Gauhati High Court
Faringa Chakma And Ors. vs State Of Tripura on 11 June, 1999
Equivalent citations: 2000CRILJ481
Author: H.K.K. Singh
Bench: H.K.K. Singh
JUDGMENT D.N. Choudhury, J.
1. This appeal is directed against the judgment and order passed by the learned Sessions Judge, South Tripura, Udaipur in Sessions Trial No. 10(S.T/A) of 1995 convicting all the 5 accused-appellants on the charge under Section 302 read with Section 34 of I.P.C. and sentencing them imprisonment for life. Hence the appeal.
2. According to the prosecution P.W. 6 Smti. Kamala Rani Chakma of Jharjhoria along with her husband Bijoy Chakma (since deceased) went to Chelagong for marketing on 25-10-93 and on their return home from market along with Prafulla Chakma, P.W. 2 the accused-persons came out from the jungle with lathi and attacked her husband. The informant had herself in the forest and saw the accused-persons assaulting her husband. My husband was begging for life which the accused-persons did not care. But no one came forward since it was very lonely place. When the accused-persons went away she started towards home and on the way she met her father-in-law Prafulla Chakma, Indraswar Chakma, Sailendra and other 2/ 3 persons. She saw her husband died with severe injuries. Police came to her house on receipt of the information and recorded her statement which was treated as F.I.R. The F.I.R. did not indicate the name of any of the accused-persons. On the other hand in the said information she stated that herself and Prafulla, P.W. 2 could not identify any of the accused-persons as it was already evening. She stated that all the persons belonged to Chakma community. Her statement was recorded by the Sub-Inspector Mr. Ashis Kumar Deb and police registered NTB P. S. Case No. 26(10)/93 against the accused-persons. On completion of investigation police charge sheeted the accused-persons and on committal the learned Sessions Judge charged all the 5 accused-persons under Section 302 read with Section 34 of I.P.C. During trial prosecution examined about 12 witnesses including that of the doctor P.W. 7 and the Investigating Officer, P.W. 11.
3. The entire case hinges on the testimony of P.W. 1, the wife of the deceased who accompanied althrough out with her husband at the time of occurrence. In her testimony in Court she deposed that several persons including 5 known persons came out from the side of the forest and began assaulting her husband with lathi and the butt of the guns. Her husband was begging from them for his life. One of the miscreants inflicted a knife injury on the throat area of her husband. Out of fear she could hide herself in the forest. But the miscreants did not show any mercy. Her husband fell down and when his voice was stopped she began running in the deep forest to save herself. She stated that she was so perturbed that her sari went off and she was with her petty coat and blouse. Prafulla who accompanied her reached her house and informed the inmates of our house. After getting the voice of her father-in-law from the spot who arrived there along with other members of family she came out from the nearby jungle and went to the spot. His face was disfigured. There were 5 persons. Accused-persons were identified in the dock. She stated that when the miscreants started assaulting her husband one of the miscreants pushed her but she could save herself and he was referring a Chakma. She reported the matter to the police verbally and police took down. Before the police reached their house where the deadbody was removed by us, Indrasur Chakma threatened her with dire consequences. She stated that after about 20 days she disclosed the name of the assailants to the Judicial Magistrate She stated further that due to the serious threat of Indrasur Chakma she did not disclose the name of the assailants to the police. The witness identified the seized articles like lungi, shirt, howai chappal, broken lathi which was seized by the police. In cross-examination she stated that there was no enmity of her husband with the miscreants. She also stated that she did not state either to the police or Magistrate about the existence of any enmity. When confronted by the accused about her statement on the day of occurrence she admitted that there was statement made by her to police. The accused-persons along with their family members fled away from out of locality when police arrived in their village. She also informed the incident to her father-in-law, mother-in-law and other members of her family. She disclosed to them the names of the miscreants, When confronted with her statement made before the police she stated that because of darkness she could not identify the miscreants. She stated that out of fear of Indrasur Chakma and due to his threat she did not disclose the names of the miscreants. She described about the size of the lathi. She stated that accused Faringa, Indrasur and Konaram came out from the right side of the jungle and Shankar and Bali came out from the left side of the jungle. All the miscreants shifted their houses from their village after this incident. At the time of deposing she was living with her father Mihir Karbari. The witness was cross-examined as to whether one person inflicted blow.
4. The doctor who conducted autopsy was examined as P.W. 7 who found the following injuries :--
1. Lecerated wound below the lower lip which opens into mouth with fracture of mandible (lower jaw) 2" obliquely by hard instrument.
2. Puncture wound on left side below the lateral angle of eye upto the bone. It was bone deep by instrument heavy pointed end.
3. Puncture wound on left side below the lateral angle of the mouth opens to inside of mouth by hard instrument having pointed end.
4. Multiple incised wound on left ear (pinna)
5. Incised wound on left sculp over temperal region 7" horizontally with fracture of skul bone at the side by heavy sharp cutting instrument.
6. There is haemorrhage inside the brain cavity. All the injuries are grievous in nature.
7. Four rounded contusion mark on front of chest.
5. Save and except her evidence, the prosecution did not bring any other evidence. The mother of the deceased was not examined. Examination of other witnesses on behalf of the prosecution, were made in a most casual manner. P.W. 1 was the father of the deceased who stated that his son along with his wife P.W. 6 and P.W. 2 Prafulla Chakma went to Chelagang market and Prafulla informed him that while they were returning Bijoy was assaulted. The witness stated that he did not disclosed the name of the miscreants. So, they (4/5) persons went to the spot and found his son Bijoy lying dead. He was assaulted by lathi. He was bleeding. Thereafter there was no examination from the prosecution side. PW. 2 who accompanied to deceased and the P.W. 6 also narrated the incident in a most cryptic manner. The examination in chief of that witness contains four sentences. The evidence of P.W. 3 Smti Indrakhala Chakma, P.W. 8 Madan Chakma, P.W. 9 Haripada Ghosh P.W. 10 Manik Noatia, P.W. 11 Maran Das were tendered by the prosecution for cross-examination. Interestingly, the learned Public Prosecutor did not examine them in chief.
6. P.W. 12 Shri Ashis Kr. Deb was examined by the prosecution who was the Investigating Officer of the case. The person who conducted the investigation on oath admitted that he completed two years of service. On the spot he started investigation of the case on the guidance of the O/C. The witness stated that he did not visit the actual place of occurrence on that night because it was dark night and there was tension. He tried for the accused persons on that night, but they were absconding. After returning to the P. S. the case was registered and formal endorsement for investigation of the case was made by the O/C. The witness stated in his cross-examination that from the statement recorded by him on 25-10-93 there was indication against Faringa Chakma in connection with the case. So, he raided the house in that night. To apprehend Faringa Chakma he also raided other houses, but he did not mention the owner of those houses. On 16-11-93 the complainant told him the names of the miscreants, as she stated that she did not disclose the names of the miscreants out of fear. She appeared in the Police Station alone. He did not ask her on which date of her fear of the accused persons was gone. He arranged for recording her statement under Section 164 of Cr. P.C. He sent her to Court after 2 days thereafter as she expressed her inconvenience to attend the Court by herself. The witness denied the suggestion that he influenced her to make a statement under Section 164, Cr. P.C. He went to Silachari P.H.C. to confirm if Shri Sankar Chakma went there for his treatment for the injuries which he received during the occurrence as indicated by the informant.
7. The learned trial Court after consideration of the evidence on record convicted and sentenced the accused persons as set out earlier.
8. Mr. M. Kar Bhowmik, the learned counsel for the appellants submitted that the prosecution failed to prove the case beyond reasonable doubt. The entire case of the prosecution hinged on the testimony of P. W. 6 who deliberately withheld the names of the accused persons for about 22 days pointed Mr. Kar Bhowmik the learned counsel. Mr. Kar Bhowmik referring to her conduct submitted that this part of testimony which she made before the Investigating Officer on 16-11-1993 did not inspire confidence. Mr. Kar Bhowmik further submitted that the said statement even did not find support or corroboration by her statement made under Section 164 of Cr. P.C. Mr. Kar Bhowmik further submitted that the night of occurrence was a dark night. The occurrence that took place on 25-10-93 was the Shyama Puja day. Pointing Almanac of that night Mr. Kar Bhowmik submitted that on that date sun set was at six second past five O'clock. The occurrence took place at 6.30 p.m. and that too a deep forest. It was not possible for the witness to identify the accused. Mr. Kar Bhowmik submitted that the prosecution deliberately withheld the alleged statement made under Section 164 of Cr. P.C. Mr. Kar Bhowmik further submitted that the accused was denied fair trial somuch so that the incriminating circumstance namely, the explanation to the effect that the circumstances of her identifying witnesses were not put to the accused persons which caused great failure of justice.
9. Mr. S. Das, the learned Public Prosecutor, on the other hand, fairly admitted that there was no doubt laches on the part of the prosecution; but he has referred to the facts scenario of Tripura, more particularly the area where the occurrence took place. Mr. Das, the learned P. P., submitted that since the witness PW 6 accompanied the deceased and saw the occurrence, she was the natural witness who could narrate the occurrence.
10. Upon hearing the learned counsel for the parties and after going through the evidence on record, we find that there is only one eye-witness and that the case rests on the testimony of PW 6. PW 6 accompanied the deceased all throughout and she was the lone person who witnessed the ghastly attack on her husband by the accused persons and after her husband collapsed, she ran to the forest because of fear that gripped her. The witness at the time of occurrence was in her teens and undoubtedly was gripped by a fear psychosis. None witnesses including near relations (PW 1, father) were paraded from the Jharjharia village and all of them maintained cold front and deliberately tried to keep the incident out in the cold. Facts speak for themselves. On those setting, only the PW 6, the most natural witness, the wife of the deceased, took the courage to narrate the facts. Naturally, her testimony cannot be discarded because of withholding the names of the accused persons for some time on those setting. The testimony of the witnesses including the witness who accompanied the deceased (PW 2), did not mutter more than three or four sentences in the Court in their depositions. The conduct of the prosecution is far from happy. The witnesses were tendered by the prosecution and naturally there was no requirement on the part of the accused persons to cross-examine. Even the statement recorded under Section 164, Cr. P.C. by the Court was not proved; nor any statement was sought to be .made by the prosecution as to why that was not proved. The case itself reflects a sad story of callousness of all those who are concerned with the administration of justice. The system can be kept alive with the confidence of the people.
We have also considered the contention that was raised by Mr. Kar Bhowmik, the learned counsel, regarding the possibility of witnessing the incident which allegedly took place at 6-30 p.m. that too in a deep forest. It was never in dispute that in the same visibility, the deceased was accompanying PWs. 2 and 6 from the market and under the same visibility, the assault also took place. Neither PW 6, the wife who accompanied the deceased, nor PW 2, Prafulla Chakma who also accompanied the deceased, were cross-examined on this crucial aspect of the matter. As a matter of fact, there was no evidence on this matter challenging the visibility which undoubtedly amounted to admission. In these circumstances, we do not find merit in the above contention of the learned counsel, Mr. Kar Bhowmik.
11. Be that as it may, Mr. Kar Bhowmik was right when he pointed out that the most crucial aspects of the matter like the factum of delay in not disclosing the names of the accused persons for about 22 days and other material aspects were not referred during examination of the accused under Section 313, Cr. P.C. which was far from happy. Needless to say that examination under Section 313, Cr. P.C. is a solemn task and responsibility conferred upon the trial Court, the real object behind the Statutory provision being to enable the accused to explain the circumstances appearing in the evidence against him so that the Court can ascertain the guilt of the accused. However, that by itself will not vitiate the trial. Cases are to be judged in its facts and situations. Improper examination under Section 313, Cr. P.C. by itself will not vitiate the trial unless prejudice is discernible which affected the fair trial of the case/accuseds Admittedly, in this case all the facts and the circumstances those were relied upon against the accused were disclosed in the evidence of PW 6. She in her evidence, stated as to why she did not disclose the names of the accused during those period. The witness has undergone a traumatic period and the threat of the accused was hovering upon her.
Under these circumstances, it cannot be held that non-reference to those circumstances in her cross-examination by PW 6 has seriously affected the trial. In the facts and circumstances of the case, the decision in Dhanu alias Dhananjoy Debnath v. State of Tripura, reported in 1999 Cri LJ 1231 cannot assist the appellant. The testimony of PW 1, the circumstances under which the accused and their family left the village itself after the occurrence, all these go to point to the guilt of the accused.
12. Mr. Kar Bhowmik has referred to a decision of the Supreme Court reported in AIR 1976 SC 2488 : 1976 Cri LJ 1985 (State of Orissa v. Brahmananda Nanda) in support of his contention that non-disclosure of evidence of a person claiming to be eye witness who did not disclose the name of the assailant for a day and a half after the incident and that the Supreme Court in the aforesaid case treated the non-disclosure of the name of the assailant immediately as a serious infirmity.
We have gone through the above decision of the Supreme Court which is distinguishable from the present case, more so, as in the case in hand, the explanation was given by the witness herself and not by any other agency. The witness was a rustic tribal woman in her teens and her testimony carries the ring of truth which are natural and coherent.
13. Under the circumstances, we do not find any merit in the appeal. Accordingly, the appeal is dismissed. Since the accused persons are on bail, theyshall surrender to serve out the remaining part of the sentence. The bail bonds of the accused/appellants stand cancelled.