An accused's participation in criminal activity and possession of arms during an encounter validates conviction when no credible alternate explanation is provided.

1.Heard Mr. A. Ghosh, learned counsel for the appellant as well as Mr. H. Sarkar, learned Addl. PP for the State.

2. This criminal appeal has been preferred against the judgment of conviction and sentence dated 30-6-1997 passed by the learned Addl. Sessions, Judge, South Tripura, Udaipur in case No. ST 35(S.T. / A) / 96 whereby the appellant was convicted under S. 307, IPC and sentenced to suffer RI for 5 years with a fine of Rs. 2,000/-, in default, RI for one year more and also convicted under S. 27 of the Arms Act with a sentence of RI for one year and a fine of Rs. 500/-, in default, RI for 3 months more.

3. The appellant preferred this appeal while in custody on 29-1-2000 seeking condonation of delay which has been condoned and the appeal was admitted on 7-2-2000.

4. The prosecution case is that on 9-10-95 at about 11-45 hrs. while the Addl. SP being accompanied by other Police personnel and TSR jawans was conducting a special operation at Ruhidaspara under Taidu PS, some extremist militants attacked the police party and started firing from their country - made arms from nearby jungles and in defence, the police personnel also opened fire. Encounter continued for about ten minutes and the extremists could manage to escape, but one of them viz. the appellant herein could be apprehended with bullet injury and two numbers of country - made guns and one '22 revolver and one HE - 36 hand granade had been recovered and seized from the possession of the appellant. The police filed charge sheet under S. 148/149/353/307 IPC and also under S. 25/27 of the Arms Act . The case having been committed to the Court of learned Sessions Judge who transferred it to the file of learned Addl. Sessions Judge. Learned Addl. Sessions Judge framed the charge against the accused persons. The charge framed against the accused persons alleging, inter alia, that the accused appellants along with other extremists committed the offence punishable under S.148/149/353/307 IPC and also an offence punishable under S.25/27 of the Arms Act .

5. The prosecution examined as many as 9 PWs while the defence none. From the evidence on record, it remains proved that the appellant was caught red handed in injured condition from the jungle. The learned counsel for the appellant argues that the injured was apprehended from his house premises situated in the jungle, but from the evidence of P.W. 5, it reveals that the injured was found in a place where there was no hut at all. Other witnesses only deposed that the injured was found in the jungle. There was no suggestion at all given by the defence during trial that while the accused had been inside his house premises, he sustained the bullet injury and as such it cannot be held that during encounter between the Police party and the extremists, the accused - appellant had been in his house premises. It is correct that the injury sustained by the appellant has not been specifically examined by the expert to ascertain whether the appellant sustained injury by any sort of weapons used by the Police personnel or by a bullet used by the extremists through their country - made guns. But fact remains that the appellant was found with bullet injury at the spot where the encounter occurred. There is no reason to disbelieve any of the PWs, because all of them belong to police force and there is no personal enmity borne by any of the witnesses against the appellant. Learned defence counsel contends that since the appellant was found injured, to absolve the liability the Police concocted the case having marked a stamp identifying the appellant belonging to extremist group. F