Tripura High Court
Sri Uttam Sarkar vs The State Of Tripura on 25 May, 2022
Bench: T. Amarnath Goud, Arindam Lodh
Page 1 of 12
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.A(J). No. 34 of 2020
1. Sri Uttam Sarkar, son of late Umesh Sarkar, resident of Belabar,
Laxmipur, P.S. Amtali, District: West Tripura.
.....Appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mr. B. Deb, Advocate.
Mr. A. Acharjee, Advocate.
For Respondent(s) : Mr. Ratan Datta, P.P.
Date of hearing and delivery
of judgment and order : 25.05.2022
Whether fit for reporting : NO
JUDGMENT & ORDER [ORAL]
[T. Amarnath Goud, J]
Heard Mr. B . Deb, learned legal aid counsel assisted by Mr. A. Acharjee, learned counsel appearing for the convict-appellant. Also heard Mr. R. Datta, learned Public Prosecutor appearing for the State of Tripura- respondent.
[2] This criminal appeal has been filed under Section-374 of Cr. P.C. against the impugned judgment and order of conviction and sentence dated 18.04.2015 passed by the learned Addl. Sessions Judge, Agartala, West Tripura Judicial District in connection with Case No. ST. 182 of 2013 whereby and whereunder, the appellant has been convicted under Section-302 of IPC and thereby sentenced to suffer RI for life under Section-302 of IPC and he is Page 2 of 12 also sentenced to pay a fine of Rs.5,000/- for the same offence with default stipulation.
[3] The prosecution story, in brief, is that the deceased Chandi Das (Sarkar) was the wife of convict-appellant, namely, Uttam Sarkar. The marriage of Chandi was solemnized about 13 years back with the appellant. But about two and half years before the occurrence she came back from her matrimonial house due to continuous torture by her husband and started living at her father's house. In this regard a criminal case was lodged by Chandi at P.S. which was pending for trial. On 14.01.2007 at about 4.30am she was murdered in the house of her father Nani Gopal Das (PW-1).
[4] On 13.01.2007, at night on the eve of Poush Sankranti a picnic was organized in the house of the informant Sri Nani Gopal Das (PW-1). In the said picnic besides the family members of the informant, his tenant Dipti Malakar (PW-3) was also participated. After completion of the picnic at about 4.00pm his two daughters namely, Laxmi Das (PW-2) and Chandi Das (deceased herein) along with tenant Dipti Malakar started grinding of rice in the kitchen of said Dipti Malakar. At about 4.30am Dipti Malakar and Laxmi Das went out from the kitchen for natures call. At that time, they heard cry (Mago Mago) of Chandi Das. On hearing her cry Laxmi rushed to the kitchen and saw that the appellant, the husband of Chandi to chop her with a dao. The appellant tried to assault Laxmi Das on seeing her at place of occurrence. But ran away and called her father who on wakening up came to the place of occurrence and saw their daughter Chandi was lying nearby oven with bleeding injuries on her head and neck. Informant brought her injured daughter on the courtyard but found her succumbed to injuries. Smt. Ila Deb (PW-9) at 6.10 received telephonic information from an unknown person for police help due to murder of a married woman in the house of Nani Gopal Das at Barjala. Entering the information in the GD Book she went to the house of said Nani Gopal Das (PW-1) to verify the information and received the complaint from Nani Gopal Das which was sent by her to the P.S. for registration.
Page 3 of 12[5] On receipt of the complaint, the OC, Agartala Women Police Station registered Agartala Women P.S. Case No.08 of 2007 under Section- 302 of IPC against the convict appellant. Smt. Ila Deb (PW-9) being the O.C. of Agartala Women P.S., she took up the investigation of the case. During investigation, she prepared hand sketch map of the P.O. with separate index, prepared inquest report over the dead body of the deceased. Investigated available witnesses and recorded their statements under Section-161 of Cr. P.C. Arranged postmortem examination of the dead body, seized some materials namely, blood stained bowl, grained rice and green coloured sieve, blood stained gunny bag a woolen wrapper partially burnt from the place of occurrence by preparing seizure list Exbt.9. PW-9 also seized wearing apparels of deceased by preparing seizure list Exbt.10. Finally a prima facie case having been established against the accused Uttam Sarkar, the convict appellant for commission of offences punishable under Section-302 of IPC, the I.O. laid charge-sheet bearing No.63 of 2007 dated 30.06.2007 against the convict- appellant.
[6] On receiving the police report and other documents, cognizance of offences punishable under Section-302 of IPC was taken on 21.09.2007 and thereafter, having complied with the statutory requirements of Section-207 Cr. P.C. on 26.11.2013, the learned Judicial Magistrate, 1st Class Court No.7, Agartala, West Tripura transferred the case record to the learned Addl. Sessions Judge, West Tripura, Agartala for trial in accordance with law.
[7] On 24.06.2014, when the convict-appellant was produced from JC before the Court of Public Prosecutor opened the case by describing the charge brought against the appellant. On considering the materials in the record and after hearing of both sides, the appellant was charged for having committed offence punishable under Section-302 of IPC. During trial, the prosecution examined as many as 9(nine) witnesses. On closure of prosecution evidences, on 17.03.2015 the appellant was examined under Section-313 of Cr.
Page 4 of 12P.C. to which he strongly denied the allegation brought against him by the prosecution.
[8] On the basis of the evidence and materials available on record and after hearing argument advanced by the learned counsel appearing for the parties, the learned Addl. Sessions Judge, West Tripura, Agartala, convicted the appellant as aforementioned.
[9] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction dated 18.04.2015, this present appeal has been preferred by the appellant.
[10] Mr. B. Deb, learned legal aid counsel appearing for the appellant has submitted that the findings of the learned trial Court below is perverse, illegal, unjustified, unreasonable, arbitrary, unwarranted in law and facts and as such, not tenable in the eye of law. He has further submitted that the Court below by way of non reading, misreading and improper appreciation of evidence on record and facts and circumstances of the case arrived at absolutely illegal and wrong finding causing grave miscarriage of justice to the appellant.
[11] According to counsel for the appellant, the trial Court below ought to have held that the alleged presence of the convict appellant at the alleged place of occurrence, alleged participation of the appellant in the commission of the alleged offence are absolutely doubtful and on the basis of such evidence the appellant could not be legally convicted for the alleged offence. Relying on the improved version of all the PWs illegally and on the basis of such improved versions, convicted and sentenced the appellant only on surmise and conjecture.
[12] The inquest report there are two injuries whereas, in the postmortem report there were eight injuries found by the PW-8. Then, the opinion of PW-8 that the deceased died out of aforesaid injuries found by him Page 5 of 12 is doubtful. Mr. Deb, learned counsel has further argued that the evidence of PW-9, the investigating officer who, reached to the place of occurrence on the basis of telephonic information received in the Agartala Women P.S. about the death of a woman by entering the information into the GD Book of the P.S. So, as per information it was the duty of the OC of the P.S. to register the case being the information was in respect of commission of the offence. But the learned Court below failed to appreciate the same.
[13] The evidence of PW-3 is not a reliable or trustworthy witness as her conduct was quite unnatural as she did not call her husband or any other member in her family on seeing the occurrence and also that her evidence is an improved version before the Court is also not tenable in the facts and circumstances of the present case. But the Court below failed to appreciate the same. He has submitted that the incident took place at night and the claim of the eye witness PW-2 that she identified the accused, is not believable. PW-2 and PW-3 both are interested witnesses in this case. But the Court below relying upon the improved version convicted the appellant. As such, the order of the conviction needs to be interfered with by the Court.
[14] The Court below has not discussed a single word regarding the cross-examination of the prosecution witnesses and the defence of the accused person. The learned Court below misconceived and misunderstood the legal position of law.
[15] With the above factual matrix in prosecution case, the sole point for consideration is whether the convict-appellant has committed murder of his wife Chandi Das (Sarkar). Let us relook into the vital aspects of the present case by rereading the evidence of the witnesses.
[16] Nani Gopal Das (PW-1) is the informant and father of deceased Chandi Das. Smt. Laxmi Das (PW-2), sister of deceased and Smt. Dipti Malakar (PW-3), a tenant in the house of the informant and they are the eye witnesses of the occurrence. Smt. Gita Das (PW-4) is the mother of the Page 6 of 12 deceased. She did not see the occurrence but came to the spot on being informed by her daughter (PW- 2) and found her daughter with injury. All the aforesaid witnesses are the witnesses of facts. (PW-5) scribed the Ejahar (FIR) given by PW-1. Simai Das (PW-6) and Thakurdhan Das (PW-7) are the witnesses of seizer Memo in respect of the M.O. 1 (Series). Dr Jayanta Sankar Chakaborty (PW-8) conducted Post-mortem examination over the dead body of deceased Chandi Das and furnished report Exhibit- 4. PW-9 Smt. Illa Deb is the IO of the case. After investigation she submitted charge-sheet against the convict-appellant.
[17] On perusal of the post-mortem report Ext.4 it is evident that the death of Chandi was due to shock and haemorrhage due to multiple injuries over neck. She sustained as many as eight injuries on her body. The purpose of preparation of Inquest report is to determine the prima facie cause of unnatural death. There are no requirements in law that I.O. making inquest should described in details as to the nature of injuries sustained by the deceased. It is the medical officer who conducting the post-mortem examination to see minutely the nature of injuries sustained by deceased. When the I.O. stated that he noticed two injuries on the body of the deceased that might be due to her non-observation minutely as most of the injuries were on the head and neck of the deceased Chand. PW 8 the medical officer classified the injuries in many numbers as per medical term over specific region of head or neck which may not be possible on behalf of a police officer who is not an expert in the subject. Besides that some injuries may be over shaded due to blood stained on the surface of the body to cover the visible injuries which might have overlooked by the IO at the time of making of inquest. The commission of some injuries in the inquest report does not affect the prosecution case. In this regard the decision of Hon'ble Supreme court in Munsi Prasad and Others vs. State of Bihar, (2002)1 SCC351 is meaningful where in the Hon,ble Court discussed about the effect of discrepancies in between inquest report and the post- mortem report and the supreme court thus observed:
Page 7 of 12"6.Let us, however, examine the omissions in either of the documents as produced before the court and consider for ourselves as to whether there is any material difference which would otherwise affect the trial by reason of a doubt as regards the reliability of the prosecution case. Item nos. 4 and 5 in the inquest report are the two basic items, which are said to be missing in the postmortem report, as such the contention of existence of suspicious nature of prosecution. We, however, cannot lend our concurrence thereto. There may or may not be injuries on the left or the right foot but the fact remains that there is no mention of the same in the postmortem report-does it otherwise affect the credibility of the prosecution case? Postmortem report is prepared by the doctor, who held the postmortem examination on the body of the deceased Indrasan Prasad and his findings have been recorded therein. The document by itself is not a substantive evidence but it is the doctor's statement in court, which has the credibility of a substantive evidence and not the report, which in normal circumstance ought to be used only for refreshing memory of the doctor witness or to contradict whatever he might say from the witness box. In this context reference may be made to a decision of the Madras High Court in Re. Ramaswami [AIR 1938 Madras 336]. In the similar vein the inquest report also cannot be termed to be a basic or substantive evidence being prepared by the police personnel being a non-medical man and at the earliest stage of the proceeding. On the wake of the aforesaid, a mere omission of a particular injury or indication therein of an additional one cannot however invalidate the prosecution case. The evidential value of inquest report cannot be placed at a level as has been so placed by the appellant. Preparation of an inquest report is a part of the investigation within the meaning of the Criminal Procedure Code and as noticed above neither the inquest report nor the postmortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. On the factual score Mr. Venkataramani relied heavily on the evidence of PW-7 being the Jagdishpur police camp-in-charge. In his evidence, PW-7 stated that the inquest report was prepared on the basis of the information contained in sanah no.306 and since the sanah has not been produced, it has been contended that sanah being the basic information sheet, non-production thereof would entail the consequences of adverse presumption as regards the involvement of the accused persons. Obviously, thus it has been contended that nobody had any clue as to how the incident had occurred. Eloquent as always, Mr. Venkataramani has, in our view, overemphasised the issue. Non-production of a substantive piece of evidence can under certain circumstances Situations, obviously would entail such consequences but in the present context, one cannot possibly stretch it that far."Page 8 of 12
[18] In view of the above principle laid down by the Hon'ble Supreme court in appreciation of evidence with regards to the value of post-mortem report and the inquest report there would be no material effect in the case at hand due to some discrepancies in between the post- mortem report and the inquest report over the dead body of deceased Chandi.
[19] In the instant case as discussed above the IO has stated that the telephonic information was from an unknown person about the murder of one unknown married woman which is nothing but a cryptic massage seeking presence of police at the place of occurrence. There was no scope on behalf of the OC of the PS to record the name of the informant and to obtain signature of the person who gave the information over telephone as required u/s. 154(1) Cr P.C. Thus instant FIR does not hit by Section 162 of Cr PC.
[20] The prosecution case mainly rest on the evidence of PWs-1, 4, 2 and 3 are said to be the eye witnesses of the occurrence. On going through the evidence of Smt. Laxmi Das (PW-2), sister of the deceased Chandi Das and Dipti Malakar (PW3) it is revealed that on 13.01.2007 in the eve of "Makar Sankranti" a picnic was organized in their house. The picnic was continued about upto 3:30am. Thereafter Smt. Laxmi Das (PW-2) along with her sister Chandi and their tenant Dipti Malakar (PW-
3) were grinding rice in the kitchen of said Dipti Malakar. Smt. Laxmi Das (PW2) is claimed to be an eye witness of the incident. She deposed that at about 4 am she along with Dipti Malakar came out from the kitchen to answer their natural call and when they reached nearby "Takhurgarh" (building for worship) which was at a distance about 10/15 cubits from the said kitchen, they heard cry of Chandi. She immediately rushed to the kitchen and saw accused Uttam Sarkar, husband of her Page 9 of 12 sister Chandi to assault her sister Chandi with a dao. On seeing her, accused tried to attack upon her, but she managed to run away and called her father who was sleeping at that time at his dwelling hut. When she came back with her father Nani Gopal Das (PW-1). Her father on wakeup rushed to the place of occurrence and found Chandi was lying with bleeding injuries on her head and neck nearby oven. She was cross- examined by defence at length and no material has come out from her cross-examination and evidence was not shaken in any manner except that she did not state to I.O. about the time "4.00am" when they came out from kitchen to answer their natural call which is a minor contradiction. The rest of the cross-examination of the witness is simple denial by way of suggestion.
[21] PW-3 Dipti Malakar also deposed almost the same thing as stated by PW-2. She added in her deposition that when the occurrence was took place she heard sound of 'Ajan' and it was about to dawn and light was prevailing at that time. She further added in her deposition that on the date of incident at 8/8.30 pm. accused came to house of the informant and tried to enter into the room of Chandi but he could not entered as his daughter Eva raised alarm. Learned counsel pointed out that she did not state to IO that at the relevant time she heard Ajan and the light was prevailing and thus it was a development and exaggeration of what she had stated to the IO. The improvement version of PW-3 as pointed by the learned counsel does not materially affect the prosecution case. Even it is considered that the improve version was a false, the remaining evidence of the witness is fully corroborated to the evidence of PW-2. It is settled proposition of law that the evidence of a prosecution witness cannot be discarded in toto merely because a portion of the witness is an improvement or there is some exaggeration.
Page 10 of 12[22] Nani Gopal Das (PW1) has deposed that marriage of her daughter was given with accused Uttam Sarkar. Due to torture of accused upon her, she filed a case against him and had been living at his house with her children. While he corroborates the evidence of PW2 and PW3, he deposed before the court that on the faithful night on the eve of "Poush Sankrati" festival a picnic was organized at his house. At the end of picnic his daughter Smt. Laxmi Das (Pw2) and Chandi (deceased) along with their tenant Dipti Malakar (PW-3) were grinding rice in the kitchen of said Dipti Malakar(PW3). He deposed that on seeing the incident his daughter Laxmi Das called him to the place of occurrence and saw his daughter Chandi was lying with bleeding injury. He further deposed that accused Uttam Sarkar tried to assault Laxmi Das when she went to the kitchen on hearing the cry of the victim. Pw4 Smt. Gita Das is the mother of the victim is not a direct witness of the occurrence but came to the place of occurrence on being informed by her daughter PW-
2. She also more or less stated same thing as deposed by PW1. She found her daughter lying in injured condition in the kitchen of Dipti Malakar. She corroborated evidence of PW1, 2 and three. His evidence has corroborated the contents in the FIR lodged by him. The FIR is also duly proved by PW 5 who stated that the FIR was written by him as per version of PW1.
[23] In the case in hand the PW- 3 was along with PW- 2, sister of the deceased and they informed the incident to the father of the deceased. So, the conduct of PWs. 2 & 3 was quite natural. In this respect decision in Rami @ Rameshwar vs. State of MP is meaningful to refer here wherein, the Apex Court thus observed:
"7. PW-9 Ram Dulare (a passenger in the bus) in his evidence said that he saw the appellants attacking the deceased with chopper and knives. The trial Court pointed out that he did not inform the members of the Page 11 of 12 family of the deceased nor did he bring this matter to the notice of the police. The Sessions Judge regarded the above as a conduct incompatible with the normal behaviour of a person witnessing such a crime.
8. Such a remark on the conduct of a person who witnessed the murderous attack is least justified in the realm of appreciation of evidence. This Court has said time and again that the post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. We have not noticed anything which can be regarded as an abnormal conduct of PW-9 Ram Dulare."
[24] One more submission of the learned counsel for the accused was that the prosecution failed to establish the motive for committing the crime by the accused. In the light of the direct evidence of PWs. 2 and 3 read with the evidence of PWs-1, 4, 8 and 9, the motive part has no significance. Even otherwise there is enough material available on record in the present case that the motive for the present murder was the strain relationship in between the accused and the deceased.
[25] In view of the discussion made above, we find that PW-2 and 3 are credible witness and their evidence are believable that PW-2 saw accused Uttam Sarkar to assault with dao on the neck and head of deceased Chandi in the kitchen of PW-3 in the house of PW-1. From the evidence of PW-8, the medical officer, it reveals that the death of Chandi was due to shock and haemorrhage due to multiple injuries over neck. The above injuries were severe and serious inflicted by accused Uttam Sarkar with dao on the vital part of the body of Chandi. Thus it is proved that accused Uttam Sarkar inflicted those injuries with the knowledge that if a person inflicted blow with a sharp cutting instrument like "dao" on the head and neck of a person, then the act is likely to cause death of his wife victim Chandi. The prosecution has successfully established the case beyond reasonable doubt. Thus I find accused Uttam Sarkar is guilty Page 12 of 12 for the commission of offence punishable under Section 302 of the Indian Penal Code.
[26] In our ultimate analysis and having regard to the evidences on record, it is crystal clear that there is no reason as to why the continuity of the chain of evidences and the complaint made against the accused-appellant to be disbelieved. All the witnesses supported the entire case with regard to the commission of offence by the accused- person. Hence, the conviction and sentence as held by the learned Addl. Sessions Judge, in connection with case No.S.T. 182 of 2013 against the present appellant, stands affirmed. The judgments as cited by Mr. B. Deb, learned counsel appearing for the convict-appellant are not relevant to the facts and circumstances of the case.
[27] For the reasons stated above, we are of the opinion that there is no infirmity in the findings arrived at by the learned Addl. Sessions Judge while convicting and sentencing the accused-appellant. Accordingly, the judgment and order of conviction and sentence as declared by learned Addl. Sessions Judge stands affirmed and upheld and thus, the present appeal preferred by the convict-appellant is dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs forthwith.
JUDGE JUDGE A.Ghosh