Tripura High Court
Sri Tapas Natta Alias Papai Natta vs The State Of Tripura on 18 March, 2020
Equivalent citations: AIRONLINE 2020 TRI 336
Author: A. Lodh
Bench: Akil Kureshi, Arindam Lodh
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THE HIGH COURT OF TRIPURA
AGARTALA
CRL. A(J) 14 OF 2017
Sri Tapas Natta alias Papai Natta
Son of Sri Dasharath Natta,
Resident of village- Tamsabari, Uttarpara,
P.S. Sonamura, District-Sepahijala,
Tripura.
....Appellant
- Vs -
The State of Tripura,
.
....Respondent BEFORE HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH For the appellant : Mr. P.K.Biswas, Sr. Advocate Mr. P. Majumder, Advocate.
For the respondents : Mr. Samrat Ghosh,
Additional Public Prosecutor.
Date of hearing : 11.03.2020
Date of delivery of : 18.03.2020
Judgment & Order
Whether fit for reporting : YES
JUDGMENT & ORDER
(A. Lodh, J.)
The challenge here is the judgment and order of
conviction and sentence dated 18.02.2017, passed by the learned Additional Sessions Judge, West Tripura Judicial District, Sonamura whereby the appellant was convicted for the offence under Section 302 of the Indian Penal Code, hereinafter referred to as 'IPC' and Page 2 of 41 sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/- with default stipulation.
2. The prosecution case against the appellant was launched on the basis of a complaint dated 14.05.2015 lodged to the Officer-In-Charge of Sonamura Police Sation revealing that the complainant namely Purnima Rani Natta Das (PW 1) had received an information from one Santimoy Sarkar (PW 26) that her daughter was killed and her body was set on fire in her husband's house. Said Santimoy Sarkar had received the said information from one unknown person. She lodged the complaint against the husband of her daughter namely Tapas Natta, father-in-law Dasharath Natta, mother-in-law, Manju Natta and sister-in-law, Laxmi Natta. In her complaint she stated that as per demand of the accused persons at the time of marriage they gave Rs.50,000/- cash, gold ornaments worth of Rs. 1,00,000/- and all types of furniture. Initially the marriage was happy and peaceful for about 4 to 5 months. Afterwards, the husband i.e. the appellant used to pressurize her daughter, Shipra Natta Das expressing his desire to marry again because he was involved in an illicit relationship with another girl. On 14.05.2015 her daughter was somehow killed and thereafter set her body on fire. A meeting was held at the house of her husband to resolve the disputes between the appellant and her daughter a few days before the said date of occurrence. It was also mentioned in the FIR that at the time of death her daughter was carrying 3 months pregnancy.
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3. Charge was framed against all the accused persons separately. The appellant was charged under Section 302 and 201 of IPC. Against Dasharath Natta Das and Smt. Manju Rani Natta, the learned trial Judge had framed charges under Sections 302 and 201 read with Section 109 of IPC.
4. After registration of the said complaint, the O.C., Sonamura Police Station endorsed the case to S.I. Tapas Malakar for investigation. On completion of investigation, the charge-sheet was submitted against the accused persons for facing trial. The police papers were committed to the jurisdictional Sessions Court and the learned Addl. Sessions Judge, Sonamura, West Tripura framed the charge as aforestated, to which the accused persons including the appellant pleaded not guilty and claimed to be tried.
5. In order to bring home the charges, as many as 33 witnesses including the complainant (PW 1) were examined. That apart, 32 documentary evidences including the postmortem report (Exbt.20 series and Exbt.21) were brought on record as evidence.
6. After the prosecution evidence was recorded, the accused persons including the appellant were separately examined under Section 313 of Cr.P.C. when they again raised the plea of innocence by stating that the incriminating materials as emerged in the trial are concocted and false. The learned trial Court after hearing the arguments of the parties convicted and sentenced the appellant as aforestated and acquitted the other accused persons since the charges leveled against them were not established. Page 4 of 41
7. Mr. P.K.Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellant contended that it was a clear case of suicide. The deceased i.e. the wife of the appellant on earlier occasions also had attempted to commit suicide. The story of developing illicit relationship of the appellant with another girl is the improved version of the prosecution witnesses. From the evidence of the prosecution witnesses it was further revealed that the wife of the appellant never disclosed to anyone about the appellant's illicit relationship with another girl. At the time of incident neither the appellant nor his father namely Dasharath Natta Das were at home. There was very cordial relation between the two families and even the grandfather, Haridas Natta Das (PW 5) of the deceased had stayed in the house of Dasharath Natta Das during celebration of some 'puja' which leads a strong presumption that there was good relation not only between the appellant and deceased wife but also between the two families. Drawing our attention to the deposition of the PW 7, Priyanka Natta Das, the younger sister of the deceased, the learned senior counsel contended that though she deposed in her evidence that her deceased sister disclosed the fact of illicit relation of her husband with another girl but she also did not disclose this fact to anyone including her parents. Learned senior counsel categorically contended that at the time of death of the deceased on 14.05.2015, Dasharath Natta Das was at Sabroom and the appellant Tapas Natta Das had rushed to his house after receipt of information about the incident. The postmortem report nowhere indicated that before death the deceased was subjected to Page 5 of 41 torture and the Doctor has clearly opined that the death was caused due to suffering of burn injuries to the extent of 84%. The learned senior counsel took us to the evidence of PW 3, Samitra Banerjee who has stated that in the meeting the issue of attempt to commit suicide by the deceased daughter of the complainant on the basis of her suspicion over the accused-appellant was discussed. The postmortem report does not show anything about the fact that the deceased was killed by way of pressing her mouth before her body was set on fire. Taking us to the report of Scientific Expert (SFSL) and the opinion therein, learned senior counsel contended that the observation of the PW 29 (Deputy Director, State Forensic Science Laboratory, Narsingarh, Tripura) that there was no sign of fire/deposition of soot particles outside the house. No damage of electrical connection and any of the household articles were found and no sign of movement of burning person was observed which would establish that it was a case of homicidal in nature.
8. On the other hand, Mr. S. Ghosh, learned Additional Public Prosecutor at the very outset contended that no woman would commit suicide when she carries a baby in her womb. Learned Addl. P.P. submitted that at the time of death the deceased was carrying three months old baby in her womb. Next, he submitted that the SFSL report clearly established that the deceased was killed first and then her body was set on fire. All the house hold articles including Sofa, curtains, and electric connections were found unburnt.
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According to learned Addl. P.P., the deceased must have moved here and there after setting her body on fire. The prosecution witnesses had unequivocally deposed that the appellant used to torture his wife with the sole intention to marry another girl to whom he developed illicit relation.
Learned Addl. P.P. had drawn our attention to the evidence of Dr. Prasenjit Das (PW 18) who conducted postmortem over the body of the deceased, while answering to some queries made by the Investigating Officer, S.I. Srikanta Charkaborty of Sonamura P.S. in regard to his further report (Exbt.21), clarified that the Doctor did not rule out the possibility of homicidal death of the deceased. The Doctor further clarified that there was possibility of homicidal dislocation of nasal at fronto nasal junction and all the injuries were found ante mortem in nature. According to him, the said report and deposition of PW 18 clearly established that the deceased was killed by suffocation at the first instance and then her body was set on fire by the appellant.
9. Now, to appreciate the challenge, let us revisit the evidence in a meaningful manner to ascertain whether the finding of conviction is based on legal evidence or not.
10. PW 1, Smt. Purnima Rani Natta Das, the mother of the deceased Shipra Natta Das in her deposition has reiterated what she narrated in the complaint lodged to the police station which we already have stated here-in-above that her daughter was murdered by the appellant along with other accused persons due to developing of an illicit relation between the appellant and another Page 7 of 41 girl. She identified her complaint and her signature on it which were marked as Exbt.1 and Exbt.1/1 on identification.
11. Her cross examination is found to be very important. Attention of the witness was drawn to her statement made before the Investigating Officer that her deceased daughter and her younger daughter Smt. Priyanka Natta Das disclosed to her at any point of time that the appellant had an illicit relationship with another girl. The said statement is found to be absent in her statement recorded under Section 161 Cr.P.C. In her cross examination her statement that there was a meeting held at about 10/12 days before the death of her daughter at the house of Dasharath Natta Das where the appellant made a commitment that he would not torture upon her daughter in future. Such statement was also found absent in her statement recorded under Section 161 of Cr.P.C. She admitted that she did not mention the nature of torture allegedly inflicted upon her daughter by the accused persons.
12. PW 2, Sri Nirmal Natta Das deposed that while he was proceeding towards his residence he found large gathering of local people and some police personnel in front of his elder brother's (Dasharath) house. Thereafter, he saw the dead body of the deceased who suffered burn injuries. At that time, his elder brother was not at home and he informed his elder brother Dasharath about the death of his daughter-in-law over telephone. At that time, the police officer asked him to put signature on a blank sheet Page 8 of 41 of paper and accordingly he put his signature which was marked as Exbt.2/1. He was declared hostile.
13. PW 3, Sri Samitra Banerjee deposed that on 14th day of May,2015 at about 4/4:30 pm, he rushed out from his house hearing the uttering of the words 'fire', 'fire' and as soon as he reached to the house of Dasharath Natta Das, he saw smoke coming out from the dwelling house of accused Tapas Natta. He found the door was open, ran into the room and found flame over the body of the victim who was lying on the floor adjacent to their cot and according to him the victim was alive at that time and was struggling with her burn injuries. He along with Fatema Bibi and Jagabandhu Natta brought out the dead body of Shipra Natta Das outside that room. Later on, Fire Servicemen and some police personnel arrived at the place of occurrence. At that time, PW 3 further deposed that one police officer prepared the inquest report over the dead body of the deceased Shipra Natta. He put his signature on the said inquest report, which was marked as Exbt.3/2 on identification. He also put his signature on the seizure list wherein the plastic bottle with handle with 4 liter of kerosene oil and a joint photograph of Tapas Natta and Shipra Natta were seized. In his examination-in-chief the said witness further deposed that -"the relationship between accused Tapas Natta and his wife was good". At that time he was declared hostile.
In his cross-examination he stated that about 10/12 days ahead of the alleged incident one meeting was called by accused Dasharath Natta in his residence in presence of guardians Page 9 of 41 and relatives of Shipra Natta with some other people where the said witness was present. He further stated that meeting was continued from 10:00 pm to 1:00 am night and in the said meeting it was informed to the guardians of Shipra Natta by accused Dasharath Natta and his family members that Shipra Natta had made attempt to commit suicide and that she had suspicion over accused Tapas Natta regarding his involvement with another girl. PW 3 further stated that in that meeting all guardians of Shipra Natta and the family members of accused Dasharath Natta asked Shipra Natta to restrain herself from making such attempt in future and all of them were satisfied with the replies given by Shipra Natta and her parents.
14. PW 4 is the witness of the inquest report who identified his signature as Exbt.3/3. He also put his signature in the seizure list which was marked as Exbt.4/2.
15. PW 5, Sri Haridas Natta Das, the grandfather of the deceased Shipra Natta Das deposed that on hearing the news of death of his granddaughter he along with other family members rushed to the house of Dasharath Natta by hiring a vehicle. He admitted that there was a meeting in the house of accused Dasharath Natta to settle up the conjugal disputes with accused Tapas Natta and his granddaughter. The meeting was continued from 10:00 pm to 1:00 am night over the illicit relationship which was allegedly going on between the appellant and another girl. He further deposed that they talked separately with Shipra Natta and Tapas Natta and the dispute was settled. He stated that it was his Page 10 of 41 strong presumption that accused Tapas Natta and others had killed his granddaughter Shipra Natta Das. He further deposed that 8/9 days earlier from the date of incident, he had visited the matrimonial home of his granddaughter with intention to take her granddaughter to their home at Khilpara, Udaipur for some days but the parents of the appellant did not allow him.
In cross-examination he denied the suggestion put forth by the defence that his son Uttam Natta Das and his another granddaughter also committed suicide by setting themselves on fire. The said witness also denied the suggestion put by the defence that his another granddaughter Priyanka Natta Das also made an attempt to commit suicide. In his cross-examination PW 5, however, admitted his visit and stay for two days in the house of granddaughter Shipra Natta Das on invitation to attend "Baishnab Seva" [a prayer to Chaitanya, believed to be an incarnation of God]. In his cross-examination he admitted that he did not tell to the I.O. that he had visited the house of the accused persons only with a view to take his granddaughter Shipra Natta Das to his home. He also admitted that at the time of recording of his statement under Section 161 of Cr.P.C. he did not state to the I.O. that the conjugal dispute between the appellant and his granddaughter had cropped up due to extramarital relationship of the appellant with another girl. He further admitted that neither he nor his family members ever verified the allegation of said extramarital relationship of the appellant. When his attention was drawn to one of his statements that one Malu Natta, the elder brother of accused Dasharath Natta disclosed in the meeting in Page 11 of 41 presence of others that he was well aware about the extramarital relationship of the appellant with another girl, such statement was not found. So, according to us it was an exaggerated and improved version of PW 5.
16. PW 6 is the witness of seizure (Exbt. M.O.2) of one Samsung mobile phone and joint photograph of the appellant along with his deceased wife.
17. PW 7, Smt. Priyanka Natta Das deposed at the same tune to those of PW 1 and PW 5. She categorically stated in her cross-examination that she did not disclose anything even after receipt of information about the death of her sister to any of the members of her family about the extramarital relationship between the appellant and another girl.
Her statement in respect of the fact that when her sister Shipra Natta Das tried to talk with her husband over telephone from their residence, Tapas Natta used slang language towards her elder sister and she was not allowed to talk with her husband, such statement was not found in her statement recorded under Section 161 of Cr.P.C. In her cross-examination the said witness further admitted that-"it is true that my grandfather Sri Hari Natta Das once again visited the house of the accused persons and stayed there for some days after the so-called meeting in the house of accused Dasharath Natta".
18. PW 8, Jagabandhu Natta Das was declared hostile. He stated that when he rushed to the house of his uncle he saw Samitra Banerjee one of their neighbours to pour water on the Page 12 of 41 body of Shipra Natta Das who was struggling on the floor with burn injuries. He himself took one bucket full of water and poured water on the body of Shipra. The said witness further deposed that he did not say anything more than what he deposed before the learned trial Court.
In his cross-examination by the prosecution, the said witness deposed that accused Tapas Natta and Dasharath Natta were not available in their residence when he rushed to the place of occurrence and Dasharath Natta went to Sabroom to attend one programme in the Radhamadhav temple and the appellant returned home after receipt of information about the alleged incident.
19. PW 9, Mst. Fatema Bibi and PW 10 were declared hostile.
20. PW 11, Sri Rabi Das, deposed that on being told by the police officer and his one colleague namely Sri Bishnu Pal that one accused person would confess his guilt in presence of the Magistrate and on the request of the said police officer they were present before the learned Magistrate. When being asked by the police officer, the appellant confessed in presence of him and others that he had killed his wife by pressing her nose and mouth by a pillow and subsequently the appellant set the body of his wife on fire. The defence raised objection. He put his signature in the said disclosure statement. He put his signature also in the seizure list where the pillow was seized.
In his cross-examination he stated that the pillow was found on the cot and it was not concealed. The said witness further Page 13 of 41 stated that he put his signature (Exbt.13/1 series) on the disclosure statement (Exbt. 13) at Sonamura police station. In his cross- examination he further stated that he did not tell to the Investigating Officer that accused Tapas Natta made one disclosure statement on 17.05.2015 at Sonamura P.S. in presence of one Magistrate or that the disclosure statement was recorded in presence of him and others or that the appellant made a demonstration about the place of occurrence and the scenery of the incident.
21. PW 12, Bishnu Pal is another witness who put his signature in the disclosure statement and deposed at the same tune of PW 11.
22. PW 13, Sri Rajkumar Sutradhar was not a witness to the commission of the offence. His evidence was related to the age of the appellant. PW 14 Mst. Mani Begam was declared hostile. PW 15 Sri Arjun Debnath is the Videographer who recorded the demonstration exhibited by the appellant at the time of making his disclosure statement. He has stated that he videographed the entire demonstration as demonstrated by the appellant. Later, the said witness handed over the CD cassette to the I.O. when that police officer seized the video cassette by preparing seizure list and obtained his signature on that seizure list (Exbt.17 and Exbt.17/1). The CD cassette of that demonstration was placed on record as Exbt.18.
23. PW 16, Smt. Anima Natta Das is the grandmother of the deceased Shipra who deposed that she could learn from her Page 14 of 41 family members and relatives that there were some conjugal disputes cropped up between her granddaughter Shipra and the appellant and a meeting was held raising some complaint against her granddaughter and in regard to the conjugal dispute. In her cross-examination she stated that they requested Shipra Natta Das to live a peaceful conjugal life with her husband.
24. PW 17 Smt. Anjana Das deposed that the appellant had a good conjugal life with his wife Shipra Natta Das and she never observed any dispute between Shipra and the appellant. After hearing hue and cry she entered into the house of the appellant and found the body of Shipra lying on the floor straight.
25. PW 18, Dr. Prasenjit Das who conducted postmortem examination over the dead body of Shipra. PW 19, Debashis Dutta is the Scribe who wrote the Ejahar as per version of PW 1. The Ejahar was marked as Exbt.1 and his signature was marked as Exbt.1/1. PW 20, Sita Pal is a constable who put her signature in the seizure list.
26. PW 21 Sri Pranjit Das who claimed to be one of the friends of the appellant deposed that on 14th day of May, 2015 in the morning the appellant wanted to meet him. Accordingly they met and on his request both of them went to the house of the elder sister of the appellant by motor cycle. They reached at 11/11-30 hours to the house of his elder sister and then they returned back at about 1-30 pm. The appellant and said witness went to a servicing centre of motor cycle wherein the appellant told him that he would like to go to his residence to attend his natural call and Page 15 of 41 for that purpose the appellant took his motor cycle and left the servicing centre at about 2:00/2:15 pm. After expiry of a considerable period of time, the appellant did not return back to the servicing centre and by that time his motor cycle was completely washed and due to that the said witness took the motor cycle of the appellant and went to the residence of the appellant to meet him and when he arrived at the residence of the appellant, his younger sister Smt. Laxmi Natta came to their entrance gate hearing his shouting and obstructed him to enter into their house and told him that her brother Tapas Natta had some problem. At the same time, the appellant came out and told him that he was suffering from abdominal pain and he was in urgent need of consultation with a medical officer and he gave him Rs.100/- for making payment to the service centre. Thereafter he delivered the motor cycle to Tapas Natta and thereafter he returned to the servicing centre.
27. PW 21 has further deposed that after soleminsation of marriage between the appellant and victim Shipra, once the appellant showed him one girl in a fair held at Radhamadhav Mandir complex, Sonamura and told him that earlier there was a negotiation of marriage of the appellant with that girl. Expressing of those facts he made a statement under Section 164(5) of Cr.P.C. before one Judicial Magistrate of Sonamura Court.
28. PW 22 Sri Nandu Das is a Motor Mechanic who serviced the motor cycle of the appellant and his statement was recorded under Section 164(5) of Cr.P.C. by the Magistrate concerned in Page 16 of 41 respect of the fact that on 14th May,2015, the appellant went to his garage for servicing his motor cycle.
29. PW 23, Sri Motaleb Kaji was working as a Mechanic under PW 22. His statement in respect of the fact that the appellant went to service his motor cycle on 14th May,2015.
30. PW 25, Mst. Rehana Begam was declared hostile. PW 26, Sri Shantimoy Sarkar is the neighbour of the informant (PW 1) who received the telephone call informing him that Shipra was killed in her matrimonial home by setting her on fire and he also rushed to the house of appellant along with the family members of the deceased Shipra. His statement that his son Surajit Sarkar informed him over telephone that the daughter of the informant was killed in her matrimonial home by setting her on fire are not found in his statement recorded under Section 161 Cr.P.C.
31. PW 27 is the Officer-In-charge of the Sonamura Police Station. In his examination in chief he stated that on 14.05.2015 at about 4:14 pm they received one telephonic information from Sonamura Fire Service Station to the effect that one fire incident was found to be occurred wherein one married woman sustained burn injuries. He entered this information in the G.D. entry book. Then and there he himself along with S.I. Tapas Malakar and other police personnel went to the place of occurrence and found the dead body of a woman on the ground of the courtyard of the appellant with burn injuries. At about 16-55 hours one Nirmal Chandra Natta of Sonamura submitted written information to him regarding commission of suicide by Shipra Natta. After receipt of Page 17 of 41 that written information he forthwith directed S.I. Tapas Malakar to undertake initiative for investigation on the allegation of unnatural death of Shipra Natta and put his signature under that note. He identified his signature on the said note which was marked as Exbt.2/2. Afterwards PW 1 had lodged a written FIR against the appellant and others. He registered the FIR.
In his cross-examination he stated that when he left the place of occurrence for Sonamura Police Station, S.I. Tapas Malakar was waiting at the place of occurrence and there was no complaint from any corner alleging murder of said Shipra Natta. He further stated that there was large gathering. The witness volunteered that he did not register any specific police case only on suspicion before completion of postmortem examination.
32. PW 28, Sri Rahaul Debnath is the Judicial Magistrate 2nd Class who recorded the statement of Sri Pranjit Das, Nandu Das and Motaleb Gaji under Section 164(5) of Cr.P.C. The statements of those persons were marked as Exbt.22, Exbt.23 and Exbt.24 respectively.
PW 28 in his cross-examination has stated that it is a fact -"that at the time of recording of the statement of witnesses, Sri Motaleb Gazi under Section 164(5) of Cr.P.C. the said witness did not tell him that accused Tapas Natta and his friend Pranjit had visited the workshop of Motaleb Gazi for servicing their motor cycle and that on the following day of the alleged incident, witness Sri Motaleb Gazi could learn the name of accused Tapas Natta." Page 18 of 41
33. We already have discussed above the deposition of Dr. Shubhankar Nath who deposed as PW 29. The Doctor opined that none of the articles of the room were found burnt except one corner of cot and one corner of sofa attached to bed. He further opined that the mosquito net and the clothes hanging from the bedstead were found to be burnt. He did not find any sign of movement of the burning person.
34. PW 30, Sri Suman Kumar Chakraborty was posted as a Director-cum-Assistant Chemical Examiner in SFSL who detected the kerosene oil marked as Exbt. G/2.
35. PW 31, Sri Maniklal Baidya was holding the post of Additional Sub Divisional Magistrate, Sonamura on 14th May, 2015 who conducted inquest over the dead body of Shipra Natta and prepared the inquest report which was typed in his office computer where he put his signature at its foot. The said report as a whole was marked as 27 on identification by the witness.
PW 31 further stated that on 17th May, 2015, the then SDM, Sonamura, Sepahijala District directed him to visit Sonamura Police Station and to record the disclosure statement of the appellant in connection with Sonamura P.S. Case No.2015 SNM 062 under Sections 302/201/34 of IPC. Accordingly, on the same day, he visited Sonamura Police Station and met with S.I. Tapas Malakar, the I.O. of the case and on his arrival at Sonamura P.S. the appellant was produced before him in the verandah of Sonamura Police Station for the purpose of making disclosure statement. There were other two persons namely Rabi Das and Page 19 of 41 Bishnu Pal. S.I. Tapas Malakar was also present at that place at the time of making disclosure statement by the accused-appellant. PW 31 further stated that accused Tapas Natta told him in presence of witnesses that about 10 months back he was supposed to marry one girl namely Priya Saha of Nagerjala, Agartala but that marriage was not finalized by the parents of the accused-apepllant since they had information that the biological mother of said Priya Saha was not alive. Subsequently, the marriage of accused was arranged with the victim. But the appellant was maintaining his telephonic conversation with the said girl regularly and on some occasions victim also had an opportunity to talk with the said girl over telephone. The appellant also told during his statement before PW 31 that after solemnization of marriage with the victim, his mother became seriously ill and she had to go outside Tripura for the purpose of treatment and during those days, accused and his family members discovered some unwanted articles (tabij) relating to exorcist activities and it was the presumption of the accused and his family members that the parents of victim had committed something wrong against the mother of the accused and they were solely responsible for the illness of the mother of accused. On the occasion of one 'Baishakhi Mela' the accused asked the girl to meet him at Sonamura and they jointly enjoyed 'Baishakhi Mela' at Tamasha Bari, Sonamura. PW 31 further stated that on 14th May, 2015 at about 2:00 pm when the accused returned to their home, he found his wife under deep sleep on their cot and then the accused suddenly took one pillow in his hands and pressed the whole face of Shipra Natta by that pillow and when the accused Page 20 of 41 was confirmed about the death of his wife he left their home and visited the house of his sister at Madhuban, Sonamura. After enjoying his meal at Madhuban at about 4:00 pm accused once again visited his residence at Tamshabari and decided to remove/conceal the evidence of murder. Thereafter the accused kept the dead body of his wife on the floor of their bed room and spread kerosene oil over the whole body of the victim and he set her on fire and left their residence once again. PW 31 further stated that accused further told him that on the same day when his family members informed him over telephone regarding death of his wife he once again rushed to his home and he also told him that in presence of witnesses that if he would be taken the place of occurrence at Tamashabari in that case he would make a demonstration to them as to how he had killed his wife. The said witness further stated that after completion of recording of the said disclosure statement by S.I. Tapas Malakar in presence of him and other witnesses, he gave one certificate at the last page of the said disclosure statement to the effect that the statement was recorded by S.I. Tapas Malakar, I.O. of the case in presence of him and independent witnesses and put his signature (Exbt. 13/3 upon identification) with official seal. He also put his signature on the other pages of the disclosure statement which was marked as Exbt. 13/4 series on identification. PW 31 further stated that entire episode of the disclosure statement was videographed with the professional Videographer. He further stated that they visited the place of occurrence at Tamshabari accompanied by accused where he demonstrated before them as to how he committed the murder Page 21 of 41 to his wife Shipra Natta. He further deposed that on the same day, S.I. Tapas Malakar (PW 32) seized the said pillow by preparing a seizure list in presence of him and other independent witnesses. After completion of seizure he gave one certificate at the foot of that seizure list where he put his signature marked as Exbt. 12/3. He also identified the seized pillow and confirmed Exbt. M.O.3.
In his cross-examination PW 31 stated that "it is a fact that the entire disclosure statement was recorded by the Investigating Officer, S.I.Tapas Malakar at Sonamura Police Station in presence of him and he also put his signatures with official seal on the disclosure statement." He further admitted that it was a fact that before recording of disclosure statement, the I.O. did not ask any question to the accused in presence of him and other independent witnesses whether the accused was going to make disclosure statement confessing his guilt without any threat, promise, physical torture, etc. or not. PW 31 in cross further admitted that before recording of disclosure statement the accused was not alerted that his confessional statement might be used as evidence against him at the time of trial and that accused was not legally bound to make any confessional statement before them. He also admitted that the seizure list did not reflect/disclose that pillow (Exbt. MO 3) was seized by the Investigating Officer in presence of him and other independent witnesses either as per identification by the accused or on production of the same pillow to the Investigating Officer by the accused. He further stated that it was a fact that he had no knowledge about the integrity of those so called independent witnesses.
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36. PW 32, S.I. Tapash Malakar was the Investigating Officer of the case. At about 16:40 hours on 14th May, 2015 the Duty Officer had received a telephonic information from Sonamura Fire Service Station to the effect that a fire incident had occurred at Tamshabari area and one woman was found dead at the place of occurrence. Then and there the said information was entered in the G.D. book and he along with the Officer-In-Charge of the P.S. rushed to the spot. After reaching to the spot they saw the dead body of a woman in the courtyard of Dasharath Natta with burn injuries and upon inquiry they could learn that it was the dead body of Shipra Natta, the wife of the accused. One Nilmani Natta at 16:45 hours submitted one written information to Inspector Narayan Ch. Saha introducing him as the uncle of the accused wherein it was stated that Shipra Natta committed suicide by setting herself on fire. They prepared the inquest report. He also sent requisition to the SDM, Sonamura for deputing one Executive Magistrate at the place of occurrence to record one inquest report over the dead body of the deceased. The said witness further stated that from the statements of the witnesses, it was established that the actual incident occurred inside the dwelling hut of the deceased but subsequently local people brought out the body of Shipra Natta from that dwelling hut and kept the body in the courtyard of Dasharath Natta to save her life. Thereafter, Sri Maniklal Baidya, Addl. SDM, Sonamura visited the place of occurrence and prepared the inquest over the dead body. Later on he arranged for postmortem examination of the dead body by preparing dead body challan (Exbt.29 as a whole). He visited the Page 23 of 41 place of occurrence once again and prepared the hand sketch of the place of occurrence along with a separate index (Exbt. 30, and Exbt. 31(i) & 31(ii) in two sheets). At about 8:45 pm he received a telephone call from Inspector, Narayan Chandra Saha who informed him that on that day at about 20:35 hours the informant had lodged one written FIR and on the basis of that FIR, Sonamura PS Case No. 2015 SNM 062 under Sections 302/201/34 of IPC was registered and the case was endorsed to him for investigation. One Haridhan Natta Das also met with him when he recorded his statement. At the same time he once again examined Sri Samitra Banerjee (PW 3) and recorded his statement under Section 161 of Cr.P.C. He further stated that since the statements of those witnesses indicated the involvement of the accused in the murder of his wife at 9:35 pm he arrested the accused. After his arrest two Samsung mobile phones with three SIM cards were recovered from him. Those were seized by preparing seizure list (Exbt.5). The seizure witnesses were also examined. PW 32 further stated that on 15th May, 2015 in the morning he thoroughly interrogated the accused at Sonamura Police Station. Thereafter he recorded the statements of other witnesses. The accused was in police custody for three days. He further stated that after completion of postmortem examination he seized the viscera of victim in different containers by preparing seizure list in presence of witnesses. The seizure list was brought on record and marked as Exbt. 31 and the signature of the witness was marked as Exbt.31/1. The accused was allowed to attend the funeral of his deceased wife. At about 10 pm PW 32 again interrogated the accused thoroughly when he Page 24 of 41 confessed his guilt to him and was also disclosed as to how he committed murder of his wife. The appellant was medically examined once again. PW 32 further stated that on the following morning he once again interrogated the accused when he made same statement to him confessing his guilt. He prepared the interrogation report in separate papers. On the same day he sent requisition to the SDM, Sonamura, Sepahijala District to depute one Executive Magistrate at Sonamura Station since the accused had expressed his willingness to make one disclosure statement. Accordingly, the accused appellant made the disclosure statement as aforestated.
PW 32 again stated that in course of investigation he met with one witness namely Sri Pranjit Das (PW 21) who expressed his willingness to give statement judicially. He also examined PW 22 Nandu Das and PW 23 Motaleb Gaji who also expressed their willingness to give statement judicially. On 22.05.2015 he collected postmortem examination report. On 23.05.2015 the statements of PWs 21, 22 and 23 were recorded under Section 164(5) of Cr.P.C.
In his cross examination PW 32 stated that before registration of FIR on the basis of complaint lodged by the informant (PW1) he had ample scope to examine some witnesses and also to talk with so many villagers at the place of occurrence but during that time he could not collect any incriminatory materials against the appellant so that he did not feel it necessary to lodge suo motu FIR against the accused persons. After perusal of Page 25 of 41 the extract copies of Sonamura PS GD No.753 dated 17.05.2015, it was found that the said entry was made at 13:30 hours and he admitted that it was a fact in the said G.D. entry it was mentioned that the disclosure statement of the accused was recorded and videographed at around 13:30/1:45 hours in presence of Addl. SDM, Sonamura. He also admitted that before recording of disclosure statement he gave no statutory warning to the accused regarding result of such confession or that whether the accused was going to make statement under any threat, promise or torture. He also admitted that he did not state anything to the accused that he was not legally bound to make any disclosure statement to him in presence of witnesses confessing his guilt. Suggestion was made to PW 32 that the accused had put his signature in the said disclosure statement under threat which PW 32 had denied.
PW 32 admitted in his cross-examination that "it is fact that from the disclosure statement of accused Tapas Natta it has not been disclosed that 1st first day of Baishakha, 1422 BS, accused Tapas Natta requested Smt. Priya Saha over telephone to visit Sonamura and to enjoy 'Bishakhi Mela' with accused Tapas Natta."
He admitted that on 7th May,2015 for the first time he recorded the interrogation statement of accused but before that though the accused was interrogated on 2/3 occasions but he did not record his statement in separate sheet of paper since accused did not disclose any fact to him regarding his involvement with the murder of his wife. He admitted that it was a fact that accused Tapas Natta was in his custody since his arrest on 14.05.2015. PW. Page 26 of 41 32 further admitted in cross that during interrogation on 17 th May, 2015 it was revealed that on the day of occurrence he had visited Charilam and the matrimonial home his sister at Madhuban, Sonamura. He admitted that after recording statement of witnesses under Section 161 of Cr.P.C., the Investigating Officer used to put the date and the place of occurrence at the foot of the recorded statement. When his attention was drawn to the statement of Sri Pranjit Das PW 21, it revealed that there was no such mention of the date and place of recording such statements at the foot of the recorded statement. He admitted that neither the informant nor the sister of the deceased Priyanka Natta Das had made any such statement alleging the illicit relationship of the accused with another girl and with intent to marry that girl the accused used to torture his wife Shipra. He also admitted that Sri Pranjit Das PW 21 at the time of recording his statement under Section 161 Cr.P.C. PW 21 did not tell him that once in a fair at Sonamura accused introduced one girl to the said witness. He further admitted that from the mobile phones seized from the accused, it was revealed that the accused had telephonic conversation with Sri Pranjit Das on several occasions. He also admitted that in course of investigation, he did not make any attempt/ascertain/verify the information whether on the day of occurrence accused had visited Charilam and the matrimonial home of his sister at Madhuban or that whether on the day of occurrence accused visited their residence at Tamashabari at noon or not.
37. PW 33, S.I. Srikanta Chakraborty stated that on 28.09.2015 while he was posted at Sonamura P.S. he was Page 27 of 41 entrusted with the further investigation of the case by the Officer- In-Charge of the Police Station. He completed investigation by examining the Scribe of FIR namely Sri Debasish Datta. He received the spot verification report from Dr. Subhankar Nath, Deputy Director, SFSL, Agartala. After completion of investigation he submitted charge-sheet being found incriminating materials against all the accused persons.
38. On careful scrutiny and meticulous assessment of the evidence, the documents introduced at the time of trial and considering the submissions of the learned counsel of the parties, according to us, the following questions would emerge:
(i) Whether there are exaggerated and improved versions?
(ii) Whether the postmortem report revealed the death as homicidal beyond reasonable doubt?
(iii) Whether disclosure statement of the accused was on sound legal principles?
39. The evidence as led by PW 1, PW 5 and PW 7, who were the mother, grandfather and sister of the deceased Shipra Natta, in their previous statements nowhere stated that the accused had an illicit relationship with another girl and he used to torture Shipra with the intention to marry that girl. The genesis of the prosecution story was rooted at the extra marital affairs of the appellant with another girl. This fact according to us has not been established. PW 7 Smt. Priyanka Natta Das in her evidence has Page 28 of 41 stated that on her frequent query, her deceased sister had confessed to her that accused had developed an extramarital relationship with another girl but the said witness never disclosed or shared this version neither to her parents nor with her friends or relatives. This has raised serious doubt about the integrity and credibility of the said witness about the relationship of the appellant with another girl. Curious enough, PW 7 during her examination under Section 161, Cr.P.C., never disclosed such fact to the Investigating Officer. Similarly, as we said earlier, PW 1 and PW 5 also did not divulge this fact to the Investigating Officer when their statements under Section 161, Cr.P.C. were recorded by the Investigating Officer. As such, we find force in the submission of learned senior counsel for the appellant that the statements of PW 1, PW 5, PW 7 and other related witnesses are exaggerated and improved version of the statements which they made in their previous statement. Further, if we consider the statements of other independent witnesses like PW 2 and PW 3, we find no support to the statements made by PW 1, PW 5 and PW 7 that the accused at any point of time developed extramarital relationship with another girl. Rather, they have stated in their depositions that they noticed good relation between the accused-appellant and his deceased wife Shipra. Even from the deposition of PW 32, the Investigating Officer who recorded the alleged disclosure statement of the accused had admitted that the witnesses of the disclosure statement did not reveal that they have stated in their examination-in-chief before the Court that the accused had an illicit relation with another girl. The Investigating Officer has further Page 29 of 41 admitted that in the disclosure statement the accused-appellant did not disclose that on 1st day of Baishakha, 1422 BS, accused requested the girl over telephone to visit Sonamura and to enjoy Baishakhi Mela with accused Tapas Natta. We have also noticed that the Investigating Officer issued notice to the girl namely Smt. Priya Saha and her mother Smt. Sangita Saha to appear before him. Accordingly, on 06.06.2015 those two persons met with him at Sonamura Police Station but they expressed their ignorance about the alleged incident and as such he did not record their statements. We find that PW 32 interrogated accused Dasharath Natta and his family members when they expressed their ignorance about the allegations made by the informant.
40. In view of the aforesaid facts, we have no hesitation to hold that the genesis of the prosecution story that the accused had an illicit relation with Smt. Priya Saha and due to that reason, the deceased was subjected to torture, is false and without any basis.
41. To decide the point No.2, as to whether the death is said to be homicidal or suicidal. We have taken note of the evidence of Dr. Prasenjit Das (PW 18) along with other two doctors who conducted postmortem examination over the dead body of the deceased. Dr. Prasenjit Das, in his evidence on the postmortem report (Exbt. 20 series and Exbt. 21) as a whole, found the following injuries:
"Rigor mortis is present in passing off stage all over the body. Postmortem lividity is present on the back of trunk except the areas of contact flattening and is fixed. Postmortem lividity cannot be appreciated over the burnt Page 30 of 41 areas on the back of trunk. Blood stained fronthy purging fluid is coming out of the nostrils.
Extern appearance: Eyes are closed. Mouth is partially open and the tongue is protruding and bitten in between the teeth of upper and lower jaw. Blackish colour soot particles is sticking to the tip of the tongue and in the nostrils. Frenula in the oral cavity are found intact and healthy. Nasal bridge is flattened. Kerosene like smell is emitted from the body.
Injuries: Antemortem injuries:
1. Epidermal to dermo-epidermnal burns are present all over the body except over the back of vertex are and back of the head (2%), back of lower part of right arm, whole right forearm and dorsum of right hand (4%), outer aspect of left forearm (1%), back trunk (4%), outer aspect of both legs(3%) in patches and dorsum of both feet (2%).
The burnt surface area involves eighty four percent (84%) of total body surface area. Singeing of body and scalp hair is present. Peeling of cuticle is present. The burnt surface area is reddish to blackish in colour. Heat ruptures are present over the right axilla and back of right arm. Age of burns is fresh in duration.
2. On dissection of the nose, nasal bones are found dislocated at the fronto nasal junction. Surrounding area is bruised. Black coloured soot particles are present inside the nasal cavity."
During his examination he further stated that after receipt of postmortem examination report, the I.O. Sri Srikanta Chakraborty of Sonamura P.S. sent one requisition to them for clarification on the following four points:
1. Whether the death of deceased Sipra Natta was homicidal or suicidal in nature?
2. Whether it was ante mortem or postmortem burning?Page 31 of 41
3. In PM report it is mentioned that, nasal bones are found dislocated at the fronto nasal junction-
whether nasal dislocation was caused because of homicidal or suicidal?
4. Back side of the body right from head to leg and hand was not burnt-whether such burning is homicidal or suicidal or ante mortem or postmortem burning?
Accordingly, Dr. Pranab Choudhury, Dr. Jhutika Debbarma and PW 18 once again had talked with each other and clarified all the four points raised by S.I. Srikanta Chakraborty by submitting a further report on those points which are as under:
1. Regarding nature of death of the deceased Sipra Natta, possibility of homicidal death cannot be ruled out.
2. All the burn injuries mentioned in the postmortem report were ante mortem in nature.
3. Possibility of homicidal dislocation of nasal bone at fronto nasal junction (which was mentioned in the PM report) cannot be ruled out.
4. There were epidermal to dermo-epitermal burn injuries present all over the body except over the back of vertex and back of head (2%), back of lower part of right arm, whole right forearm and dorsum of right hand (4%), outer aspect of left forearm (1%), back of trunk (4%) and outer aspect of both legs (3%) in patches and dorsum of both feet (2%). All the burn injuries were ante mortem in nature and possibility of homicidal burn injury cannot be ruled out.
Thereafter, in examination-in-chief doctor has stated that "Dislocation of nasal bones at the fronto nasal junction as found by us in the dead body of victim Shipra Natta may be caused if the face and nose of a woman like Shipra Natta is pressed forcefully by another person with a pillow. An woman like Shipra Page 32 of 41 Natta may be died if that woman is set on fire by any other person in unconscious condition of that woman."
In the cross-examination PW 18 the doctor replied that
-"it is true that as per our opinion deceased Shipra Natta had sustained such burn injuries as mentioned in our report when she was alive." Next he replied to a question that "in column no.7 of our report (Exbt.20 series) we have mentioned the nasal bone injury of victim Shipra Natta as one of the ante mortem injuries."
PW 18 has further stated that they did not mention the age of injury regarding nasal bone dislocation of victim Shipra Natta even they did not mention whether the said injury was fresh or old. The Doctor has further stated in his cross-examination that it is not possible on their part to ascertain whether the death was caused due to the burn injury sustained by the victim during his/her consciousness or unconsciousness position. He further stated that -"it is true that externally we found no marks of violence over the face and nose of Shipra Natta." He further clarified that to kill a person by suffocation, the nostrils and mouth of the victim must be pressed simultaneously by any object and they detected no signs of suffocation. In his further clarification, PW 18 has stated that they did not find any sign of suffocation which are generally found in case of murder by suffocation by pressing a pillow. The doctor has further stated that the dislocation of nasal bone found in the dead body of the victim may be caused if a person falls on a hard substance losing his/her sense. He further answered in his cross-examination that a person shall have no Page 33 of 41 capacity to move his/her body if he/she fell on the floor of a room becoming in unconscious condition.
PW 18 has further stated that they submitted the previous report (Exbt.20) after considering all the circumstances covered under clarification No.2 to 4 wherein they opined that there is no possibility of homicidal burn injuries. Lastly, the doctor has stated "it is true that in this case it is not possible on our part to opine whether the injuries were homicidal in nature or not."
42. If we read the evidence of PW 18 and scrutinize the postmortem report, we find that Doctor has specifically stated that to kill a person by suffocation the nostrils and mouth of the victim must be pressed simultaneously by any object and they detected no signs of suffocation. It is further confirmed that if a murder is caused by suffocation by pressing a pillow then there would be sign of suffocation in that murder. The injury in the nostrils and dislocation of the nasal bone may be caused if a person falls on a hard substance losing his/her sense. In his cross-examination he has categorically stated that when they opined that this is not a case of homicidal in nature. In their first report they considered all aspects including the aspect of suffocation too and in that report also clarification No.2 to 4 were covered where those points are primarily dealt with various factors of nasal dislocation. The learned trial Judge in his finding has heavily relied upon the evidence of PW 21 that it is established that why the appellant went to his home at about 02:00/02:15 and why he did not come back almost for an hour when the incident had occurred at 03:30 pm. Page 34 of 41 Question arose in his mind that why the sister of the accused did not allow PW 21 to enter the house and how the accused-appellant suddenly met PW 21 after PW 21 made payment for the servicing of motor cycle although a few minutes back accused-appellant told PW 21 that he was suffering from abdominal pain and would consult a Doctor. After such reliance upon the evidence of PW 21, learned trial Judge has observed that "the prosecution referred to Section 106 of the Evidence Act and pleaded that when offence like murder is committed inside house, the inmates of that house cannot keep quite and non-explanation by the house members leads to strong presumption that they committed the incident." Then the learned trial Judge has observed that- "as discussed earlier the presence of accused in the house at the time of incident is well established and the accused failed to explain as to how the incident happened. So far plea of suicide is concerned, it is already found at the beginning of the discussion that it is not a case of suicide but homicide and there is strong presumption that accused Tapash Natta committed the incident."
43. A re-survey of the ocular testimony of the independent witnesses, we find that PW 3, Sri Samitra Banerjee has stated that after hearing shouting of so many people who were uttering the words 'fire', 'fire' loudly he reached to the house of the appellant, ran into the room and found flame in the body of the victim lying on the floor and he found the victim was alive and she was struggling with her burn injuries.
Page 35 of 41
44. PW 9, Mst. Fatema Bibi also has stated in the same breathe that when she entered into the dwelling hut of the appellant she found the victim to struggle with her burn injuries on the floor on their bed room and she corroborated the statements of PW 3 that he poured water on the body of victim and took her out from their bed room, however, she was declared hostile. However, if those ocular testimonies of the said witnesses are read together with the postmortem examination report and the evidence of PW 18, the Doctor, we find substantial support to the opinion of the Doctor that it is a case of suicide but not homicide. In the instant case, it is proved substantially that many persons had gathered at the place of occurrence after hearing the loud shouting of 'fire', 'fire' in the house of the appellant and they all rushed to the spot. None of them had seen the accused person in the house and his father Dasharath Natta also went to Sabroom to attend some ritual observance. The prosecution has miserably failed to establish that none of the neighbours had rushed to the spot even the body was kept in the courtyard. Police arrived immediately after the occurrence and none of the witnesses had even whispered that the appellant had committed the murder. The investigating Officer as well as the Officer-in-Charge also have stated in their testimony that they did not feel it necessary to register suo motu FIR because none of the people who gathered there had made any hint to describe the incident as the cause of murder. The evidence of PW 21, PW 22 and PW 23 appears to be doubtful and what they have stated appears to have developed subsequently. PW 21 has stated that on the date of occurrence i.e. on 14.05.2015, he along with Page 36 of 41 the accused visited the matrimonial home of his elder sister at 11:00/11:30 hours. After enjoying lunch in the house of elder sister they left the house of elder sister and at about 1:30 pm they have arrived at Sonamura.
45. We also find irreconcilable inconsistencies in the statements of PW 21 when in his examination-in-chief he tried to improvise the story and the statement he made in his deposition while being faced with cross-examination his attention was drawn to his statement that- "I told to the recording Judicial Officer that when I visited the house of accused Tapas Natta, he complained about his abdominal pain and that he was in urgent need of medical aid. I also told that subsequently when accused Tapas Natta met with him in front of the servicing centre he informed me that he was feeling better and there was no need to consult with any medical officer."
46. PW 21 has admitted that those facts were missing in his statement recorded under Section 164(5) of Cr.P.C. Further, the statements he made that the appellant had showed one girl in the Baishakhi Mela has also been found absent when it is compared with his previous statements recorded under Section 161 of Cr.P.C.
47. PW 28, Sri Rahul Roy, the Judicial Magistrate 1st Class who has recorded the statements of PW 21 has confirmed that PW 21 did not tell him that the appellant had told PW 21 regarding his urgent need of medical aid for his abdominal pain. The learned Magistrate has further confirmed that PW 21 did not tell him that when the accused Tapas Natta subsequently met with PW 21 in Page 37 of 41 front of the servicing centre, the accused informed him that he was feeling better and he had no need to consult with any Medical Officer.
48. More so, as we discussed in the preceding paragraphs while dealing with the evidence of Investigating Officer (PW 32), S.I. Tapas Malakar that he did not record the statements of the elder sister of the appellant. We also have noticed that PW 26 Sri Shantimoy Sarkar who according to prosecution received the first information about the death of the deceased and on the basis of his information he along with the parents of the deceased had rushed to the house of the appellant. PW 26 has stated that he had received the call from one unknown person but in his evidence before the Court he stated that he received the information from his son Surajit Sarkar who is a businessman and travels Sonamura town frequently. The question is why the said witness did not disclose the name of the informant, particularly, when his son was the caller on the basis of which PW 1 had lodged the complaint where she stated that Shantimoy received a telephone call from an unknown person.
49. In the instant case, we have cautiously noticed that starting from lodging of the FIR and the actions of the Investigating Officer in the process of investigation and if the statements of the witnesses are analysed carefully, meticulously and are read succinctly, then, it is crystal clear that during progress of investigation, the prosecution has tried to improvise the story at Page 38 of 41 every stages which throws a reasonable doubt in the mind of this Court about the genuinity and integrity of the prosecution case.
50. The appellant was arrested on the date of incident on 14.05.2015. From the statement of the Investigating Officer it is evident that he was subjected to interrogation repeatedly and on 17.05.2015 he made disclosure statement to S.I. Tapash Malakar in presence of one Executive Magistrate, Manik Lal Baidya. Said Manik Lal Baidya in his cross-examination has clearly stated that the appellant was given statutory warning before recording disclosure statement. He was not made alert regarding the consequence he may have to face due to such disclosure statement and the appellant was not bound to give such disclosure statement.
51. A bare perusal of the disclosure statement in our opinion, it is not a disclosure statement at all and at the threshold it is liable to be rejected as inadmissible in evidence for the reason that such disclosure statement was not made in presence of Judicial Magistrate.
52. Section 27 of the Evidence Act deals with the discovery of the relevant facts based on a confessional statement under Section 26 of the Evidence Act.
Section 26 of the Evidence Act reads as under:
26. Confession by accused while in custody of police not to be proved against him.--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."Page 39 of 41
53. In the explanation of this Section 'Magistrate' means who exercise the powers of a Magistrate under the Code of Criminal Procedure, 1882.
54. Section 164 of the Code of Criminal Procedure envisages that any Metropolitan Magistrate or Judicial Magistrate may record any confession or statement made to him in course of an investigation under Chapter XII of the Code or under any other law before the commencement of the inquiry or trial.
55. From the disclosure statement (Exbt.13) it is crystal clear that the confession was not recorded by the Judicial Magistrate. As such, the presence of witnesses at the time of disclosure statement by the accused-appellant and their depositions in course of trial being irrelevant are not taken into consideration by this court for the purpose of deciding the present appeal.
56. As we said earlier, under Section 164(2) of Cr.P.C., the Magistrate shall explain to the person making such confession that he is not bound to make a confession and that, if he does so it may be used as evidence against him and further the Magistrate shall not record any such confession, unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
57. In the disclosure statement we nowhere find that there is any such note or writings recorded by the Magistrate concerned that despite warning as aforestated the appellant had made the disclosure statement, and even, there is no compliance of the provisions of sub-Section (4) of Section 164 of Cr.P.C. Page 40 of 41
58. On culmination of the entire facts starting from the discrepancy that we found in lodging of the complaint itself and material discrepancies in the depositions of the related witnesses coupled with substantial improvement and exaggeration of the prosecution version and having due regard to the postmortem report and the evidence of the postmortem Doctor, we have no other alternative but to hold that the prosecution has failed to prove its case beyond reasonable doubt that it is a case homicidal in nature. The benefit of doubt must go in favour of the accused- appellant.
59. We already have observed in the preceding paragraphs that there is no eye witness to the incident and the total case is based on circumstantial evidence. In a case of circumstantial evidence, the well-engrained principle is that the circumstances relied upon by the prosecution should be proved beyond reasonable doubt, and such proved circumstances should form a complete chain so as not to leave any doubt in the mind of the Court about the complicity of the accused. In the instant case, none of the circumstances relied upon by the prosecution have been proved beyond reasonable doubt, and there is no question of a complete chain of circumstances being formed that would point towards the guilt of the accused. In our considered opinion, the benefit of doubt should, therefore, be granted in favour of the appellant. We are accordingly of the opinion that the learned trial Judge erred in convicting the appellant for the offences of committing murder of his deceased wife.
Page 41 of 41
60. Accordingly, the impugned judgment of the learned trial Court stands set aside and the appeal is allowed. The appellant, namely, Sri Tapas Natta alias Papai Natta is acquitted of the charge levelled against him under Section 302 of IPC. Consequently, the appellant shall be released forthwith.
61. The appeal, accordingly, stands disposed.
62. Send back the LCRs. along with a copy of this judgment.
JUDGE CHIEF JUSTICE