PULEN PHUKAN & ORS. versus THE STATE OF ASSAM

Citation: [2023] 4 S.C.R. 616 · Decided: 28-03-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 4 S.C.R.
616
   [2023] 4 S.C.R. 616
PULEN PHUKAN & ORS.
v.
THE STATE OF ASSAM
(Criminal Appeal No. 906 of 2016)
MARCH 28, 2023
[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
Penal Code, 1860 : ss. 302, 326, 147, 148, 149, 447 and 34
– Murder – Unlawful Assembly – Complainant-PW 1’s case that 13
persons entered her house and caused grievous injury to her
brother-in-law PW 2 and three of them assaulted the victim with
sharp cutting weapons resulting in his death – Trial conducted
against 11 of them – Courts below convicted them u/s. 147/148/
447/323/302/149 and sentenced them to imprisonment for life u/ss.
302/149 along with other punishment for the charged offences –
On appeal, held: Prosecution is not to accept the complainant’s
version as truth but the investigation must be made in a fair and
transparent manner and must ascertain the truth – No explanation
has come forward to explain the presence of the police personnel
throughout the incident – Entire version of the prosecution witnesses
that the police personnel accompanied the accused and were
standing outside the house of the deceased creates a serious doubt
on the very genesis of the prosecution story – Eye-witnesses have
not taken names of the 13 accused persons – No statement by the
eye-witnesses that all the accused persons had come with a common
object of committing murder and assaulting the injured PW-2 – It
cannot be said that all members of the unlawful assembly were aware
of the common object – It cannot be said that there was unlawful
assembly – Furthermore, material inconsistency in the statement of
the eye witnesses – No recovery at the instance of any accused –
Injuries of PW2 not proved as there was no injury report – Scribe
of the FIR also not produced nor the signatures proved – It is quite
possible that it was a complete set-up by the police – Although the
death was homicidal but the prosecution has not established the
case beyond reasonable doubt against the appellants, thus, entitled
to benefit of doubt – Order passed by the High Court set aside.
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Allowing the appeal, the Court
HELD: 1.1 The prosecution is not to accept the
complainant’s version as Gospel Truth and proceed in that
direction but the investigation must be made in a fair and
transparent manner and must ascertain the truth. The evidence
collected during investigation should then be analysed by the
Investigating Officer and accordingly a report under Section
173(2) of the CrPC should be submitted. Further, the duty of the
trial court is to carefully scrutinise the evidence, try to find out
the truth on the basis of evidence led. Wherever necessary the
trial court may itself make further inquiry on its own with regard
to facts and circumstances which may create doubt in the minds
of the Court during trial. If the investigation is unfair and tainted
then it is the duty of the trial court to get the clarifications on all
the aspects which may surface or may be reflected by the evidence
so that it may arrive at a just and fair conclusion. If the trial court
fails to exercise this power and discretion vested in it then the
judgment of the trial court may be said to be vitiated. [Para
13][628-F-H]
1.2 In the instant case, the informant- PW-1, the injured
eye-witness PW-2, eye-witness PW-3 and PW-4 have categorically
stated that police personnel had accompanied the accused and
they were there throughout the incident. This fact is noticed by
the trial court in its judgment but it fails to get this clarification
from the prosecution as to what occasioned the presence of the
police personnel accompanying the accused and standing outside
the house of the deceased to watch the accused assault PW-2
and commit the murder of his brother. The trial court had simply
brushed aside the argument of the defence on this count without
giving a serious thought. [Para 14][629-A-B]
1.3 If the police personnel were present at the time of
commission of the offence, they should have immediately acted
upon to set the criminal machinery in motion by first apprehending
the accused from the spot itself rather than allowing them to get
way by accompanying the police to the Police Station while
continuing to assault the injured PW-2 on the way. The entire
version of the prosecution witnesses that the police personnel
accompanied the accused and were standing outside the house
PULEN PHUKAN & ORS. v. THE STATE OF ASSAM
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SUPREME CO

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