Meghalaya High Court Acquits Man Accused Of Murder Committed in 1985
Crl.A. No. 1 of 2018
Shri. Alphon Khardewsaw Vs. State of Meghalaya.
On 6th May 2021, a division bench of Hon’ble Justice Ranjit More and Hon’ble Justice W.Diengdoh set aside the trial court’s judgement dated 22nd February 2018 convicting a man of murder committed in 1985.
The prosecution’s case in brief was that on the night of 20thJuly 1985, Shri. Alphon Khardewsaw (present appellant) and Shri. Siren Marshiangbai of Tiriang had assaulted the deceased on the road with a hammer, stones, and an iron chain, causing multiple fracture wounds on the head of the deceased as a result of which the deceased died on the spot instantaneously. The family members of the deceased, on hearing the hue and cry of the deceased, rushed to the spot while the accused persons fled away from the spot. During investigation, it was found that prima facie case under Section 302 r/w 34 IPC was established against both the accused and hence Charge Sheet No. 43/1985 under Section 302 IPC was filed.
The Trial began in 1992, and the accused’s statement under Section 313 of CrPc was recorded in December of 2003. Accused No. 2, Shri. Siren Marshiangbai died in the year 2006. The judgement, rendered in 2018, came at an over all delay of 33 years.
On a re-examination of the evidence on record and the testimony of witnesses, the High Court found that there were several inconsistencies in the prosecution witnesses’ statements, to the point that a substantive statement of facts could not be established.
Further, the chargesheet listed 13 witnesses but in the course of the trial only 8 witnesses were examined. The doctor and Investigating Officers were not examined. Repeated summons were issued but as they went unanswered, the witnesses were dropped and the trial court deemed the prosecution’s case to be closed.
Mr. K.C.Gautam, the counsel for the accused contended that the fact that the doctor who performed the medical examination of the body could not be examined meant that the prosecution could not even establish the homicidal nature of the death of the victim. The counsel further stated that the contradictions of the prosecution witnesses were not brought on record and the accused’s statements under Section 313 of CrPc was recorded in a perfunctory manner, all of which caused great prejudice to the accused.
Mr. K.Khan, the Senior Public Prosecutor opposed the appeal and said that there were no inconsistencies in the witness testimonies and the non-examination of the doctor was not fatal to the case, relying on Dayal Singh & Ors. v. State of Uttaranchal (2012) 8 SCC 263. The bench dismissed these arguments, stating that in the present scenario, both the investigating officer and the doctor were not examined, and thus great prejudice was caused to the accused. To this, the prosecutor contended that in such a case, an appeal ought to be remanded back to the trial court.
The court observed that while in Bahadur Naik v. State of Bihar (2000) 9 SCC 153 it was held that non-examination of the Investigating Officer as a witness is of no consequences when material contradictions could not be brought on record, in the present case, there were inherent contradictions in the evidence of the alleged eyewitnesses. Therefore, it could bedefinitely said that great prejudice had been caused to the appellant/accused by such non-examination.
The accused’s statement under Section 313 CrPc were brought on record once again and the court remarked that the statement consisted of just one line stating that he had not killed the deceased and he did not know neither the deceased, nor the prosecution witness/ informer, who’d filed the FIR.
The court relied on the decisions in Nar Sing v. State of Haryana (2015) 1 SCC 496 and Samsul Haque v. State of Assam, 2019 SCC Online SC 1093 to state that it was the duty of the court to bring the substance of accusation to the appellant/accused to enable him to explain each and every circumstance appearing in the evidence against him and that in the present case this was not done. This coupled with the fact that both the doctor and the investigating officers were not examined, and the 33 year delay in the disposing off of the case, led the High Court to quash the judgement of the trial court and acquit the accused. The court also ordered his immediate release.