Tripura High Court
Sri Suman Nama vs The State Of Tripura on 3 May, 2019
Equivalent citations: AIRONLINE 2019 TRI 52, 2019 CRI LJ 3098
Bench: S. Talapatra, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) 33 of 2015
Sri Suman Nama
son of Sri Nimai Nama
resident of Sukantapalli
PO & PS Manu Bazar
District: South Tripura
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. PK Biswas, Sr. Adv.
Mr. P Majumdar, Adv.
For Respondent(s) : Mr. A Roy Barman, Addl. PP
Date of hearing : 04.04.2019.
Date of pronouncement : 03.05.2019
Fit for reporting : NO
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment and Order
Talapatra, J.
The appellant was charged under Section 302 of the IPC for committing murder of his wife and by the judgment dated 23.06.2015 delivered in case No. ST 46(ST/S) of 2014 by the Sessions Judge, South Tripura, Belonia he has been convicted for committing the said offence. The said judgment and the consequential order of sentence are under challenge in this appeal.
2. The first information report was lodged to the officer-in-charge of Manubazar P.S. by one Ratan Sarkar (PW11). That information was registered as Manubazar P.S. Case No. 86 of 2012 under Section 302/34 of the IPC. PW11, Ratan Sarkar has alleged that his niece namely, Reshmi Datta (Nama) was married to the appellant. In their wedlock, one Page 2 of 15 male child was born. On unlawful demand, his niece was subjected to physical and mental torture. His niece visited his house 7-8 days prior to her death. At that time, she had complained that in their rented house in every night she was subjected to torture, even the appellant had tried to strangulate her. After having the news of death, PW11 lodged the information.
3. After the said case was registered, investigation ensued and on completion of investigation, police report under Section 173(2) of the CrPC was filed but since the offence is exclusively triable by the Court of Sessions, the police papers were committed to the court of the Sessions Judge, South Tripura, Udaipur (as it then was) and after bifurcation of the judicial districts, the said case was transferred to the Court of Sessions Judge, South Tripura, Belonia.
4. Having taken the cognizance, the Sessions Judge framed the charge, as stated, under Section 302 of the IPC and the appellant pleaded innocence and claimed for trial. In order to bring home the guilt of the appellant, the prosecution, in all, examined 17 witnesses and introduced 4 documentary evidence including the postmortem report (Exbt.P3) and the inquest report (Exbt.P4). After the appellant was examined under Section 313 CrPC, to establish his specific plea of alibi, the appellant adduced one witness.
5. Having appreciated the evidence, the trial court has observed that the accused was found on the previous day of the incident as well as in the evening in his rented house by Page 3 of 15 the witnesses and he alone committed the offence of murder of his wife and none else.
6. According to the trial court, there is a chain of circumstances and from the circumstances it has been cogently established that the appellant committed the murder of his wife, the niece of the informant and hence the appellant has been convicted. Pursuant to the said conviction, the appellant has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- with default stipulation. It has been observed that the period of detention undergone by the appellant has been directed to be set off in terms of Section 428 CrPC.
7. Mr. PK Biswas, learned senior counsel assisted by Mr. P Majumdar, learned counsel appearing for the appellant has commenced his submissions by stating that the judgment of conviction is perverse as the plea of alibi, as established by the appellant, has not been appreciated. He has further submitted that there is no evidence against the appellant. Simply on the basis of conjecture, the said conviction has been returned.
8. Mr. Biswas, learned senior counsel has submitted that the prosecution's basic plank is that the appellant was "last seen" with the deceased. For that matter, Mr. Biswas has taken this Court to the principal witnesses, such as PWs 5 & 6. According to Mr. Biswas nobody has seen the appellant in the premises after the afternoon as he was elsewhere meaning in the house of DW1, Dulal Nama for worshipping goddess Kali. Page 4 of 15
9. Mr. Biswas, learned senior counsel has relied on a decision of the Apex court in State of Maharashtra vs. Ashok Chotelal Shukla reported in (1997) 11 SCC 26 where the Apex court has observed, inter alia, as under:
"22.The High Court believed that the conduct of the respondent was rather unnatural and unusual but it could not be regarded as an incriminating circumstance as the respondent must have been in confused state of mind in view of the circumstances in which he was placed and possibly because he must have thought that he would become the target of attack of his in-laws and be held responsible for Vibha's death. The High Court also held that the silence of the accused while answering certain questions put to him while he was examined under Section 313 of the Criminal Procedure Code was not indicative of his guilt as "it cannot be forgotten that prisoners in the dock mostly act on the advice they get from their lawyers" and again "our criminal jurisprudence does not require the accused to open his mouth even when he is completely innocent and no adverse inference can be drawn against him if he chooses not to speak."
10. Mr. Biswas, learned senior counsel having referred to the report of the examination of the appellant under Section 313 CrPC has contended that in reply to the question No.7 the appellant had categorically stated that the evidence of the prosecution is false and he was not present in the house. He had categorically stated that on that night the appellant was not present in that house. Even the appellant has stated that the statement of PW7 and PW8 is untrue.
11. Finally, Mr. Biswas, learned senior counsel has submitted that presence of the appellant at the time of the murder has not been proved and hence the appellant was entitled to the benefit.
12. From the other side, Mr. A Roy Barman, learned Addl. PP for the State has quite emphatically submitted that Page 5 of 15 PW 5, 6, 7 & 8 have asserted that the appellant was present in the said house. According to Mr. Roy Barman there is adequate evidence to hold the appellant guilty. He has further submitted that the appellant had laid a well executable design and as a part of that design he had shifted his son to his father's house and raised the plea of alibi to get himself out of the circle of suspicion but the circumstantial evidence has definitely established presence of the appellant in the place of occurrence at the relevant time.
13. For purpose of appreciation, the evidence as recorded in the trial may be surveyed in appropriate manner.
14. PW1, Biswajit Das, has given the narrative of the fractured relation between his sister-in-law and the appellant and he has categorically stated that his sister-in-law was strangulated to death at night in their rented house but he failed to disclose his source of information. PW1 has stated in trial that even from him, the appellant had tried to realize Rs.10,000/-. Further, he has stated that his sister-in-law was struck on the head and there was mark of strangulation which caused her death. In cross-examination, when he was suggested that the deceased had an extra marital relation and she was leading an adulterous life, the same was denied.
15. PW2, Sefali Datta is the mother of the deceased. She had also stated that her daughter was subjected to torture by the appellant regularly. The mother has denied the suggestion that her daughter used to consume liquor but she Page 6 of 15 could not state whether the appellant was there after the death of her daughter, or not.
16. PW3, Dr. Sanjoy Debbarma conducted post mortem examination of the deceased and from the said examination it was found that the decease had suffered head injury, trauma and swelling on the skull, bruises on the parital side of the skull. All the injuries were ante-mortem and the death was homicidal, according to PW3. He has identified the post mortem examination report (Exbt.P3). In the cross- examination his statement could not be dented.
17. PW4, Shyamal Ghosh is the scribe who wrote the first information report as per dictation of PW11.
18. PW5, Dipali Acharji is one important witness from the prosecution stock. PW5 has categorically stated in the trial that on 15.12.2012 Reshmi died. When the door was not opened at about 9 a.m. in the following morning, then PW5 and others opened the door and saw her dead body. Her husband, the appellant, was not found in the room. She has thereafter stated that, "Suman did not come. In the night Suman was seen but his child was kept in the father's house by Suman." In cross-examination, when the defence confronted her, she has further stated that, "Suman's friend used to visit even in his absence and used to take liquor. One relative of Suman frequently visited their house. His age was 27. Suman had taken his son on 14.12.2012 to keep him in his father's house. I saw Suman in the evening".
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19. PW6, Rahul Acharjee is the son of PW5. He has stated that Suman Nama was living in their house as tenant on 14.12.2012. On 15.12.2012 in the morning the door of the room of Suman was seen closed from outside. Out of fear they did not open the door but informed the parents of Suman. His father and mother came and opened the door and saw the dead body of Reshmi (niece of PW11) lying inside. The police was informed and they seized wine bottles, dao, two glasses and one perfume in presence of PW6 by preparing seizure list. He identified his signature on the said seizure list (Exbt.P2).
20. In the cross-examination, he has stated as follows:
"I went to Kali Puja pandal at 2 p.m. at noon. In the afternoon Suman taken his son in his father's house. I cannot say whether he returned home after that. One Suman Das used to visit their house. I do not know what they did inside the room."
21. PW7, Ajoy Tripura is another tenant of Pw5. PW7 has stated in the trial that he along with Jitendra Tripura (PW8) was living in the rented house. The appellant was living as tenant in the same house. On 14.12.2012 there was an orchestra organized for Kali Puja. He along with Jitendra attended the orchestra. The cottage of Suman was at a distance of 15 hands from their house. Till evening, he saw Suman. On the next morning, they saw his wife dead. Thereafter, he expressed his lack of knowledge but stated that Suman was found absent in the place of occurrence. In cross- examination, he has categorically stated that in the wake of afternoon, he had not seen Suman. They returned at 11 p.m. from Kalipuja.
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22. PW8, Jitendra Tripura has followed the same suit and stated that on 14.12.2012 till afternoon he saw Suman (the appellant). In the cross-examination, he has reiterated that after afternoon he had not seen Suman (the appellant).
23. PW9, Ranjit Chakma is the Constable of Police in whose presence, the police officer, namely, Dhrubajyoti Debbarma (PW16) seized two glasses, two wine bottles and one Dao on preparation of seizure list (Exbt.P2).
24. PW10, Krispin Sangma was the duty officer on 15.12.2012 at Manubazar Police Station. He got the information and entered the same in the police station diary. Thereafter, he informed the officer-in-charge of the police station. Dhrubajyoti Debbarma (PW16) was entrusted to go to the place of occurrence. He has stated nothing more.
25. PW11, Ratan Sarkar, as stated earlier, had informed the death of Reshmi to the police station by lodging the said first information report. He has also disclosed that one Shyamal wrote the FIR. In short, he has given the detail of demand and payment of money. He paid Rs.30,000/- in addition to Rs.1,00,000/- and that money was paid in the joint account of Reshmi and Suman. That amount of Rs.30,000/- was given to save Reshmi from torture of Suman. 7-8 days prior to her death, Reshmi came to his house and told him that if she would go back to her husband's house, she would be killed for money. On 15.12.2012 he got information from his nephew, Gautam Datta that Reshmi was murdered by throttling.
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26. In the cross-examination, he has admitted that he did not mention in the first information, the specific date of making payment to Suman or his wife Reshmi. He has admitted seizure of two wine bottles, glasses, etc. He denied the suggestion that Reshmi died due to taking huge liquor or the suggestion that Suman never tortured Reshmi.
27. PW12, Nilmohan Das did not reveal anything of material importance.
28. PW13, Shilpi Dutta has bluntly stated that the appellant has murdered Reshmi. Reshmi was her cousin sister. She used to know from Gautam Datta that Reshmi was facing serious difficulty in her matrimonial home. She visited the house of the appellant and saw the dead body of Reshmi lying on the cot. The neighbours, without naming them, she stated that they had informed her that the appellant murdered her sister in the night and left the house.
29. PW14, Gautam Datta is the cousin brother of the deceased. His statements are of no material value as whatever he has stated in examination-in-chief was never stated to the investigating officer and that has been admitted by him.
30. PW15, Karna Kr. Das has stated that the deceased was his sister-in-law. He has revealed very important fact, relevant for the purpose of searching the truth. In the trial, he has stated as under:
"I saw the dead body when I went there. It appears to me that she was throttled to cause her death. Her husband left the house after the death of Reshmi. Owner of the house told that they heard talk after 9 p.m. Orchestra party was organized near their house. Owner told of quarrel between husband and wife. Reshmi used to tell Page 10 of 15 me about the demand of money. Once I paid Rs.15,000/-. Cause of dispute was monetary problem."
31. In the cross-examination, the defence has proved that no such statement was available in the previous statement of PW15. Thus, that omission was admitted by the trial court, subject to confirmation by the Investigating Officer.
32. PW16, Dhrubajyoti Debbarma, has stated that after being entrusted with the investigation, he visited the place of occurrence, prepared the hand sketch map with index. He had seized one dao, glasses, wine bottles, perfume bottle by preparing seizure list (Exbt.P2), but he did not say whether those material objects were sent for forensic examination. However, he has stated that the dead body was sent for post mortem examination. He has also asserted in the trial the names of the witnesses, whose statements he had recorded in the course of investigation. But he, in the cross-examination, has stated that he had not seen any injury mark on the head of the deceased. Further, he has categorically stated that he has not sent the bottles to SFSL for expert opinion.
33. PW17, Firoz Miah, a Sub-Inspector of Police and the officer in charge of Manubazar Police Station has stated that he received the written complaint and registered case under Section 302/34 IPC and entrusted the investigation to PW16.
34. As stated, after the evidence of the prosecution was recorded, the appellant examined one witness, namely, Dulal Nama, DW1. He has stated as follows:
"Accused Suman Nama is my nephew (son of my younger sister). I knew the wife of Suman Nama Page 11 of 15 namely, Reshmi. Now Reshmi is no more. I performed kali puja at night in my house on 26th Agrahayana, 1319 BS and on that date Suman came to my house. On the following day Suman went back to his house and on 28th Agrahayana I again invited Suman along with other persons who worked for my kali puja for a feast. On 28th Agrahayana Suman came to my house in the afternoon. In the night of 28th Agrahayana Suman came to my house in the afternoon. In the night of 28th Agrahayana Suman stayed in my house and on the following day he was called by his house on the ground that his wife was ill. Thereafter, Suman went back to his house. Thereafter, I heard that Reshmi died."
In the cross-examination, DW1 stood by whatever he has stated in the examination in chief.
35. From the post mortem report, it appears that the report was not admitted by the doctor, Dr. Sanjay Debbarma (PW3). From the said report the following injuries were found on the person of the deceased.
"(i) Head injury, i.e. injury at scalp (posterior-
superior side) bruise in nature, abrasion marks with trauma swelling 3x3x1 inches.
(ii) Parts of Brain (or posterior, superior aspect) congested. Both lungs are congealed."
36. The cause of death has been recorded to be head injury (scalp) and suffocation. The forensic expert who conducted the postmortem examination has categorically stated that death was homicidal in nature but in the inquest report it has been recorded that on the person of the deceased there was no external injury. The inquest procedure was conducted by Dhrubajyoti Debbarma (PW16).
37. The inquest report and the post mortem examination report were coming in conflict but the prosecution did not make any attempt or endeavour to explain this dichotomy.
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38. From a scrutiny of the postmortem report, we do not find the approximate time of the death and that was not determined. Even the age of injuries has not been determined. Mr. Roy Barman, learned Addl. PP has specifically stated that presence of the appellant during that night at the rented house has been well established but this Court is constrained to observe that except PW5, Dipali Acharjee nobody has stated that the appellant was present in the rented house on the fateful night when Reshmi was killed. The appellant has taken a specific plea of alibi that on that night he was in the house of DW1. Though the appellant has not examined himself but during the examination under Section 313 CrPC he has categorically stated that he was not at the rented house on the date of occurrence.
39. Mr. Roy Barman, learned Addl. PP has emphatically submitted that in a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which may be borne in mind. The principle is that when incriminating circumstances is put to the accused and the accused either offers no explanation or offers an explanation which is found to be untrue then the same becomes an additional link in the chain of circumstances to make it complete.
40. We have no difficulty in appreciating the said principle but when the incriminating material such as presence of the appellant in the rented house on the night of occurrence was put, the appellant has categorically stated that he was not Page 13 of 15 in the rented house on that night. He did not stop there. He had adduced DW1, Dulal Nama to show that he was at his house.
42. Latin word "alibi" means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter- narrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his Page 14 of 15 presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of reasonable doubt. For that purpose, it would be a sound proposition that in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
43. Thus, if the prosecution has failed to prove the presence of the accused in the place of occurrence, the accused is not required to provide any plausible explanation in respect of his presence. But in this case, from the analysis of evidence, this Court finds that except PW5 nobody has stated that accused was seen at the house in the evening or on that night. What PW15 has stated that the owner of the rented house heard talking after 9 p.m. The said witness even did not say whose voices were heard or whether he had recognized the voice of the appellant. He has stated that the owner told that between the husband and wife there was quarrel. Such statement was not made by PW15 to the police officer.
44. However, that statement was not affirmed by the police officer, PW16. Whether on the basis of the testimony of PW5 the appellant can be held guilty or not? All other witnesses, PWs 6, 7 & 8 have stated that after the afternoon they did not see the appellant in the rented house. The said statement completely fits with the statement made by DW1. Even though DW1 is a relative witness but in the circumstances he cannot be disbelieved. As such, this Court is constrained to observe that the prosecution has failed to prove their case Page 15 of 15 beyond reasonable doubt and in the circumstances, this Court would not consider whether the plea of alibi can be accepted or not.
45. Accordingly, the impugned judgment and order of conviction and sentence are interfered with and set aside on benefit of doubt. The appellant be set at liberty forthwith, if not wanted in any other case.
46. In the result, this appeal stands allowed.
Send down the LCRs forthwith.
JUDGE JUDGE lodh