the judgment and order
dated 07.08.2007 passed by the Division Bench of this Court severely
criticizing the earlier judgment of the learned Trial Court dated 05.04.2006.
This Court had observed that there was hardly any discussion regarding the
depositions of the 10 nos. of witnesses. It was also observed that the
investigation itself was unfairly done with the sole objective to somehow
save the appellant in the trial as he was a Police Constable. Be that as it
may, since a de novo trial had taken place including framing of fresh
charges, this Court is required to examine the correctness and legality of
the subsequent judgment dated 08.11.2013 independently, which is the
subject matter of the present appeal.
28. The rival submissions have been duly considered and the materials,
including the LCR placed before this Court has been carefully examined.
29. As noted above, the thrust of the argument advanced on behalf of
the appellant is that the circumstances against his client is not complete so
as to form a chain leading to only one conclusion of guilt of the appellant.
He has highlighted that the conviction and sentence is mainly based on the
FSL report, which according to him is not conclusive. The aspect of lack of
any motive has also been highlighted and emphasis has been laid on the
deposition of PW4, the Armourer of the Police Reserve, who had deposed
that all the ammunitions which were allotted to the appellant were returned
unused.
30. To examine the said contentions vis-à-vis the contentions advanced
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on behalf of the prosecution, it would be necessary to sift the facts
including the position of law holding the field. The aspect of motive is not a
mandatory requirement for commission of an offence as knowledge itself
would also meet the requirement of convicting a person accused of an
offence. In the instant case, the death was caused by firing by a pistol in
broad daylight in the premises of a cinema hall.
31. Firstly, it would be required to examine as to whether the appellant
was present at the place of occurrence and whether he was in possession
of any firearm. The aforesaid aspect has been duly proved by none other
than his own colleague, namely Babul Dutta, PW6, who had stated that he
had gone to the cinema hall with the appellant. Though the PW6 was
declared hostile in his cross-examination by the prosecution, he had
categorically stated that he saw a pistol in the hands of the appellant in the
cinema hall, which he did not notice at the time when they had started
from the barrack for the cinema hall. He had also heard a sound of a bullet
being fired and on asking the appellant as to why he had shot, there was
no reply by the appellant. On the further question as to what the appellant
would do regarding there being one round short of the ammunition, the
reply was that he will manage. The aforesaid deposition of PW6 is also
required to be examined by his statement made under Section 164 of the
CrPC [corresponding to Section 183 BNSS], which has been duly proved. In
the said statement, a similar deposition was made that the appellant was
carrying a pistol and when he was asked as to how he would explain the
shortage, the appellant had said that he would arrange replacement of the
fired bullet. The aforesaid deposition of PW6 has remained unshaken in the
cross-examination by the defence. It is trite law that though a witness may
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be declared hostile, that part of the deposition can be taken into
consideration, which are unshaken in the cross-examination by the defence
and which are consistent with the other materials on record. In this regard,
one may refer to the decision of the Hon'ble Supreme Court in the case of
State of U.P. Vs. Ramesh Prasad Mishra reported in (1996) 10 SCC
360 wherein the following observations have been made:
"7. ... It is equally settled law that the evidence of a hostile witness
would not be totally rejected if spoken in favour of the prosecution
or accused, but it can be subjected to close scrutiny and that
portion of the evidence which is consistent with the case of the
prosecution or defence may be accepted. ..."
Though it appears that the finding of the learned Sessions Judge in
paragraph 31 of the impugned judgment that PW4 did not state whether he
received the equal numbers of ammunitions which he had issued earlier to
the accused person is erroneous, the deposition of PW6 that the appellant
had replied that he would arrange for replacement of the fired bullet duly
explains the situation.
32. The second aspect, which is the mainstay of the argument that the
use of the particular bullet has not been conclusively proved in the FSL
report, is required to be examined in details. As extracted above, there
were two opinions rendered by the FSL Officer as PW-10 inasmuch as,
there were two seizures in the present case. In the first seizure one fired 9
mm pistol cartridge and one 9 mm pistol (Browning) bearing Sl. No.
16120790 with magazine were seized which were sent for Forensic
Examination vide Memo No. GJ 2176/99. The seizure list by which the
empty cartridge was seized had specifically given the description of the
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number found on the bottom as 9 mm 2ZOK97. The said seizure list which
was duly proved had clearly stated that the same was found lying at the
place of occurrence and was numbered as MR No. 119/99 and vide the
aforesaid Memo No. GJ 2176/99 it is the same fired 9 mm pistol cartridge
which was sent for examination.
33. In the second report of the Senior Scientific Officer (PW10), he had
mentioned regarding examination of 3 Nos. of 9 mm Browning pistol
bearing nos. 16237182 (Exhibit A2), 16236901 (Exhibit B2) and 16236793
(Exhibit C2) along with 15 rounds of 9 mm pistol cartridges (Exhibit D2).
The result of the examination has been given that the empty cartridge
(Exhibit A) which was part of Memo No. GJ 2176/99 was fired by the 9 mm
Browning pistol No. 16236901 (Exhibit B2). There is no dispute to the fact
that the aforesaid pistol was allotted to the appellant and the empty
cartridge which was recovered from the place of occurrence was sent for
forensic examination vide Memo No. GJ 2176/99. To rule out any possible
ambiguity and for the interest of justice, we have also looked into the
original records and in page 30 of the Case Diary which is a part of the
records, the communication sent vide Memo No. GJ 2176/99 has been
examined which clearly describes the items sent which include an empty
cartridge bearing No. "9mm 2ZOK97" (Exhibit A). The said communication
was issued by the Chief Judicial Magistrate, Golaghat vide the aforesaid
Memo. Therefore, the submission made that reference to the empty
cartridge as "OK" instead of the full description as "9mm 2ZOK97" in the
forensic report would be inconclusive cannot be countenanced by this
Court. There is no manner of doubt that the empty cartridge of the fired
bullet found at the place of occurrence was found to be fired from the pistol
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allotted to the appellant.
34. On the argument that opinion of forensic expert cannot be relied
upon, in the case of Murarilal (supra) referred to by the learned counsel
for the appellant himself, the following has been laid down:
"4. We will first consider the argument, a stale argument often
heard, particularly in criminal courts, that the opinion-evidence of a
handwriting expert should not be acted upon without substantial
corroboration. We shall presently point out how the argument
cannot be justified on principle or precedent. We begin with the
observation that the expert is no accomplice. There is no
justification for condemning his opinion evidence to the same class
of evidence as that of an accomplice and insist upon corroboration.
True, it has occasionally been said on very high authority that it
would be hazardous to base a conviction solely on the opinion of a
handwriting expert. But, the hazard in accepting the opinion of any
expert, handwriting expert or any other kind of expert, is not
because experts, in general, are unreliable witnesses - the equality
of credibility or incredibility being one which an expert shares with
all other witness -, but because all human judgment is fallible and
an expert may go wrong because of some defect of observation,
some error of premises or honest mistake of conclusion. The more
developed and the more perfect a science, the less the chance of an
incorrect opinion and the converse if the science is less developed
and imperfect. The science of identification of finger-prints has
attained near perfection and the risk of an incorrect opinion is
practically non-existent. On the other hand, the science of
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identification of handwriting is not nearly so perfect and the risk is,
therefore, higher. But that is a far cry from doubting the opinion of a
handwriting expert as an invariable rule and insisting upon
substantial corroboration in every case, howsoever the opinion may
be backed by the soundest of reasons. It is hardly fair to an expert
to view his opinion with an initial suspicion and to treat him as an
inferior sort of witness. His opinion has to be tested by the
acceptability of the reasons given by him. An expert deposes and
not decides. His duty 'is to furnish the judge with the necessary
scientific criteria for testing the accuracy of his conclusion, so as to
enable the judge to form his own independent judgment by the
application of these criteria to the facts proved in evidence'. (Vide
Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34
quoted by Professor Cross in his Evidence)."
It may be mentioned that the aforesaid observations were made by
the Hon'ble Supreme Court in case of a handwriting expert whereas in the
instant case, the forensic officer was entrusted with ballistic examination
of certain arms and ammunition in which the conclusion is more objective
than subjective.
35. As regards the return of all the cartridges by the appellant which was
allotted to him has been adequately explained by the deposition of PW6
which has been discussed above. It is also established that at the relevant
time, the aforesaid pistol along with the cartridges was with the appellant
even when he had gone to the cinema hall in civil uniform and had
returned the pistol and ammunitions to the Armourer (PW4) at 01:00 PM.
36. The submission regarding violation of Section 197 of the CrPC
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[corresponding to Section 218 BNSS] is not tenable in law as the offence in
question was alleged to be committed not in discharge of official duties or
even on purported discharge of official duties. The offence was committed
in the complex of the cinema hall at a time when the appellant was not
entrusted with any duties at that place. The submission of non recovery of
the bullet would also not have much relevance as the empty cartridge of
the used bullet was duly recovered from the place of occurrence and the
same was found to be directly connected with the pistol allotted to the
appellant.
37. In view of the aforesaid discussions that we are of the considered
view that the chain of circumstances which stood fully established in the
trial leads to the only conclusion of the culpability of the appellant in
commission of the offence of murder. There is no other hypothesis which is
possible under the facts and circumstances of the case.
38. In conspectus of the aforesaid discussion and the materials on
record, we are of the view that the conclusion arrived at vide the judgment
and order dated 08.11.2023 passed by the learned Sessions Judge, Jorhat
in Sessions Case No. 38/2003 (GR Case No.559/1999) do not warrant any
interference.
39. The appeal is accordingly dismissed.
40. Send back the TCR.
JUDGE JUDGE
Comparing Assistant
