Baharul Islam, J.
1. The appellant, constable Majee Tana, has been convicted under Section 304 Part I. Indian Penal Code, and sentenced to rigorous imprisonment for ten years, by the Deputy Commissioner Siang District Along NEFA. The appellant along with co-accused Lance Naik Pura Tajo. were charged under Section 302/34 of the Penal Code. The appellant was further charged under Section 307 of which he was acquitted. Accused Pura Tajo was also acquitted of his charge. The appellant was also acquitted of the charge under Section 302/34 but convicted and sentenced under Section 304 Part I against which the appellant has filed the appeal, and the Deputy Commissioner has made the reference under the provisions of the Assam Frontier (Administration of Justice) Regulation. 1945. for confirmation of the sentence.
2. The prosecution case, in brief, is as follows:
On 1.4.1969 two constables of the 23rd Battalion, Special Service Bureau (SSB). Yingkiong in Pasighat Sub-Division of the Siang District, were sent by P.W. 9. Jamadar Ram Singh, to bring some jungle posts for repairing the fencing of the camp of the Battalion. These men while cutting some jungle posts, also cut three canes belonging to one Oken Sitek of Simong village without the permission of the owner. The owner demanded of the constable Rs. 1000/- as compensation for the three canes.
On 3.4.1969 at about 7.30 in the morning, the Bango Secretary, a Gam and five villagers reported to P.W. 9 about the removal of the canes. There some SSB personnel assaulted the Simong villagers who then went for treatment to the local health unit, where they were given treatment by P.W. 1. Dr. S.N. Guha and discharged. In the afternoon P.W. 1, P.W. 2, K.S.T. Rajan and P.W. 7. KakorAyum. went to the 23rd Battalion SSB camp and narrated to P. W. 9 the incident of the morning. P.W. 9 assured them that a Kebang for the settlement of the dispute would be held on return of the Head Gam of Simong village from Gete village where he had gone and of the Circle Officer, who had gone on tour. On the following day April 4 at about 8.45 in the morning some Simong villagers came to Yink-kiong to hold a Kebang on the incident of the previous morning. On arrival at Ying-kiong village the Simong villagers moved towards the SSB lines, whereupon P. Ws 2, 4, 5, 6, 7, and 9 requested the villagers not to proceed further, but the latter did not Pay heed to their request, but continued to proceed. After a short while blowing of whistles followed by firing of rifles was heard by the aforesaid witnesses. They hurried towards the SSB lines and found about 20 Simong villagers inside the perimeter of the SSB camp and a large number outside. The SSB personnel were firing. They fired nearly 200 rounds, when the Simong villagers ran helter-skelter. During this incident the appellant, wearing a red vest, was behaving in a queer manner. He had some bleeding head injuries. He had a dao in a scabbard and a rifle. He appeared to be very angry and was cutting everything in Adi that came his way. He was moving about in the lines and was firing his rifle. P. Ws 6, 7 and 9 requested the Simong villagers to clear up the camp and requested the SSB personnel to stop firing. Some of them stopped firing at their request but others continued. The appellant then ran towards the direction of CRP lines and fired his rifle, which hit Apiop Peyang the deceased, who was one of the Simons villagers.
A little earlier P.W. 10. Anong Sibo, ran away from the SSB camp when he was assaulted by some SSB personnel. He went to the Beyak nullah. When he was waiting there he saw his brother, Tani Sibo fall down at a distance of about 50 feet from him. He approached him and enquired what had happened to him. Tani Sibo reported that a rifle bullet fired by one SSB personnel had hit him. He gave the description of his assailant, as having one stripe on his right arm and a tatoo mark below his lower Ho extending up to his chin. Tani Sibo died in Yiong-kiong Health Unit later in the afternoon the same day. P.W. 10 identified accused Pura Tajo as the man who had shot and killed his brother. Tani Sibo.
3. The prosecution examined ten witnesses in the case. The two accused pleaded not guilty to the charges. The defence of the appellant is total denial. In his statement under Section 342 of the Criminal Procedure Code, he states that he was on duty in the quarter guard from 8 A.M. to 10 A.M. on 4.4.1969. After finishing his duty he took out his head-gear, shirt and belt and was going to the kitchen to have his morning meal. When he reached the main gate of the kitchen, he saw a crowd of Simong villagers entering into the camp. They were armed with daos and sticks. He immediately returned to the barrack in order to collect his shirt and head-gear. He took a dao with him. When he was passing through the Simong villagers who were in front of the quarter guard, he was struck on his head with a dao by some of them. He admits that at that time he was wearing a red vest. He then collected his rifle and rut five rounds of magazine into it and altogether fired five rounds, two of which he fired to the ground and two to the air: the fifth round went off automatically. When he was about to enter the quarter guard to collect his rifle, two Simong villagers forcibly entered into the guard room and tried to snatch away the rifles therefrom. They were, however, overpowered by the SSB personnel and confined inside the quarter guard.
4. The first submission of Dr. Medhi, learned Counsel for the appellant, is that after the acquittal of co-accused Pura Tajo, and after himself having been acquitted of the charge under Section 302/34, the appellant, who was charged for constructive liability, cannot be convicted of the substantive offence. The material portion of the charge is as follows:
That you on the 4th day of April, 1969 at about 10.40 hrs. at Yingkiong in furtherance of common intention, committed murder by intentionally causing the death of two persons of a group of Simong villagers viz: (1) Tani Sibo and (2) Apiop Peyang by firing rifle shots near the Special Services Bureau camp at Yingkiong and thereby committed an offence punishable under Sections 302/34 of the Indian Penal Code and within my cognizance.
The law is well settled that if there be evidence in the case to show that the accused was the person who caused the death, and if no prejudice was caused to the accused during the trial, he can be convicted for the substantive offence, though not charged with it.
In the case of Willie (William) Slaney v. State of Madhya Pradesh reported in : 1956CriLJ291 the Supreme Court has held:
In generality of cases the omission to frame a charge is not per se fatal. The very broad proposition that where there is no charge, the conviction would be illegal, prejudice or no prejudice, cannot be accepted as sound
The Supreme Court further held:
…The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown, the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.
In the instant case although the charge was for constructive liability for intentionally causing the death of two persons of a group of Simong villagers. during trial the prosecution led evidence to prove that the appellant caused bullet injuries to Apiop Peyang who died of such bullet injuries. The defence also directed the cross-examination to disprove that the appellant caused bullet injuries of which Apiop Peyang died. It is therefore, clear that no prejudice has been caused to the appellant.
5. Now the question is whether the evidence on record warrants a conviction of the appellant for the substantive charge. P.W. 9 is the Platoon Commander at Yingkiong. He gives a resume of the circumstances that led to the incident. His evidence is that on 1.4.1969 he sent constables, Gichik Ponnung and Hura Tage, for collecting some jungle posts for the repair of the fencing of the SSB lines. They returned to the lines with some jungle posts and three canes and told him that they cut the canes of a villager who demanded Rs. 1000/- for them. They told the owner of the canes that the matter would be settled on return of the Circle Officer from tour and they would pay whatever price is settled by him. On 3.4.1969 at about 7.30 A.M. the Bango Secretary, a Gam and five villagers came to him and reported the incident of April 1. At that time constable Gichik Ponnung was working nearby. He had a talk in Adi with the Bango Secretary. As they were talking, a Simong villager drew out his dao and attempted to strike Gichik Ponnung. who warded off the blow by catching hold of the hand of the villager. The Bango Secretary and the Gam told the villager that his action was objectionable. The SSB constables who were near about, then assaulted the villagers. But P.W. 9 intervened and stopped them from further fight The villagers then left the SSB camp. Afterwards P.W. 9 reported the incident to Kakol Ayum (P.W. 7). Eko Takseng (P.W. 6), K.S. Raian (P.W. 2) and the Head Gam of Simong. P. Ws 1, 2 and 7 came to the place of P.W. 9 in the evening when he narrated to them the incident which had taken place in the morning. He submitted a written report to P.W. 2, Rajan who said that the matter would be looked into on return of the Circle Officer of Yingkiong from tour. He also brought the incident to the notice of Nath (P. W. 4).
6. Next day at about 10.15 A.M. while P.W. 9 was going to Home Guard Office, he saw a large number of villagers advancing towards the SSB camp. P. Ws. 9, 6, 7 and 4 were trying to stop them and requested them with folded hands and touching their feet not to proceed towards the SSB lines. They, however, did not pay any heed to their request. At that time P.W. 9 heard sounds of whistle and hurried towards the camp. While running, he heard sounds of firing when he ran to his camp. When he reached the store house he saw about 50 to 60 Adi villagres inside the SSB camp and a large number outside. He saw the constables firing with their rifles. Some bullets hit the ground and some shots were fired in the air. He ordered them to stop. The firing continued intermittently for about 10/15 minutes. He however deposes that he does not know whose bullet hit and killed the person whose dead body was lying near the fencing of the SSB lines.
P.W. 6 is the Group Leader of the Home Guard at Yingkiong, He corroborates P.W. 9, on the incident of 3rd and 4th April. He deposes that on 4th April he and P.W. 9 followed by P.W. 7 went to quarter Guard. About 7 or 8 personnel were firing with their rifles. They were firing aiming at the villagers. The villagers were running away in all directions. He further deposes that the appellant had a dao and a rifle with him and was wearing a red vest and a Khaki half-pant, and was moving to and fro holding the dao and uttering 'Katib-Katib' (I shall cut, I shall cut). At that time also some of the SSB men were still firing to the Simong villagers, though none of the villagers were within the camp area. He further says that the appellant ran towards the direction of the CRP line and from a standing position fired at a Simong villager (whose name he later came to know to be Apiop Peyang) wiho fell down on the ground. He says that the appellant fired at Apiop Peyang when the latter was at a distance of about 25 yards outside the perimeter of the SSB camp. He further states that later on. from Bura Tage. cook of P.W. 9. he learnt that dead body of a villager was lying near the SSB camp perimeter. He went near the dead body to ascertain whether the dead body was of the person fired at by the appellant, and recognised it to be that of Apiop Peyang.
Before the committing Magistrate P.W. 6 stated that one Jawan armed his rifle towards a few people fleeing towards the CRP approach road, and fired one round that hit one man who collapsed at the spot. He could not recognise the injured person at that time, nor could he recognise the Jawan but he noticed the Jawan wearing a half-pant and a vest of reddish colour but without headgear. The Jawan was standing on the verandah of the living barrack. He categorically says that he could see that the bullet fired by the Jawan hit Apiop Peyang, 'an old man of Simong'. who fell down immediately. Later on he came to know that the aforesaid old man of Simong village was Apiop Peyang. P.W. 6 further says that when he saw the Jawan firing at the old man of Simong village, he (P.W. 6) was at a distance of 50 paces from the Jawan P.W. 7 was near him. There was nobody else at that time in the vicinity except Apiop Peyang. Some time later, he came to the dead body with other persons, touched it and found it cold. He noticed two injuries - (i) the right arm was badly damaged and it was hanging to the body with a thin layer of flesh, and (ii) one of the eyes was hit by bullet and the skull was blown off. He has categorically stated that when he visited the dead body he recognised it to be that of Apiop Peyang.
P.W. 7 is the Political Interpreter at Yingkiong. He says that when he reached the lawn in front of the quarter guard at the time of the incident, he saw 12 or 13 SSB personnel moving to and fro within the lines. They were firing with their rifles. He requested them to stop firing. Near the quarter guard he saw the appellant lying on the ground. He saw bleeding injuries on his head. At that time he was wearing a red vest and a khaki half-pant. Other men of the SSB were in uniform. After a little while, the appellant became furious and beffan to cut anything Adi that came his way with his dao. By this time firing had stopped. The appellant proceeded towards the CRP lines along the verandah of the living barrack and fired a bullet that hit 'an old man of Simong' who fell down. He further says that the appellant fired two rounds, one after another, and that the second bullet hit the old man of Simong. P.W. 6 was standing near him. In cross-examination he says that immediately before the second shot was fired by the appellant, he saw Apiop Peyang standing facing the SSB line.
7. These two witnesses give reasons as to why they distincly remember the description of the appellant and position from which he fired. They saw the appellant behaving in a queer manner, furious and agitated, and uttering words like 'katib', 'katib', and cutting everything Adi that came his way. They saw bleeding injuries on his head. This unusual behaviour of the Jawan attracted the attention of these two witnesses.
P.W. 9 also deposes that he saw his men firing with their rifles. He saw about 50 to 60 Adi villagers inside the SSB camp and a large number outside. They fired continuously for about 10 to 15 minutes. He saw the dead body lying about 3 yards beyond the fencing of the SSB lines. He corroborates P. Ws. 6 and 7 in that the appellant was wearing a red vest.
P.W. 4 also says that there was firing for about 15 minutes. He saw one SSB personnel pick up a rifle and fire a shot. That man who fired was wearing a red vest and was bleeding from his head.
8. According to prosecution, the links connecting the appellant with the assailant who fired at Apiop Peyang are two, namely, (i) the red vest and (ii) bleeding injuries on the head P.W. 1 says that he treated only two SSB personnel for injuries on the date of occurrence; one was the appellant with head injuries and the other was constable, Hura Tage. The latter was in SSB uniform. This fact corroborates the evidence of P. Ws. 6 and 7 that the appellant was the person who fired the bullet that hit Apiop Peyang. In our opinion the learned Deputy Commissioner rightly accepted the evidence of P. Ws. 6 and 7. Special credence was rightly given by the learned Deputy Commissioner to the evidence of P.W. 7 on the ground that this witness from the beginning till the end of the incident, at the risk of his own life, was requesting the Simong villagers not to proceed towards the SSB camp, even when the SSB personnel were firing.
9. Dr. Medhi submits that there is no proof that the dead body found near the SSB camp was that of Apiop Peyang; that there is no lesal evidence to prove that Apiop Peyang died of bullet injuries; and that the evidence of Dr. Guha, P.W. 1, is not admissible, as his evidence is based on no data. From the evidence summarised above, it is clear that the dead body was found near the perimeter of the SSB camp. This dead body was handed over to Asi Peyang, wife of Apiop Peyang. who identified and claimed the dead body to be that of her husband. Apiop Peyang.
Ext. 2 is a report prepared by Dr. S.N. Guha on this dead body. The report does not disclose the name of Apiop Peyang but that only one dead body was found near the SSB camp after the firing. The other injured, Tani Sibo died in the hospital. There is, therefore, no doubt that dead body found near the SSB camp was that of Apiop Peyang. Ext. 2 further shows that the dead body was found just outside the SSB camp fencing. The dead body was lying in an inclined position with the face towards the ground. The right hand was broken at the right elbow joint. P.W. 1 opines that the right hand was broken due to firing and bayonet charge. The occipital bone was totally smashed and the brain matter was visible. Ext. 2 further shows that there was profuse bleeding in the ears and nose and the entrance of rifle shot was at the nose and penetrated through the occipital bone. P.W. 1 in his deposition says that the wound of entrance was at the nasal bridge and that of exit at occipital region. The wound was caused by a bullet which could have traversed through the cranium damaging the brain contents. In his opinion, the death was instantaneous due to damage of vital centres situated in the occipital region. There was another wound 4' 2' involving cutaneous and subcutaneous muscles on the right elbow joint.
10. Dr. Medhi submits that the evidence of P.W. 1. Dr. Guha is not admissible as he has based his opinion on no data at all and in support of his contention he relies on a decision of the Nagpur High Court reported in AIR 1949 Nag 66 : 50 Cri LJ 181 where Justice Hidayatullah as he then was, held:
the function of the medical witness is to assist, not to supersede the Judge…. The opinion of a medical witness, however eminent he may be must not be read as conclusive of the fact which the Court has to try. Such opinion may be invited in exceptional circumstances where there is no dispute as to facts or their interpretation but it must be considered by the Court as nothing more than relevant. Any opinion which tries to determine the very issue which the Court has to try must be disallowed though the Court may consider it if there is no dispute as to facts whatever Justice Bose as he then was who was a party to the judgment, but delivered a separate judgment, observed as follows:
It is not permissible to him (medical witness) to substitute his judgment for that of the Court.
In the instant case the opinion of P.W. 1 that the death was instantaneous due to damage of vital centres situated in the occipital region, is not relevant as he held no post mortem examination and stave no data in support of his opinion. But his evidence excluding the opinion, will be relevant as that of any other witness. His evidence is that the entrance of the bullet was at the nasal bridge and the exit was at the occipital region and that the whole occipital bone was fractured in bits and the brain matter was visible.
In the instant case no post mortem examination was held as according to their local custom the Simong villagers did not allow such an examination to be held on the dead body. The report (Ext. 2) also shows that the occipital bone was totally smashed, the brain matter was visible, that the entrance of gun shot was through the nose and penetrated through the occipital bone.
The evidence of P.W. 1 in this regard and the contents of Ext. 2 are of course based on no result of post mortem examination but on guess from the sight of the injuries.
Ext. 3. which was the message sent on April 4 by P.W. 1 to the Deputy Commissioner at Pasighat, was as follows:
Two Simmong villagers expired due to rifle shot injury One died near the perimeter of ITBP at the spot (.) He got gunshot injury penetrated through the nose and brain and came out from the occipital bone. Other died due to bullet entering through the anterior margin of deltoid and pierce through the lung (.) Sig advice (.) Villagers are pressing for taking dead body (.)
This witness was not only a medical witness but he was a witness to the whole affair from the beginning to the end of the incident except that he did not see the appellant fire at deceased. Apiop Peyang, with his own eyes.
It may be remembered that the Criminal Procedure Code is not made applicable to NEFA (now Arunachal Pradesh); only the spirit of the Code applies. There are no police stations, no Investigating Officers or investigations, as enjoined by the Criminal Procedure Code. Compliance with the provisions of the Criminal Procedure Code, therefore, cannot be strictly insisted upon.
Considered all alone, the evidence of P.W. 1 does not conclusively prove that Apiop Peyang received bullet injuries to which he succumbed; but the evidence of P.W. 1 is corroborated by that of P. Ws. 6 and 7. P.W. 6 says that he could clearly see that a rifle shot hit Apiop Peyang. 'an old man of Simong village' who fell down immediately, but he came to know the name of injured person to be Apiop Peyang later on. He further states that when appellant Majee Taha fired the shot, he did not see anybody, else except Apiop Peyang. A little later learning from one Bur a Tage, P.W. 9's cook, that a dead body was lying near the SSB camp perimeter, he intending to check up whether the dead body was of the man fired at by the appellant, went to the dead body and recognised it to be that of Apiop Peyang.
P.W. 7 Kakol Ayum's evidence is that near the quarter guard he saw the appellant lying on the ground. He was bleeding from head injuries. He was then wearing a red vest and a khaki half-pant. He says that the appellant fired two shots one after another and the 'second bullet hit the old man of Simong'. He, however, says that at that time he did not know the name of either the injured or the accused, but he came to know their names later.
If the medical evidence is considered along with the evidence of P. Ws. 6 and 7. who were believed by the Deputy Commissioner, and whom we have no reason to disbelieve, there is no doubt that deceased Apiop Peyang received bullet injuries on the head and that he died as a result of these injuries.
The links connecting the accused with person who fired at Apiop Peyang namely the red vest on the assailant and the bleeding injuries on his head, have been established by the prosecution beyond reasonable doubt. That apart, the appellant, in his examination under Section 342 of the Code of Criminal Procedure, admitted that he was wearing a red vest at the time of firing, and that he had cut injuries on his head.
P.W. 4 to a question put by the Court replies that at the time of firing there was only one man who wore a red vest. It has therefore been established beyond reasonable doubt that the appellant caused the bullet injuries to Apiop Peyang
11. In this case no identification parade was held P. Ws. 6 and 7 identified the appellant only in the dock before the Deputy Commissioner. This identification is worthless. Dr. Medhi submits that in the absence of a Test Identification Parade, it cannot be said that the appellant was adequately identified P. Ws. 6 and 7 to be the Jawan who fired at Apiop Peyang. We have already held that the appellant was adequately identified. After considering the evidence on the question of identification of the accused, the learned Deputy Commissioner also has found that P. W. 7 saw the appellant firing one bullet which hit the 'old man of Simong'. He also has considered Ext. 2 and the evidence of P. Ws. 1 and 8. He finds on consideration of these pieces of evidence, that Apiop Peyang died of bullet injury. He further finds that the evidence of P. Ws. 1, 6, 7 and 8 and Ext. 2 considered together clearly establish that the death of Apiop Peyang was caused by the bullet fired by the appellant Majee Taha.
12. To sum up:
(i) Although the appellant was charged for constructive liablility under Section 302 read with Section 34 of the Penal Code with co-accused Pura Tajo and the latter was acquitted, the appellant can be convicted for the substantive offence. if there is evidence on record to warrant the conviction and if no prejudice is caused to the appellant:
(ii) In this case no prejudice has been caused to the appellant. The prosecution from the very start led evidence to prove that the appellant caused the bullet injury to Apiop Peyang. The defence directed the cross-examination to disprove it. The defence, therefore, knew the charge it had to meet;
(iii) Although no test identification parade was held, the appellant has been sufficiently identified beyond reasonable doubt by P. Ws. 6 and 7 who depose that the Jawan who fired at Apiop Peyang had bleeding injuries on his head and was wearing red vest. P. Ws. 4 and 9 further prove that the appellant was the only Jawan who was wearing red vest at the time of firing and other SSB personnel were in uniform. P.W. 1 proves that only two SSB personnel were injured and that only the appellant was wearing a khaki half-pant and a red vest and the other was in SSB uniform. Further, the appellant himself admits in his examination under Section 342, Criminal Procedure Code, that he was wearing a red vest at the time of the incident and that when he received injuries on his head when he fired;
(iv) P. Ws. 6 and 7 prove that the bullet fired by the appellant hit 'an old man of Simong' village who immediately collapsed.
(v) Although the age of Apiop Peyang is not available on record and the dead man is not proved to be 'an old man', only one dead body was found near the SSB fencing. This dead body was found at the place where Apiop Peyang had been hit by the bullet fired by the appellant. The dead body has been identified by P.W. 6 to be that of the 'old man of Simong' village who was hit by bullet fired by the appellant, and whose name the witness came to know later to be Apiop Peyang:
(vi) The said dead body was identified and claimed to be that of Apiop Peyang of Simong village by the widow of the deceased. This is proved by Ext. 5. a receipt granted by the widow on receipt of the dead body of her husband. Apiop Peyang.
(vii) P. Ws. 6. 7 and 1 prove that the deceased received injury by bullet that entered breaking the nasal bridge of Apiop Peyang and exited through the occipital region breaking the skull. The brain matter was visible So it can be inferred that the injuries were caused by bullet and that Apiop Peyang died of these injuries.
(viii) The post mortem examination on the dead body is not absolutely necessary to prove murder. Even in the absence of the dead body, murder may otherwise be proved by credible evidence. In the instant case, during cross-examination, it has been admitted by the defence that the deceased received a bullet injury to which he succumbed, though it was denied that the bullet injury was caused by the appellant.
13. In our opinion the prosecution has proved, beyond reasonable doubt, that the appellant caused bullet injuries to Apiop Peyang who succumbed to those injuries.
14. Now the only question is whether the conviction under Section 304 Part I of the Penal Code is proper. The Learned Deputy Commissioner has observed as follows:
These pepole, who 'are still in a primitive state of civilisation attacked the personnel of the XXIII Battalion SSB who were drawn from an equally primitive community of Daflas and Apatanis. on a flimsy ground of stealing three canes. Accused Majee Taha who was a Dafla was given a severe blow with a Dao On his head by one of the Simong villagers. Thus the provocation was sudden and grave and the accused having lost all power of self control fired his rifle at the deceased Apiop Peyang who was also a member of the Simong village, within 15 minutes of his receiving the fatal injury. Simongs, Daflas or Apatanis are easily cut to the quick and they flash their Daos or other deadly weapons over small matters. This state of their mental development and social back-ground will have to be borne in mind for Kroner appreciation of the case.
This finding of the learned Deputy Commissioner is justified. These grave and sudden provocations were manifest from the queer and abnormal behaviour of the appellant immediately before the firing. As a result of these provocations the appellant lost self-control and fired at Apiop Peyang who was an Adi. We agree with the learned Deputy Commissioner that the case is covered by Explanation I to Section 300 of the Penal Code and hold that the conviction under Section 304 Part I is proper.
15. In the result the appeal fails and is dismissed and the reference is accepted.
M.C. Pathak, J.
16. I agree