In the Court of the District & Sessions Judge Lunglei

IN THE COURT OF THE DISTRICT & SESSIONS JUDGE LUNGLEI JUDICIAL DISTRICT: LUNGLEI

R. No.13 /2011 /Crl.Tr.No. 146/2009:

Ref : Chawngte P/S Case.No. 4/2004 u/s 302 I.P.C R/W 27 Arms Act.

State of Mizoram. ..……………… Complainant Vrs Sangkaraj Chakma & Surjya Kumar Chakma ………...Accused persons.

Date of hearing ……………….……….20/12 /2012 Date of Judgment &Order ..…..….…….. 17/1/2013

BEFORE

Lucy Lalrinthari, District & Sessions Judge

PRESENT

For the Prosecution - ZDL. Pianmawia, P.P. For the Defence - B.Gupta , Advocate.

JUGEMENT & ORDER

1. The accused Sankaraj Chakma (22Yrs) S/o Suresh Chandra Chakma of Adubangasora and Surjya Kumar Chakma @ Phuko (30 yrs) S/o Kina Chandra Chakma of Jamersury have been facing trial in connection with Chawngte P/.S. Case No. 4 /2004 /s 302 IPC read with 27 Arms Act vide Crl.Trl. No. 146 /2009. They were tried for having shot death the Vice-Chairman Planning and Development Committee CADC Mr. Nutun Kumar Chakma and the case having stood till today, the court delivers the following judgment.

2. The instant case have been tried in the court of Additional District Magistrate, Saiha District and, Deputy Commissioner, Saiha District. After separation of Judiciary from the Executive, the Deputy Commissioner Saiha being without jurisdiction to try the case, the instant case have been transfer to District and Sessions Judge, Lunglei Judicial District Lunglei. The prosecution story of the case in brief is that on 5/5/04 Smt.Paddha Sashi Chakma W/o Nutan Kumar Chakma of Kamalanagar-II submitted a written report to O/C Chawngte P.S to the effect that on 5/5/04 @ 2:30 AM her husband Shri Nutan Kumar Chakma, Vice Chairman planning and development Committee, CADC was shot at their residential house with gun for which he was immediately taken to Chawngte P.S. Case No. 4/04 dated 5/5/04 u/s 302/120 (B) IPC R/W 25(IB)(a)/ 27 2

Arms Act and duly investigated into. Investigation of the case was initially taken up by Inspector M.C.Dothuama O/C Chawngte P.S, but subsequently the same was entrusted to S.K.Singh of SDPO Chawngte vide S.P.Lawngtlai order No. SR- 3/04/CWTE-P/S (Murder)/33 dated 11/5/04. During the course of investigation the P.O. was visited sketch map of the P.O. drawn, many incriminating articles like pellets/ bullets, gun powder, percussion caps, gun smoke stained cotton wads have been recovered and seized, as many as 18 witnesses examined and recorded their statements. Three accused persons namely (1) Hiran Kumar Chakma (38) S/o Ramesh Chandra Chakma of Kamalanagar-I; (2) Sangkaraj Chakma(22) S/o Suresh Chandra Chakma of Adubangasora; and (3) Surjya Kumar Chakma@ Phuko(30) S/o Kina Chandra Chakma of Jamersury were arrested, their statements recorded and sent to judicial custody. The weapon of offence i.e. one local made SBML gun was also recovered and seized on being led by the two accused Sankaraj and Surjya Kumar Chakma and pointed out by accused Sangkaraj Chakma. Prosecution sanction as required u/s 39 Arms Act has also been obtained from the District Magistrate, Lawngtlai vide No. J.11011/33/2001-DC(LTL)/3 dated 21/7/04. During the course of investigation it has been transpired that the three accused persons entered into a secret agreement/conspiracy to kill Shri Nutan Kuamr Chakma for wrongful political/material gains in that accused Hiran Kumar Chakma motivated the other two accused Sangkaraj Chakma and Surjya Kumar Chakma @ Phuko with a promise to pay Rs. 1,50,000/- and a job offered in the CADC if they can kill the said Nutan Kumar Chakma. Surija Kumar Chakma shot Nutan Kumar Chakma with an unlicensed local made SBML Gun at his residence on 5/5/04 at about 2:30 AM as a result of which Nutan Kumar Chakma sustained serious gun shot injuries for which he was immediately evacuated to CHC Chawngte where he succumbed to his injuries shortly thereafter. On careful study and analysis of the facts and circumstances of the case and evidences collected during the course of investigation it is crystal clear that there is sufficient evidence to prove that all the above named three accused persons namely (1) Hiran Kumar Chakma (2) Sangkaraj Chakma and (3) Surjya Kumar Chakma @ Phuko had a common intention with a pre-planned concerted aim for causing death of the said Nutan Kumar Chakma( the deceased). Hence, a prima facie case u/s 302/120(B)/34 IPC R/W 25(IB)(a)/27 Arms Act has been found well established against the accused Hiran Kumar Chakma, Sangkaraj and Surjya Kumar @ Phuko.

3. As per procedure u/s 207/208 of Cr.P.C all the police reports and its connected paper were supplied to the accused persons Sangkaraj and Surjya Kumar @ Phuko. Another accused person Hiran Kumar Chakma, sitting MDC of CADC

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was discharge at the time of consideration of charge by the then trying Magistrate Mr. H.P.Sahu, Deputy Commissioner of Saiha District. Such being the case, charge is frame against remaining two accused persons only. The accused two persons had no regular income hence, advocate Mr.B.Gupta is appointed to defend the accused persons u/s 304 Cr.P.C. as legal aid at the expense of State.

4. After hearing the ld. Prosecutor and the ld. defence counsel Mr. B.Gupta, charged u/s 302 IPC R/W 27 Arms Act was framed against accused Sangkaraj and Surjya Kumar @ Phuko which was read over to them and explained in the language known to them to which they pleaded not guilty to the charge framed against them u/s 302 IPC R/W 27 Arms Act and claim for trial.

5. In the instant case the prosecution has to prove the followings without a shadow of doubt that the two accused persons namely Sangkaraj Chakma and Surjya Kumar Chakma shot dead victim Nutan Kumar Chakma with an unlicensed locally made Gun.

6. In order to bring home the charge against the accused persons during the trial, prosecution examined fourteen (14) prosecution witnesses as follows. The first point in ned of proved is there was the death body of Nutan Kumar Chakma.

7. P.W.No. 1, Dr. B.D.Chakma, identified the accused persons and stated that on 5/5/04 at 8:20 AM constable Amar Tony Chakma has brought the dead body of Nutun Kumar Chakma at Hospital, Chawngte for PME. Accordingly, as he identified the dead body and found that it was the dead body of Nutan Kumar Chakma and it was also witness by Constable Amar Tony and decease’s wife. On examination of body he found that there was a perforating wound on the left arm and a penetrating on the back of the left part of the chest then in the presents of constable A mar Tony he opened the deceased chest from the back part of the left side of the chest. Under putting his hand he found around bullet lying on the left lungs cavity and bullet was handed over to the police and weapon used in his opinion the bullet is short barrel with a fire. In his opinion the injury was caused by bullet. In his opinion the caused of dead of Nutun Chakma is due to severe internal hemorrhage caused by the bullet injury. Ext- 6 is the PME report prepared by him and Ext-6(a) is his signature.

8. The above evidence of Medical Doctor is corroborated by the evidence of PW No 2 Amar Tony Chakma. PW No.2, Amar Tony Chakma, identified the accused persons and stated that on 5/5/04 being police constable of Chawngte P/S, he was

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detailed for guarding the dead body of deceased Nutan Kumar Chakma. The Doctor who examined the deceased body taken out one bullet from the dead body and he witness while the bullet was seized by the O/C, P/S, Chawngte from the hand of Doctor who conducted the PME. He also put his signature on the seizure list of the police as witness. Ext- 4(2)(c) is his signature.

9. PW No.5, Padder Sashi Chakma, wife of victim in the instant case, identified the accused persons and stated that on the date which she do not remember, Biswajit Chakma was died in Motor Accident between Chawngte ‘P’ and Chawngte ‘C’ in 2003, her sister heard that Sangkaraj Chakma stated that let Nuton Chakma should died instead of Bishwajit Chakma. She do not heard directly. She was the complainant of this instant case. She is the wife of Nutan Kumar Chakma. She lodged a complaint as his husband was fired shot dead by unknown culprit. She only suspected the two accused persons and Hiran Kumar also. She submitted complaint to the Police. Ext-(1) is her complaint and Ext-(1)(a) is her signature.

10. From the evidence of PW No 1, 2, and 5 above, it was established that there was the death body of victim Nutan Kumar Chakma, and Post Mortem Examination upon the death body of Nutan Kumar Chakma was done by Pw No 1 above, and according to him the caused of death was due to bullet injury; and he found the bullet lying around on the left lungs cavity.

11. The second point for consideration is whether the bullet injury causing the death of victim Nutan Kumar was caused by accused persons namely Sangkaraj Chakma and Surjya Kumar Chakma alias Phuko?.

12. PW No.3, Indra Lal Chakma, identified the accused persons and stated that during the relevant period he was the President of Young Chakma Association (YCA). He, being the leader of the NGO, Police invited him to help them in detecting the culprit and to help them in their investigation. And the Police being a Mizo, they needed him to translate Chakma Language, and he translate their language during interrogation. He visited the Police Station while the accused persons were interrogated and was translating the language while they were interrogated. At first, they all of them refused to admit their guilt. But after sometime, all of them admitted their guilt. Sankaraj Chakma and Surjya Kumar chakma stated that they had been contacted by Hiran Kumar Chakma saying that he would give them some amount of money if they could kill Nutan Kumar Chakma who at that time time was Chairman, Planning and Development Implementation Committee in Chakma Autonomous District Council (CADC). In the previous night,

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both of them went to the residence of Nutan Kumar Chakma and from outside of the House Sankaraj shot at the victim but it was missed. The family of the victim thought their gun shot was a child’s toy gun as there was not any gun in the area in the knowledge of the people. The next night, both of them again went to the residence of the victim for the same purpose. The dog barked and the victim came out of the house to enquire about the dog barking, and Surjya Kumar fired at the victim.

On, further questioning the accused stated that they had hidden the Gun somewhere near Power house at Chawngte. As led by the accused persons, the Police Party along with him approached the place where the accused stated they hid the Offensive Gun. As led by accused Sankaraj Police recovered the local made gun at few yards distance from south western direction of the said Power house. The Police seized the said gun in his presence. And on 5/5/04 around 8:30 AM he also witnessed the seizure of three pieces of cotton used for gun cartridges, 4 nos of bullets and wearing apparel of the deceased from the house of the deceased. He also put his signature on the seizure list prepare by the police as one of the witness. He was president of Central Young Chakma Association as well as Chairman of Co- Ordination Committee which was formed to assist the I.A for nabbing the culprits. Ext-4(1) is property seizure memo in respect of the three pieces of cotton , four bullets and a T-short of deceased. Ext-4(1)(b) is his signature on the seizure list. Ext. P-4(3) is property seizure memo in respect of the local made gun seized by the Police. Ext. P 4(3)(d) is his signature. Material Exhibit I is the local made gun seized by the Police. Material Exhibit-II are three pieces of cotton, four nos of bullets and T-shirt of the victim. According to the two accused persons Hiran Kumar Chakma hired them to kill Nutan Kumar for getting Political gain.

13. The above evidence of PW No 3 is corroborated by the evidence of P.W.No.19. H.C.Dothuama, who is the case I/O. He stated before the court that on 5/5/2004 while he was at Chawngte P/S as O/C, a written complaint was received from Smt. Paddi Sashi Chakma W/o Nutan Kumar Chakma of Kamalanagar-II (PW 5), to the effect that her husband Nutan Kumar Chakma, Vice-Chairman, Planning and Development Committee, CADC, Chawngte was shot by unknown persons. As a result of which he was taken to Civil Hospital, Chawngte and expired. On receiving this information, Chawngte P/S Case No. 4/2004 dt.5/5/2004 u/s 302 IPC was registered and investigation is taken up by him. During the investigation incriminating articles like pellets/ bullets, gun powder, percussion caps, gun smoke stained cotton was recovered and seized. Gun smoke stained cotton etc. are sent to F.S.L, Mualpui for examination to ascertain

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whether the articles are involved into this case. 18(eighteen) persons were examined by him. On the light of the statement given by the witnesses – (1) Hiran Kumar (38) S/o Ramesh Chandra Chakma, Kamalanagar –I, (2) Sangkaraj Chakma (22) S/o Suresh Chakma of Audubangasora and (3) Surjya Kumar Chakma @ Phuko (30) S/o Kina Chandro Chakma of Jamersury were arrested. The arrested three persons were thoroughly examined; from their statement it is found that the three accused transpired that they had a secret agreement between them to kill deceased Nutan Kumar Chakma. Hiran Kumar motivated the two accused persons namely – (1) Surjya Kumar and (2) Sangkaraj Chakma with a promised to pay a sum of Rs. 1,50,000/- of each persons and a Government job of their entitlement level best if they can kill the said Nutan Kumar Chakma. Accordingly, both accused persons (1) Surjya Kumar and (2) Sangkaraj Chakma agreed to do the job and having common intention they shot dead Nutan Kumar Chakma by use of local made gun. He engaged all NGO like YMA and YCA of Chawngte on which to expense a lot of time. On the evening of 8/5/04 they collected information that on that very (date of occurrence) two persons Sangkaraj Chakma of Audubangasora village and one unknown other hurriedly left Chawngte on asking them where they were going they are full of fear. On hearing that information he along with party rushed towards Audubangasora village and arrested Sangkaraj at Audubangasora. On his statement Sujya Kumar Chakma of Jamersury was also arrested on the next morning. From them all the story of the case was found out and further proceeding can be done.

The victim Nutan Kumar Chakma had good reputation in the society and the public like him. Therefore, the public wanted to detect the culprit. NGO helped the investigating agency a lot. He engaged Indra Lal Chakma, (PW 3) President of the YCA (Young Chakma Association) for translating the language (from Chakma language to Mizo language). When the accused persons were interrogated Indra Lal chakma (PW 3 above) translated their language. The accused persons refused to confess initially. However, later on they admitted their guilt. Accused Hiran Kumar admitted before him that he had promised to the other two accused persons namely Sangkaraj Chakma and Surjya Kumar Chakma to give Rs 150,000/- to them if they could kill the victim in this case. He further promised them that if the victim died he would have the chance to contest the election in place of the victim and if he was elected, he would do something for them. Unless the victim died, he had no chance to become MDC.

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The other two accused persons on interrogation admitted their guilt. According to them one night before the incidence, they attempted to kill the victim and Sangkaraj shot him from outside to their bedroom. But the family shifted their bed-room to another room and so the gun shot missed. The following night, they went again to kill the victim. On hearing the sound made by them the dog barked. Then the victim come out of the house to enquire the barking of the dog. Surjya Kumar shot at the victim from the fencing of the house. Then, the two accused persons stated that they had hidden the gun under the reed near Power House. The accused led them to the spot. PW No 3 Indra Lal Chakma and other public members accompanied the Police Party. On pointed out by the accused persons, he seized the gun in the presence of civilian witnesses. When he examined PW NO 5, Padda Sashi Chakma w/o deceased Nutan Kumar Chakma (NK Chakma), she stated that when the dead body of her husband was taken for disposal, all other MDC of CADC were sitting in their house. Hiran Kumar came in and his faced become darkened and was shaking, and within 5 to 10 minutes he went out and could not remain inside the house.

After completion of the investigation, but during awaiting examination report of exhibit from expert he was transferred from Chawngte to Lawngtlai the case was handed over to Dy.S.P. S.K.Singh SDPO Chawngte. M.Ext-I are 9 pieces of cotton used for loading gun powder and pellets, 39 Nos. of pellets. Ext-P-4 is property seizure memo and Ext-P-4(a) is his signature. M.Ext-II are 3 pieces of cotton used for gun cartridge, 4 Nos. of bullets, T-Shirt of deceased. Ext-4(1) is property seizure memo and Ext-4(1)(a) is his signature. M.Ext-III is bullet/pellet taken out from the body of deceased during PME. Ext-4(2) is property seizure memo and Ext-P-4(2)(a) is his signature. M.Ext-IV is local made gun seized by him. Ext-4(3) is property seizure memo and Ext-4(3)(a) is his signature. Ext-8 is sketch map of the P.O. drawn by him with a note of his finding in enquiry.

14. The evidence of PW No 20 also corroborated the evidence of PW 3 and 19 above. P.W.No.20. S.K.Hmar, identified the accused persons and stated that on 5th May, 2004, Chawngte P/S received FIR and the case was registered and investigated by Inspector M.C.Dothuama. So, he visited the P/O and drawn the sketch map and he also arrested the three accused persons. He seized one bullet taken out from dead body of the deceased and one local made Gun (SBML) taken out by the accused from the jungle. He also seized one polythene bags containing cotton and 88 Nos. of paper detonator and 39 Nos. of bullets. He also seized three pieces of cotton used for gun cartridge and four nos of bullets and one T-shirt of the deceased. The case I/O also sends the deceased to the Hospital for further examination, he also recorded the

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statement of complainant and reliable witnesses and the accused persons. The case was endorsed to him by S.P.Saiha for completion and further investigation. So, he received FSL report from Mualpui, Aizawl. Hence, he found a prima facie from the record of case record and evidences collected during the course of investigation u/s 302 /120 (B)/34 IPC R/W 25 (IB) (a) /27 Arms Act against the two accused persons. Ext-P-VIII(a) & (b) are forensic report received by him. Ext-P-IX charge sheet submitted by him and Ext-P-IX(a) is his signature.

15. The evidence of PW No 4, being a seizure witnesses also corroborated the evidence of the other pws. PW No.4, Daya May Dhomei, is also a seizure witnessed and identified the accused persons and stated that in the morning of 5/5/04 at about 8 AM while he was present near by the house of deceased Nutan Kumar Chakma , O/C, Chawngte, P/S seized three pieces of cotton used for Local made Gun and 4 pieces of bullets in his present. He put his signature on the seizure list. Ext-4(1) (c) is his signature on it.

16. From the evidence of PW No 3, 19, 20, 4 and 5 above, it was established that the two accused persons namely Sangkaraj Chakma and Surjya Kumar Chakma had shot dead at victim Nutan Kumar Chakma for a sum of Rs 150,000/- (Rupees one lakh fifty thousand). The prosecution witnesses are speaking the truth. The weapon of offence a locally made-gun was recovered at the instance of the accused persons, the testimony of the prosecution witnesses corroborated each other.

17. P.W.No.6. Ashim Chakma, identified the accused persons and stated that on 4/5/04 while he was sleeping in his house. He heard sound of cracker that he wake up and he saw somebody is pelting through window glass from outside but they ran away. On 5/5/04 his mother is knocking his room door telling him that his father was shot dead. He do not know direct involvement of the two accused persons but after arrest the two accused persons recovered the Gun after two/three days.

18. P.W.No.7. Anupam Chakma, stated that he was the son of deceased N.K.Chakma. He was reading Electrical Engineer at Polytechnic College, Madhurai. On 1st May, 2004 he and his wife arrived at Chawngte. On the night of 4.5.04, he was deeply slept and in the morning i.e. 5/5/04 when he wake up from his bed he knew that his father N.K.Chakma was serious because of hitting/ fired by the bullet.

19. P.W.No.8. A.Lalchhantluanga, stated that on the date which he do not remember, they are staying at N.K.Chakma house as rented near his residence, at about 12 midnight, his wife was preparing tea as her children is sick, then, his wife

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said that she heard some sound under the house, then he checked the door and find no one. After that he heard firing, he gets out when he reached N.K.Chakma house, Mr Nutan Kumar Chakma was unconscious and then brought to Civil Hospital. He have nothing more to say.

20 P.W.No.9.Sushil Bikash Chakma, stated that on 3.5.04 at midnight he heard some sound of N.K.Chakma’s wife and his son from their house but he could not know whatever they said since it was not clear their voice. He did not go out from hi house on that night i.e.3.5.04. When he went to the house of deceased N.K.Chakma i.e. in between 4th May and 5th MAY, 2004, the deceased wife told him that somebody had shot his husband on his person. He heard the sound of fire on the night of 5.5.04.

21. P.W.No.11. Sneha Muki, identified the accused persons and stated that she know that his husband Surjya Kumar Chakma left their house on the night of 3/5/04 and 4/5/04. She do not have anything to state other than what she have cited above. Prosecution prays the court that the witness be declared hostile. Prayer accepted. The accused is declared hostile.

22. P.W.No.15. Milan Sashi Chakma, identified the accused persons and stated that N.K.Chakma, the victim was the husband of her elder sister. Their family had been living at some distance from the residence of N.K.Chakma. In the early morning of 6.5.2004, before dawn, they were informed through telephone that N.K.Chakma had been shot by some person just a few minutes before. She and her husband rushed to the residence of N.K.Chakma. They saw him severely wounded and he was unconscious. He spoke no word. They took him to C.H.C.,Chawngte. After dawn he died.

23. P.W.No.17. Sunita Ranjan Chakma, stated that he had been living near the residence of N.K.Chakma. on 3/5/2004 he went to Sumsilui village and he returned on 5/5/04. on his way home he met Jadaya. He informed him that N.K.Chakma had been shot dead by unknown person in the early morning of 5/5/04. Accordingly to their custom he paid a visit to the deceased family.

24. The accused Surjya Kumar Chakma was examined u/s 313 I.P.C and the following are the questions and answers:- Q1. On 5/5/2004 at around 2:30 AM, Nutan Kumar Chakma, Vice-Chairman, Planning & Development Committee, CADC was shot dead at his residence at

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Kalamanagar-II. You and Sangkaraj Chakma were found to be the persons who had shot him. What do you have to say? Ans: It is false evidence.

Q2. The evidence against you is that on the morning of 5/5/2004, some persons saw you and Sangkaraj hurriedly leaving Chawngte and both of you were in full of fear. What do you have to say? Ans: It is false evidence. I was not at Chawngte on that particular night. There was no reason why I would flee. I did not visit Chawngte.

Q3. The evidence against you is that both of you hid local made gun at the outskirt of Chawngte and you led the police to the said place for recovery of the gun. You used the said gun for shooting Nutan Kumar Chakma. What do you have to say? Ans: It is false evidence. I did not led the police. I did not know about the recovery of the gun.

Q4. The evidence against you is that Hiran Kumar hired you and Sangkaraj by promising you to pay Rs. 1,50,000/- to kill Nutan Kumar Chakma for political gain and accordingly you shot him dead. What do you have to say? Ans: It is false evidence.

Q5. Do you have anything to say for your defence? Ans: No. I did not have.

25. The accused Sangkaraj Chakma was examined u/s 313 I.P.C and the following are the questions and answers:- Q1. On 5/5/2004 at around 2:30 AM, Nutan Kumar Chakma, Vice-Chairman, Planning & Development Committee, CADC was shot dead at his residence at Kalamanagar-II. You and Sangkaraj Chakma were found to be the persons who had shot him. What do you have to say? Ans: It is false evidence.

Q2. The evidence against you is that on the morning of 5/5/2004, you and Sangkaraj Chakma hurriedly leaving Chawngte . When people asked you where would you go. You were in full of fear. What do you have to say? Ans: It is false evidence. I was at my residence at Adubangasora.

Q3. The evidence against you is that you led the police to one place at the outskirt of Chawngte’L’ between Chawngte ‘L’ and R.Tuichawng and you pointed locally

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made gun that you had hidden. Police seized the same. You used the said gun for shooting Nutan Kumar Chakma.what do you have to say? Ans: It is false evidence.

Q4. The evidence against you is that Hiran Kumar hired you and Surjya Kumar Chakma by Rs. 1,50,000/- to kill Nutan Kumar Chakma for political gain. Then on the night of 5/5/2004, both you shot Nutan Kumar Chakma at his residence. What do you have to say? Ans: It is false evidence.

Q5. Do you have anything to say in this case? Ans: I am not involved in this case. Q6. The evidence against you is that you admitted before police officer that you and Surjya Kumar shot dead Nutan Kumar Chakma as hired you by Hiran Kumar Chakma. What do you have to say? Ans: I did not admit guilt before the police.

26. The learned Counsel ZDL Pianmawia, Public prosecutor submitted written argument stating that the incidence happened late at night. There was no eyewitness and the evidences are circumstantial. The crime was well prepared. The accused were promised to be paid a large amount of money for killing the victim Nutan Kumar Chakma for political gain. Therefore, more evidences could not be collected by prosecution. However, only on two grounds that prosecution could adduce evidence, the guilt of the accused persons can be established. That firstly, both the accused persons were seen hurriedly leaving Chawngte in the early morning of the fateful day. They look abnormal fearing something. They hurriedly passed by the people without having time for conversation. That secondly, local made gun was recovered and seized in the jungle led by the accused persons. That was leading recovery and it has a great weight of evidence. These two points are sufficient to conclude that the accused persons were guilty of killing the victim. Accused can be convicted on the basis of circumstantial evidences if they lead to no other but to the guilt of the accused persons. In the premises, he therefore, prayed that this Hon’ble Court may be pleased to convict the accused persons and punish them accordingly.

27. As rightly pointed out by the ld. PP above, the crime is committed late in the night past mid-night, hence, there is no eye witnesses. When the Police investigated the case as per PW No 19, case I/O some people stated that the two accused persons namely Sangkaraj Chakma and Surjya Kumar are seen hurriedly leaving the village, when enquired about their cause, they could not give proper reply and they look

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fearful so those people who have seen them are suspicious about their behavior. On this basis the Police are looking for them. After they were arrested, during interrogation, they admitted their guilt, and told the spot where they hidden the offending weapon, locally made gun. PW No 19, case I/O and PW No 3, along with other civilians recovered the said at the spot where it was hidden by the two accused persons. As per Evidence Act section 27, leading recovery is admissible. Hence I have no doubt that the recovered gun was hidden by the two accused persons and it was used by the two accused persons for shooting the victim. On the other hand the ld. counsel Mr. B.Gupta, Advocate submitted written argument stating that the prosecution in the instant case could not establish the offence alleged against the accused persons. As per evidence on record, there is no direct evidence to prove the fact of using gun and taking part in conspiracy before final goal of alleged shooting by the gun and the circumstantial evidence is so remote that accused persons, in no way implicating in the case. In support of this contention, it would be clear that apart from story narrated by the prosecution, no evidence has been adduced suggesting either participation in any conspiracy/agreement for killing the deceased Nutan Kumar Chakma or any other circumstances pointing to the guilt of the accused persons. There is no direct evidence who have seen the act of shooting of alleged seized gun in presence of witness. Apart from police, no civilian witness was present. This piece of evidence may be discarded. It is further submitted that prosecution had not examined any civilian witness who were present at the time of alleged recovery. Hence, Court may safely discard the fact of recovery allegedly on being led by the accused. The alleged offence against the accused has not been proved; hence, Hon’ble Court may acquit accused persons from the liability of the charge section. The argument submitted by the ld. counsel that there is no civilian witness present at the time of recovery of the offensive weapon is not based on truth. As the PW No 3 and PW No 19 above, definitely have given their evidence before the court that they were present at the time of recovery of the weapon of offence- that is the recovered gun. PW No 3 is a civilian and a leader of NGO, hence we can definitely said that civilians were present at the time of recovery of the seized gun. And the victim being a prominent citizen sitting Vice-Chairman of the Planning and Development Committee of the Autonomous Chakma District Council, and the people in General have sympathy with him, and the Non- Government Organization enthusiastically help the police in their investigation of the culprit, hence, the police are successful in apprehending the culprits.

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28. In their examination under section 313 of Cr.P.C, the two accused persons flatly denied of their involvement in the crime. But they could not explain in any way their stand except they were not present at the spot. In the case of Ramashraya and another Vrs. State of MP reported in AIR 2001 SC 1129) it was held that “No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claimed that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences, and they can only escape if it can be shown, or reasonably adduced, that the injuries was accidental or otherwise unintentional.

29. After careful consideration of the entire fact on record, I have come to the conclusion that the prosecution proved beyond reasonable doubt the offence committed by accused persons namely Sangkaraj Chakma and Surjya Kumar Chakma under section 302 IPC. The prosecution evidences are reliable and truthful. And the submissions and points raised by the defence counsel is not based on truth but his wishful thinking and of his wishful formulation with out any foundation and basis.

30. I therefore found the two accused persons guilty of committing offence u/s 302 IPC beyond reasonable doubt. The prosecution proved the case beyond reasonable doubt. And I convicted the accused Sangkaraj Chakma and Surjya Kumar Chakma u/s 302 IPC accordingly. As to the charged under section 27 of Arms Act, the seized Gun is of locally made and both the accused persons have no license to keep the said Gun. Hence, they are both guilty u/s 27 of Arms Act.

31. I heard the learned defense counsel Mr. B.Gupta, Counsel and the learned P.P. Mr. ZDL Pianmawia on the question of sentence. The learned defense counsel Mr. B.Gupta submitted that they may be given leniency, minimum sentence prescribed under law may be awarded as they are young and are both bread-earners in their respective family, besides they have come to the court regularly for along period of time more than 8 years and that is enough punishment, hence no more sentence be given. The leaned P.P Mr. ZDL Pianmawia has argued that the convicts have committed gruesome and diabolic crime by shooting death MR. Nutan Kumar Chakma Vice-Chairman Planning and Development Committee of CADC equivalent to sitting MLA in a state. There is no other grounds available to them except the lesser punishment prescribed by law u/s 302 IPC.

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32. The principals with regard to awarding punishment of death are now well settled by judgments of Supreme Court in Bachan Singh. V. Sate of Punjab (A.I.R 1980 Supreme Court 898), Machhi Singh, V. State of Punjab (1983) 3 S.C.C.-470) and Kehar Singh, V. State (Delhi administration) (1983)(3 S.C.C.-609). Briefly stated, the principles are that; on conviction under Sec. 302 I.P.C. the normal rule is to award punishment of life imprisonment and that the punishment of death should be reserved only for the rarest of rare cases. Whether a case falls within ‘rarest of rare cases’ has to be examined with reference to the facts and circumstances of each case. The court has to take note of the aggravating as well as the mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence. The Court is also expected to consider whether the circumstances of the crime are such that there is no alternative but to impose death sentence after according maximum weightage to the mitigating circumstances which speak in favour of the offender.

33. The following observations were made in Moolchand vrs. State AIR 1953/ All 220) that under section 302 IPC, a discretion vested in Courts either to impose a sentence of death or transportation for life (now life imprisonment) discretion must be always exercised according to principles and not according to the humour of the Judge, arbitrary or fanciful. The principle, upon which discretion is to be exercised not being fixed by any statute, may be interpreted progressively in accordance, with the spirit of times so that the real and not technical justice may be secured. To my mind, the true principle of exercising the discretion of imposing either the penalty of death or of transportation for life should be that the sentence of death is awarded in cases in which the act is very brutal and highly repugnant to morale and the sentence of transportation for life is imposed in all other cases. In the instant case, the act of killing by the accused persons is really brutal and cold-blooded, deliberate and ghastly. In Mizoram offence u/s 302 IPC with the motive of pure greed is very rare. The incident is shocking and sent alarm to public in general, at the time of the incident. It is the talk of the town. Moreover in Mizoram murder out of pure greed is very rare. Though the act of killing is no doubt cold-blooded. Gruesome and undesirable, it is not one of the rare cases of the rarest, and as such extreme penalty is not call for.

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Besides, accused persons are only 23 and 29 years old at the time of the incident; they might perhaps want to reformed themselves after they would spent 14 years in jail. I therefore considered a sentence of life imprisonment would serve the purpose.

34. I therefore sentence accused Sangkaraj Chakma and Surjya Kumar Chakma to life imprisonment u/s 302 of IPC and another 2 years u/s 27 Arms Act 1959 with a fine of Rs 1000/- i.d another one month S.I. Sentence shall run con-currently.

Seized article be destroyed immediately.

Given under my hand and sealed of this court today the 14th day of February 2013 AD.

Give copy of this order to all concerned.

( LUCY LALRINTHARI ) District & Sessions Judge, Lunglei Judicial District : Lunglei.

Memo No. …………...../D&SJ/LLI/2013 : Dated Lunglei, the 14th February, 2013. Copy to :- 1. Accused Sangkaraj Chakma and Surjya Kumar Chakma. 2. Public Prosecutor, Lunglei. 3. B.Gupta,Advocate, Lunglei. 3. P.I. G.R. Branch, Lunglei Court. 4. O/C, Chawngte,P/S. 5. Superintendent, District Jail, Lunglei. 6. Case record. 7. Registration Branch.

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