Gauhati High Court
Shri Sushanta Sarma & Ors vs The State Of Agartala on 26 August, 2011
Author: P.K.Musahary
Bench: P.K.Musahary
IN THE GAUHATI HIGH COURT
( The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh)
CRL. APPEAL NO. 40 OF 2003
(AGARTALA BENCH)
1.Shri Sushanta Sarma ,
S/O Shri Chandra Kanta Sarma
of Coldharpur,P.S. Kailasahar,
District North Tripura.
2.Shri Dilip Dey,
Son of Pijush Kanti Roy,
Paitur Bazar, P.S. Kailasahar,
District North Tripura.
3.Shri Bidhan Chandra Sinha,
Son of Late Dharmaraj Sinha
of Coldharpur,P.S. Kailasahar,
District North Tripura.
4.Shri Gopal Bhowmik,
S/O Shri Nirmal Bhowmik,
Paitur Bazar,P.S.Kailashar,
District North Tripura.
5.Shri Jugal Sharma ,
Son of Late Nabadhip Sarma
of Bidyanagar,P.S. Kailasahar,
District North Tripura.
6.Shri Govinda Deb,
S/O Shri Senachand Deb
Of Paitur Bazar,P.S.Kailasahar,
District North Tripura.
Convict/appellants.
-Versus-
The State of Agartala Respondent.
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PRESENT THE HON'BLE MR. JUSTICE P.K.MUSAHARY For the appellants : Mr. A.C.Bhowmik,Sr. Advocate Mr. M.K.Roy, Advocate for appellant No.1.
Mr. P.K.Biswas & Mr. R.Debnath,Advocates
for appellants nos. 2 to 6
For the respondent : Mr. P.Bhattacharjee, Addl. P.P.
Date of hearing : 10.6.2011
Date of judgment : 26.08.2011.
JUDGMENT AND ORDER (CAV)
This appeal has been preferred U/S 374 Cr.P.C. against the judgment dated 3.6.2003 passed by the learned Additional Session Judge (FTC),North Tripura, Kailasahar in Case No. S.T.19(NT/K) of 1994 convicting the appellants U/s 304 Part II IPC read with Section 149 IPC and sentencing them to suffer R.I. for 5 years and also convicting the appellants U/S 148 IPC and sentencing them to suffer R.I. for 1 year.
2. The story narrated by the prosecution is that on 9.7.2001 at about 1330 Hrs. one S.I. of police namely, Shri Nandan Sarkar of Kailasahar Police Station lodged a written FIR with the Officer-in-Charge informing that on the said day at about 1015 Hrs, while he was on duty with other staff at Kailasahar motor stand, found a group of youths numbering about 30/40, shouting slogans "Chatra Aikya jindabad " and " Inclub jindabad " criticising the Govt. policy on supply of text books etc. and 3 alleged police attrocities on students at Agartala and Udaipur. The processionists were asking the shop keepers of Panichowki Bazar to shut down their shutters, stopping the vehicular traffic on road and also entering into the Govt. offices to stop normal functioning. The informant with his staff on duty persuaded the group to disperse but suddenly in front of ITI an altercation started between 2 groups of youths on the issue of shouting slogans in the name of "Chatra Aikya". When the youths refused to disperse, the informant along with other staff started chasing the warring groups to disperse and nab them. On being chased, both the groups dispersed but found one Shri Nikhil Debnath , son of Late Birendra Debnath of Panichowki Bazar , lying in front of a grossery shop of one Sri Puspa Sen at motor stand with severe bleeding injuries on his head and shifted him to Kailasahar District Hospital for treatment. The informant later on came to learn that one Susanta Malakar sustained injuries on his right hand and the Officer-in-Charge of the Police Station treated the said complaint as FIR and registered it as Kailasahar P.S. Case No. 9(7)/91 under Sections 148/149/448/506/326 IPC and the same was endorsed to Shri Sankar Bhowmik for investigation.
3. The police on completion of investigation submitted charge sheet against 6 accused persons U/S 148/149/447/506/323/302 IPC and as the case was exclusively triable by the court of Sessions, the same was committed to the court of learned Sessions Judge, North Tripoura and subsequently, the learned Sessions Judge, North Tripura, transferred the case to the court of learned Addl. Sessions Judge,(FTC) North Tripura, Kailasahar for trial. The charge was framed under Sections 148/149/302/323 IPC and read over and explained to the convict/ 4 appellants in Bengali to which they pleaded not guilty and claimed to stand trial.
4. The prosecution examined as many as 28 witnesses to establish the charge against the convict/ appellants.
5. On closure of evidence, of the prosecution witness , the convict/ appellants were examined U/S 313 Cr.P.C. on 24.1.2003 but they declined to adduce evidence in their defence. The learned trial court on consideration of documentary as well as oral evidence on record and also upon hearing the learned counsel for the parties, convicted and sentenced them as indicated earlier.
6. I have heard Mr. A.C.Bhowmik, learned Sr. counsel assisted by Mr.M.K.Roy, learned counsel for the convict/appellant No.1 and Mr. P.K.Biswas, learned counsel for the appellant Nos. 2 to 6 as well Mr. P.Bhattacharjee, learned Addl.P.P,Tripura appearing for the State- respondent.
7. Mr. Biswas, learned counsel appearing for the convict/appellant Nos. 2 to 6 assailed the conviction and sentence on the following grounds :-
(i) The FIR was lodged by a Sub-Inspector of police on 9.7.91 at about 1330 Hrs. against the unknown persons which was registered as Kailasahar P.S. Case No. 9(7)/91. There was another FIR/complaint lodged with the Officer-In-Charge on the same day at 6.30 P.M. by Smt. Sonaka Debnath, wife of Late Birendra 5 Debnath, a resident of Panichowki Bazar against 5 accused persons. But no case was registered on the basis of the said written complaint. The said written complaint was entered in G.D. bearing Entry No. 384 dated 9.7.91. The written complaint filed by Smti.
Sonaka Debnath was written by the Secretary of the CPI(M) party at CPI(M) office purportedly as reported/ stated by Smt. Sonaka Debnath, the mother of the deceased- Nikhil Debnath. The aforesaid written complaint of Smt. Sonaka Debnath , is fabricated and false as it was written at the party office by the Secretary of the CPI(M) party with an aim to implicate the convict/ appellants with vested political interest;
(ii) None of the prosecution witnesses disclosed the names of the convict/appellants during the investigation when they made statements U/S 313 Cr.P.C. before the investigating officer. The I.O. of the case is P.W-23. In his evidence before the court the said I.O.testified that none of the convict/appellants were implicated or named as accused persons. It was only some interested witnesses who have implicated the convict/appellants without any basis and as such, the charge against the convict/ appellants could not be established. P.Ws-1,4,7,8,9 and 16 during cross-
examination, were confronted that they made statements earlier before the I.O. and it was found 6 that those witnesses made the statements marked as Exts. D1,D2,D4,D5,D7,D8,D9,D10 and D11 and the I.O. P.W-23 , confirmed that the said witnesses made those statements to him during investigation and those statements have clearly shown that the witnesses specifically stated that they could not identify the assillants/attackers of deceased Nikhil Debnath and as such, the subsequent statement made after 2 ½ years cannot be accepted and acted upon for conviction of the accused/appellants ;
(iii) The prosecution projected P.W-16 Shri Biswarup Goswami as an eye witness who deposed that all the convict/appellants assaulted the deceased and gave several blows by dao, lathi, rod etc on 3 occasions causing serious injuries to his person but who held the post-mortem examination , found one stitch injury measuring 6" X ½ " brain deep and another abrasion injury which is quite contradictory to the statement made by the said so-called eye witness and completely belied the statement. The evidence of such so-called witness cannot be treated as a reliable and trustworthy for convicting the accused/ appellants. Nikhil Debnath, who received injuries on his person died on 12.8.91 i.e. after 25 days from the date of occurrence. The I.O.P.W-23 in his deposition stated that on 22.7.91 he went to G.B.Hospital and 7 recorded the statement of deceased Nikhil Debnath. But at the time of recording the statement, the victim Nikhil Debnath did not disclose the names of the miscreants . Interestingly, the prosecution declared the said I.O. as hostile witness. Nikhil Debnath, as per evidence of P.W-25, Dr. Kisalay Choudhury, who treated him in the G.B.Hospital stated that Nikhil Debnath was conscious on 22.7.1991 and his statement was recorded by the police. This evidence proves the innocence of the convict/appellants;
(iv) At a certain stage , after investigation, Shri B.K. Bhattacharjee P.W-20 submitted F/R but the Superintendent of Police ,North Tripura ordered re- investigation after a long period. Accordingly, the I.O. Sri Arun Debnath P.W-24 on 11.1.94 re-examined some witnesses. Such re-examination was done by the prosecution as an act of aftertaught with intention to somehow implicate the convict/ appellants in the case;
(v) The evidence on record does not disclose any offence, not to speak of establishing the charge, U/S 304 Part II IPC read with Section 149 IPC or U/S 148 IPC against the convict/appellants and as such, the impugned conviction and sentence is liable to be set aside acquitting them of the said charges.
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8. Mr. A.C.Bhowmik, learned Sr. counsel appearing for the convict/appellant No. 1 fully endorses the arguments put forward by Mr. P.K.Biswas, learned counsel for the convict/appellant Nos.2 to 6.
9. P.W-22 Shri Nandan Sarkar is the informant. As S.I.of police he was detailed on law and order duty on 9.7.91 at the Kailasahar motor stand since morning. While he was on duty at 1015 Hrs. he along with his staff found 30/40 persons proceeding towards Panichowki Bazar shouting some slogans and asking the shop keepers to shutdown their shutters in respect of their demands. There was another group opposing the said processionists. Both the groups started dispersing in different directions. A group of 10/12 boys was chased by another group along with the road leading to Gobindapur. This P.W stated that apprehending breach of peace he followed them and entered into a house . But the boys who tried to take shelter in that house again left the house. He then returned to motor stand near the Tri-junction and found one person lying with injuries near a foreign liquor shop. He came to know that it was Nikhil Debnath. He categorically stated that in the meantime, CRPF personnel and other policemen had arrived there and the injured Nikhil Debnath was shifted in a vehicle to hospital by some policemen who came from the police station. He proved the FIR lodged by him. He has not mentioned anybody's name in the FIR .The said police officer, may be, did not know or could not identify the persons or leaders of the group. Veracity of the statement in the FIR and his deposition on the narration of incident cannot be doubted. If the FIR is read with the deposition, one fails to find out any discrepancy or contradiction in the statement of P.W-22. The 9 defence has not suggested this witness that he was not present or was not on law and order duty in the area or the place where a group of persons proceeded in procession and the other group opposed the processionists. This witness could be an eye witness to the situation that was prevailing in the said area at the relevant point of time and , as such, the FIR lodged by him is the first hand account of the entire incident of group clash. Such first hand account in the form of a written ejahar is to be given due weightage. The FIR lodged by the P.W-22 is the real first information report which was reported by a police officer on duty who had everything fresh in his mind.
10. P.W-1 Smt. Sonaka Debnath, mother of the deceased also filed a written complaint which was scribed by one Gopesh Debnath, P.W-13, Secretary of the CPI(M) party in the said party office. According to her deposition she went to CPI(M) party office,Kailasahar and narrated the incident to said Gopesh Debnath who wrote the FIR as per her dictation which was read over and explained and on which she put her signature. Then she went to Kailasahar police station and filed the said FIR at "Dusk". She proved the ejahar and her signature thereon. This FIR was filed by P.W-1 much after the FIR filed by Nandan Sarkar,P.W-22.No case was registered on the basis of the same and it was entered in the G.D. only . By the time the second FIR was received from P.W-1, the investigation was started and the deceased who was found at the injured state was already removed to hospital. No fault could be found with the investigating agency in proceeding with investigation based on the FIR received from P.W-22 earlier in time than the one received from P.W-1. 10
11. From the manner in which the mother of the deceased rushed to the party office of the CPI(M) to consult the matter with the party Secretary and got the complaint written by the said party Secretary clearly reveals the political party affiliation of P.W-1 and her deceased son who, if not a leader of the procession, was at least an activist member of the CPI(M) party. There is no difficulty in holding that the Bandh was called on 9.7.91 by the supporters of the SFI, students wing of the CPI(M) and the same was resisted by the rival group namely, NSUI,students wing of the Indian National Congress. However,there is no difficulty in holding that there was a clash between two groups and on the arrival of the police party, the members of the groups dispersed. The trouble was created due to political rivalry between the 2 groups. By filing the FIR through P.W-1,the CPI(M) party came to the centre stage in a calculated manner and it adduced some interested witnesses to bring home the charge against the convict/appellants.
12. As per the evidence of P.W-23, Shri Shankar Bhowmik ( I.O.) the fact of receipt of written complaint from Smti Sonaka Debnath, P.W-1 was recorded in the G.D. but the prosecution did not produce the said G.D.Entry to prove the fact of filing of such written complaint and thereby the defence has been deprived of a chance of having a look at it and to test the veracity of the same by cross-examining the prosecution witness concerned . No explanation was forthcoming from the prosecution for withholding the said G.D.. The I.O, P.W-23 in his evidence stated that Ext. P/1 is the said complaint received from P.W-1 but he did not consider it as a specific case was registered and the investigation started already. 11
13. The prosecution also produced and proved a written complaint signed and filed by P.W-1 Smt. Sonaka Debnath , (mother of the deceased) before the court of Judicial Magistrate,Kailasahar naming the convict/ appellants as accused persons. In the said complaint , 4 persons have been cited as witnesses. It may be noted that the said written complaint before the Judicial Magistrate was filed on 31.7.91 i.e. after 22 days from the date of occurrence on 9.7.91. The said complaint was proved and marked as Ext. P 5 . P.W-1 stated in her evidence that she filed the complaint before the Magistrate as the case has not properly investigated by police. The family members or other concerned with the said incident may approach the Judicial Magistrate or any authority demanding justice and such action cannot be questioned but the court has to consider as to why the said complaint was filed after a delay of 22 days which should have been filed in normal course at the earliest after the alleged occurrence. The defence has to say that such delayed complaint was lodged before the Judicial Magistrate to improve the prosecution case against the convict/appellants. The defence has been maintaining that none of the prosecution witnesses examined by the I.O. during investigation named/implicated the convict/appellants as accused persons and there is no material against them to frame charge under Sections 148/149/302/323/304 Part II IPC. The defence counsel confronted the witnesses concerned with their statements recorded U/S 161 Cr.P.C. If it is found that the witnesses concerned did not implicate the convict/appellants in their statement before I.O, the allegation of defence that the prosecution has improved its case by way of filing the 12 subsequent complaint petition before the Judicial Magistrate would stand substantiated.
14. In the Ext. P 5, complaint petition before the Judicial Magistrate, 4 persons namely, Sri Manik Mitra, Biswarup Goswami,Himanshu Roy and Dhirendra Malakar were cited as witnesses. The statements of Himanshu Ranjan Roy (PW 8) and Biswarup Goswami (PW 16) recorded U/S 161 Cr.P.C. have been proved and marked as Ext. D 6 and D 11 respectively. There is a supplementary statement of Himanshu Ranjan Roy recorded U/S 161 Cr.P.C. which was proved and marked as Ext. D 5. On perusal of the aforesaid statements, I find that the aforesaid witnesses have not mentioned / implicated the convict/appellants. Besides the statements of the above witnesses, defence has brought on record the statement of Smt. Sonaka Debnath, the informant and mother of the deceased, Shri Puspa Sen and Shri Susanta Malakar recorded U/S 161 Cr.P.C, which were proved and marked as Exts. D1, D2 and D 3 respectively. On going through the said statements, I find that the said witnesses have not implicated any of the convict/ appellants. The said witnesses , for the first time, during trial made statements implicating the convict/appellants. Moreover, while the deceased was under treatment in hospital, as per the evidence of the Medical Officer P.W-25, he was found in a conscious state and the I.O. P.W-23 recorded the statement of the deceased during investigation. There is no evidence from the I.O. concerned ( P.W-23) to the effect that the deceased ever told him that he could identify the perpetrators or he ever named the appellants.
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15. The star witness in this case is shri Biswarup Goswami, P.W-16. He claims himself to be an eye witness to the incident of assault on deceased Nikhil Debnath.This witness in the opening sentence of his deposition stated that he was an active worker of CPI(M) party and he was the General Secretary of the SFI of Kailasahar Division in the year 1991. He was a participant in the procession consisting of about 60/70 students. He stated in his examination-in-chief, that when the procession reached near the Kailasahar-Gobindapur road he met S.I.Shri Nandan Sarkar and talked to him. He saw the FIR named accused persons being armed with lathi, Ramdao, iron rod etc. proceeding towards the procession. He deposed that "Deceased Nikhil Debnath at the time was standing in the western side by the side of the road at a distance about 15/20 cubits away from me and S.I. N.Sarkar and I saw that all the accused persons attacked him (Nikhil) and they were assaulting him. By getting such assault, Nikhil ran torawds the shop of Puspa Sen and after reaching in the veranda of his shop, he fell down on the ground . But all the accused persons chased him up to the verandah of Puspa Sen and again started assaulting him. The incident took place in a twinkle of an eye. In the meantime, I saw that one person gave a dao blow in the hand of one Susanta Malakar who was in our procession. I was telling S.I. Nandan Babu to see the matter as I became perplexed on seeing all the incidents. Nandan Babu on seeing these proceeded towards west , but in the meantime, some persons of accused/persons chased me and seeing it I flee away towards Gobindapur road to save my life." From the aforesaid statements of P.W- 16, it is clear that deceased Nikhil Debnath was not a participant in the procession. This P.W. has not stated whether the deceased was a member 14 of the CPI(M) party or its sister organization SFI . The deceased was a bystander only who was standing by the side of the road just about 15/20 cubits away from the processionists. Nothing has been stated by P.W-16 that the bystander Nikhil Debnath provoked the anti processionists in any manner so as to chase, attack and assault him. It is beyond anybody's comprehension why the members of anti-procession group, without attacking any of the processionists would target a bystander like Nikhil Debnath. At the moment when the accused persons allegedly attacked and assaulted Nikhil Debnath, there was no physical clash between the pro and anti processionists. The statement of P.W-16 would have been acceptable/ believable , if the deceased Nikhil Debnath was a member of the CPI(M) party or SFI.
16. Shri Puspa Sen (P.W-4) , in front of whose shop the deceased fell down and was assaulted , is not an eye witness. He arrived at his shop after the occurrence and he came to know from other shop owners of his adjacent shop. His is, therefore, a hearsay evidence only..
17. Manik Das, one of the shopkeepers , was examined as P.W-5. He is the Salesman of IMFL shop owned by one Manju Das. He was present in the liquor shop at the relevant point of time. According to his deposition Nikhil Debnath rushed to the verandah of Puspa Sen's shop ( P.W-4) where he fell down with cut bleeding injuries. He clearly stated that he did not notice by whom and how Nikhil Debnath sustained injuries and fell down there. On seeing his condition, this witness closed his shop . He does not know what happened subsequently. He however came to know that 15 Nikhil Debnath was taken to Kailasahar hospital and later on succumbed to his injuries at G.B.Hospital, Agartala. He clearly stated that he did not notice by whom and how Nikhil Debnath sustained injuries. He also did not notice by whom the deceased was assaulted. The prosecution case was not supported by this witness and so he was declared hostile on the prayer made by the Public Prosecutor.In cross- examination by defence, this witness clearly said that during procession he did not see accused persons near the Shoba hotel or near the shop of Puspa Sen.
18. P.W.- 6, Shri Babul Ghosh is the owner of Sobha Hotel at motor stand, Kailasahar. He deposed that while he was in hotel suddenly he saw in the main road infront of his hotel some people were running hither and thither and on seeing it he closed the door of the hotel. He opened the door of the hotel after 1 ½ hours . This witness also did not notice and cannot say who were the attackers on Nikhil Debnath. He however stated that he knew the shop of the deceased Nikhil Debnath which was contiguous to the shops of the western side . From the evidence of P.W-6 it is found that the deceased owned a shop in the locality where the occurrence took place.
19. P.W-8 Shri Himanshu Roy @ Sena Roy had shoe business in the said locality where the alleged occurrence took place. He, as per his deposition , was proceeding towards his house and while he reached near Gauranga Mistana Bhandar in the main road at motor stand, Kailasahar, found a procession consisting of 70/80 members coming from the side of ITI towards motor stand by raising slogans . On seeing the procession he 16 stopped and saw that the students were running hither and thither and also saw some people attacking Nikhil Debnath with dao,lathi ,iron rod etc. in front of Puspa Sen's shop. Amongst those attackers , he could identify the accused Sri Susanta Sarma, Sri Gopal Sarma, Sri Bidhan Singh, Sri Gobinda Deb, Sri Gopal Bhowmik and Sri Dilip Deb. He however stated that after seeing the incident of assault on Nikhil Debnath all the shops at motor stand were closed and the people were fleeing away out of fear. He then called a rickshaw and with the help of Tusar Das @ Swapan Das boarded Nikhil Debnath in the rickshaw and took him to Kailasahar hospital. He found injuries on ear, face and head of Nikhil Debnath. He also found one tooth in upper jaw of Nikhil Debnath broken. He found Nikhil Debnath was in a senseless state and he was unable to speak. The injured Nikhil was taken into emergency room of the hospital and then the Doctor started treating him. The statement of P.W-8 in regard to shifting of injured Nikhil Debnath in a rickshaw with the help of Tusar @ swapan Das is not corroborated by P.W-22,Shri Nandan Sarkar, S.I. of police, who was on law and order duty on the relevant date and time of occurrence. His presence during the procession has been testified by P.W-16, Shri Biswarup Goswami.
20. P.W-22, Shri Nandan Sarkar, S.I. of police, deposed that Nikhil Debnath was shifted in a vehicle to the hospital by his colleagues who came from the police station. The evidence of P.W-8 regarding shifting of the injured person in a rickshaw is not believable because the situation at that moment was too tense to get a rickshaw on call on the road. In such a situation, no rickshaw puller would dare to come out and pick up the 17 injured persons. As per evidence , all shops were closed by that time and no one can expect that any rickshaw would be available. Moreover, the police official P.W-22, has claimed that Nikhil Debnath was shifted in a vehicle by police personnel. This evidence of P.W-22 is believable under the aforesaid circumstances. Moreover, from the cross-examination of P.W-22, it does not transpire that prosecution had any doubt on shifting of the injured persons Nikhil Debnath by police in a vehicle to hospital. This raises a serious doubt on the very presence of P.W-8 at the place of occurrence and his claim of removing the injured Nikhil Debnath to hospital with the help of Tusar @ Swapan Das. The prosecution failed to prove the presence of P.W-8 at the place of occurrence and shifting of the injured to hospital in a rickshaw .If the very presence of P.W-8 at the place of occurrence is not proved by the prosecution, the claim of P.W-8 that he witnessed the incident with his own eyes and could identify the convict/appellants at the place of occurrence cannot be accepted. Around the place of occurrence, as per the evidence , there are various shops and while the procession was going on shops were closed . At the same time when there was tension due to raising slogans and counter slogans from both the groups, it was also quite natural that some shop owners/keepers out of curiosity tried to witness the incident through some means and they could have seen P.W-8 at the place of occurrence from where he claimed to have shifted the injured with the help of Tusar Das @ Swapan Das .
21. P.W-23 Sri Sankar Bhowmik is the I.O.of the case In his deposition he clearly stated that on 15.7.91 he recorded the statement of Sri 18 Himanshu Ranjan Roy @ Sena Roy (P.W-8) and Sri Biswarup Goswami (P.W-16) at 1800 Hrs. at the police station. As stated earlier, the aforesaid statements of these 2 witnesses U/S 161 Cr.P.C. have been proved and marked as Ext. D4, D5, D6 and D11. In the said statements they have not named the convict/appellants in this case. It is already noted that Shri Biswarup Goswami (P.W-16) is an active worker of CPI(M) party. P.W-8 Himanshu Roy @ Sena Roy stated that he is not an active member of the CPI(M) party nor a supporter of the said party. It is also to be noted that as per the evidence of P.W-22 , Sri Arjun Deb Barma, he took over Case Diary of the case as per order of the S.P, North Tripura for re- investigation. As per his evidence , the S.P,North Tripura was not satisfied with the investigation done by the earlier Investigating Officers Shri Sankar Bhowmik( P.W-23) and Shri Bimal Kanti Bhattacharjee (P.W-20) for which re-investigation was ordered. Accordingly, he re-examined the witnesses namely Shri Nepal Chandra Debnath, Smt. Krishna Debnath on 24.12.03 and recorded their statements under Section 161 Cr.P.C.He further stated that on 1.11.94 he re-examined Shri Biswarup Goswami and Himanshu Roy @ Sena Roy and recorded their statements U/S 161 Cr.P.C. On 18.1.94 he also re-examined some other witnesses namely Shri Tusar Das,Shri Ashim Dey and Shri Susanta Malakar and recorded their statement U/S 161 Cr.P.C. In cross-examination this witness clearly stated that P.W-8 Himanshu Roy did not state before him that injured Nikhil Debnath being assaulted by the miscreants ,fell down on the veranda near Puspa Sen's shop with bleeding injuries. He also confirmed in cross- examination that Exhibits D 4 and D 5 were the statements of Himanshu 19 Roy while Exhibit D7 and D 8 were the statements of Tusar Das @ Swapan Das (P.W-9).
22. An important aspect of the matter has been found from the evidence of P.W-16. He deposed that in the month of February the Congress/TUJS qualition Government came into power in Tripura. The alleged incident took place during the Congress/TUJS rule in the State. The CPI(M) led left front came into power in the State in April,1993. The re-examination was ordered after the left front party came into power. As per deposition of P.W-24 he started re-examination of witnesses on 15.9.93. He also re- examined the witnesses namely, Sri Biswarup Goswami,Shri Himanshu Roy, Shri Tusar Das, Shri Ashim Dey, Shri Sibu Dey and Shri Susanta Malakar and recorded their statements U/S 161 Cr.P.C. The prosecution has been trying to justify re-investigation and re-examination of the witnesses by saying that the investigation conducted by the previous Investigating officers was not found satisfactory by the S.P,North Tripura. The re-examination was ordered in September, 1993 i.e. more than 2 years after the alleged incident. The said S.P, North Tripura was not examined by the prosecution to bring it on record that he was not satisfied with the investigation done by the earlier Investigating Officers Shri Sankar Bhowmik (P.W-23) and Shri Bimal Kanti Bhattacharjee (P.W-
20).No documentary evidence has been adduced by the prosecution to support the said reason for re-investigation. In absence of such proof, a doubt can be entertained that the order of re-investigation was politically motivated and prompted by the vested interest of the party in power. Legally speaking order of re-investigation after a lapse of 2 years cannot 20 be permitted unless the case has been returned in F/R and unless it is shown that the investigation was perfunctory or there is laches or negligence in conducting the investigation. The court has a duty to examine whether the re-investigation conducted by the prosecution just after the change of Government in the State is prompted by any malafide intention with vested political interest just to improve the case against some persons belonging to a particular rival political party.
23. The court is duty bound to examine on appreciate the evidence on record to find out whether the evidence of eye witness is reliable, trustworthy and inspiring the confidence of the court. The prosecution has projected P.Ws. 8 and 16 as eye witnesses and the learned court attached maximum importance to their evidence in recording the conviction and sentence against the convict/ appellants. The evidence of P.W-16 is that the convict/appellants numbering 6 or more being armed with lathi, dao, iron rods etc. attacked and assaulted Nikhil Debnath and on being assaulted Nikhil Debnath ran towards the shop of Puspa Sen and after reaching veranda of his shop the injured Nikhil Debnath fell down on the ground. The said armed convicts appellants chased him up to the verandah of Puspa Sen's shop and again started assaulting him. This evidence testifies that more than 6 persons assaulted Nikhil Debnath repeatedly and even when he fell down on the verandah of Puspa Sen's shop he was not spared. The evidence of P.W-16 on assault on Nikhil Debnath has been supported/corroborated by the evidence of P.W-8. If the evidence of P.W-8 and P.W-16 is to be believed, the deceased must have received multiple severe injuries inflicted by the sharp weapon like dao 21 and blunt weapons like lathi, iron rods etc.The reliability and trustworthiness of this ocular evidence should be supported by medical evidence.
24. The deceased was first taken to and admitted in the district hospital at Kailasahar. One Dr. P.K. Dutta ,P.W-21 attended him and prepared medical report, Ext. P-8, recording following injuries on the persons of deceased Nikhil Debnath :-
1. One incised wound size 1" X ½ "on rt. side of frontal and right parietal ;
2. One incised wound size 1 " X 1 " seen on rt. parietal bone bleeding through right ear with two other external injury seen.
As per said report no other external injury was seen. The said Medical Officer deposed that there was fresh bleeding from the right ear and the patient was in unconscious stage. He also stated that the injuries were caused by sharp weapons. As per the medical report Ext. P/8, no other external injury was seen. Another Medical Officer namely, Sri Bibhash Ranjan Paul Choudhury, P.W-19, of the said district hospital, who was the Chief Medical Officer, stated that he was present in the hospital and the patient was referred to him for medical opinion. He found the said injuries on the person of the deceased. According to his clinical diagonosis the patient had head injury with fracture based on skull and he referred the patient to G.B.Hospital at Agartala for further investigation and treatment . It may be noted that as per the evidence of Himangshu 22 Roy @ Sena Roy, the deceased Nikhil Debnath was attacked and assaulted by a group of persons with lathi, dao and iron roads etc. The said deceased was chased up to the verandah of Puspa Sen's shop where he fell down and even when he fell down he was assaulted by the attackers. This P.W- 8 claims that he saw the said incident with his own eyes. It is found quite unusual that Nikhil Debnath who was attacked and assaulted by several persons would receive only 2 incised injuries caused by sharp weapon with no other external injury. If the accused persons were carrying other weapons like lathi, iron rods etc. and if they really assaulted the victim from the point of chasing to his falling down, he should have received several injuries caused by blunt weapons. The medical evidence does not support the ocular evidence of P.W-8. Moreover, it may be noted that in his deposition P.W-8 did not mention who are the persons amongst the accused who carried sharp weapon like dao and the blunt weapons like lathi, iron rods etc. If he really saw the accused persons carrying the said weapons and witnessed them assaulting Nikhil Debnath, he could have named at least some of them. In my considered view the evidence of so-called eye witness ,P.W-8 is inconsistent with and contradictory to the medical evidence on record and his version on assault of Nikhil Debnath by the convict/ appellants by using sharp weapons like Dao and blunt weapons like lathi, iron rods etc. is not at all believable and trustworthy.
25. In Ram Swaroop Vs. State of Rajasthan , reported in ( 2004) 13 SCC 134 it has been held that if the evidence on assault and attack by the alleged eye witness is found inconsistent with medical evidence, the 23 conviction of accused cannot be sustained. The aforesaid principle of law is more applicable to the present convict/appellants considering the fact that P.W-8 and P.W-16 during investigation never stated before the I.O. that he saw the convict/appellants attacking or assaulting Nikhil Debnath by lathi ,dao, iron rods etc. The credibility of the statement made by P.W-8 and P.W-16 claiming themselves as eye witnesses to the incident for the first time before the learned trial court and that too after re-investigation allegedly at the instance of the S.P, North Tripura, cannot be accepted as a true and natural evidence and such evidence can be said to have been adduced as a measure of afterthought. In this regard I may refer to a decision rendered by the Apex Court in Radha Kumar Vs. State of Bihar, reported in ( 2005) 10 SCC 216 wherein it has been held that the statement made for the first time in Sessions court several months after the alleged occurrence by certain alleged eye witnesses, without there being any reasonable excuse for their not having named the accused persons before the police, cannot be given credibility and the evidence of such witnesses cannot be relied upon for conviction.
26. The case of State of Orissa Vs. Brahmananda as reported in AIR 1976 SC 2488 is worth referring to apply the law to the present case. It was a murder case where the eye witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was found unbelievable and it was, therefore, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness. The court can declare such an eye witness untrustworthy and the conviction of accused on the basis of evidence of such witness can be set aside. On comparative study, the 24 quality of evidence of eye witnesses in the present case is found worse and more untrustworthy. The similar view can be taken in respect of evidence of P.W-7 and P.W-11 who also tried to project themselves as eye witnesses to the incident of violence but did not disclose the name of the assailants before the I.O. during investigation and while their statements were recorded U/S 161 Cr.P.C. They also disclosed the names of the convict/ appellants for the first time before the learned trial court. The evidence of aforesaid witnesses P.W- 7 and P.W-11 can be put on the same category and discarded as untrustworthy.
27. The consequence of not naming the accused in the FIR and in the statement of the witnesses recorded U/S 161 Cr.P.C. has been discussed in Ranjit Singh and others Vs. State of Madhya Pradesh , reported in (2011) 4 SCC 336. It was a murder case and the accused was not named in the FIR. However some of the accused were named in the statement U/S 161 Cr.P.C. In the said case, the Apex Court held that in case the accused is named in the statement U/S 161 Cr.P.C. , at the earliest opportunity, omission to mention the name of the accused in the FIR cannot tilt balance in favour of the accused. In the instant appeal , admittedly the accused was not named in the FIR. The I.O. concerned while deposing before the court stated that he recorded the statement of witnesses including the eye witnesses but he denied that the witnesses disclosed the names of the accused persons at the time of recording their statements U/S 161 Cr.P.C. It has been discussed earlier and found that the prosecution re-investigated the case after a long gap of 2 years and 25 while the left front Government came into power, the prosecution tried to remove the omission and improve the case against the accused persons. The evidence on record amply proved that the prosecution witnesses never named the convict/ appellants in their statements before the I.O during investigation U/S 161 Cr.P.C. If the law laid down in the aforesaid case is to be applied , the omission in mentioning the name of the accused in the FIR as well as U/S 161 Cr.P.C. would tilt the balance in favour of the convict/appellants.
28. On appreciation of the entire evidence on record and on consideration of the submissions of the learned counsel for the parties and also on consideration of the law enunciated in the aforementioned cases, I am of the considered view that the prosecution has miserably failed to establish the charges against the convict/appellants beyond all reasonable doubts besides the inherent omission in naming the names of the accused in the FIR as well as in the statement U/S 161 Cr.P.C, moreso, when the evidence of the eye witnesses have been found untrustworthy.
29. For the aforesaid reasons, the impugned judgment as ordered by the learned trial court is liable to be set aside and quashed. It is accordingly, quashed and set aside. Appeal succeeds. The convict/appellants stand acquitted. It is stated at the bar that the convict/appellants are on bail and as such their bail bonds stand discharged.
30. Registry shall return the LCR forthwith.
JUDGE 26 ad