Shri Hari Kumar Tripura vs The State Of Tripura on 26 April, 2017

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Tripura High Court

Shri Hari Kumar Tripura vs The State Of Tripura on 26 April, 2017

CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 IN CRL.A(J)36 OF 2014 Sri Rabindra Tripura, son of Sri Subai Tripura @ Subal Tripura, of Village- Bomodhanpara, P.S. Baikhora, District : South Tripura ................Convict-appellant Represented by :

Mr. R. Dutta, Advocate Mr. A. Acharji, Advocate

- Vs -

The State of Tripura Represented by :

Mr. R.C. Debnath, Addl. P.P. ............Respondent IN CRL.A(J)37 OF 2014

1. Sri Fulkumar Tripura, son of Sri Budhimohan Tripura

2. Sri Shrimanta Kumar Tripura, son of Sri Budhimohan Tripura

3. Sri Patirai Tripura, son of Sri Budhimohan Tripura

- all of Village- Raju Para(Hrishamukh), P.S. Belonia, District : South Tripura ................Convict-appellants Represented by :

Mr. R. Dutta, Advocate Mr. A. Acharji, Advocate

- Vs -

The State of Tripura Represented by :

Mr. R.C. Debnath, Addl. P.P. ............Respondent Page 2 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 BEFORE THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE S. TALAPATRA Date of hearing : 25.01.2017 Date of Judgment & Order : 26.04.2017 Yes No Whether fit for reporting :

√ Judgment and Order (Talapatra J.) These three appeals being Crl. A (J) No. 16 of 2013 [Hari Kumar Tripura and Others versus State of Tripura], Crl. A (J) No. 36 of 2014 [Rabindra Tripura versus State of Tripura] and Crl.

A (J) 37 of 2014 [Fulkumar Tripura and Others versus State of Tripura] are directed against three different judgments and orders of conviction and sentence respectively dated 19.12.2012 [in S.T. 39 (ST/B) of 2012], 31.05.2014 [in S.T. 39 (ST/B) of 2012] and

02.01.2014 [in S.T. 39 (ST/B) of 2012] passed by the Additional Sessions Judge, South Tripura, Belonia.

2. It is to be noted that all the judgments of conviction emanate from one single transaction of crime which was reported to the Officer-in-Charge, Baikhora Police Station, South Tripura by one Kusum Tripura on 21.10.2007 reporting that on 21.10.2007, Sunday, at about 6.30 pm while his cousin brother namely Krishna Tripura, son of Subhadhan Tripura, resident of Village South Ichachara was on his way and when he reached the place, nearby Page 3 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 a banyan tree, Rabindra Tripura, son of Subai Tripura [resident of Village Bomadhanpara], Anju Mog, son of late Uchai Mog [resident of Village Ichacharra], Fulkumar Tripura, son of Budhi Mohan Tripura [resident of Village Raju Para(Hrishamukh)], Hari Kumar Tripura, son of Judha Mohan Tripura [resident of Village Ichachara], Chandra Mohan Tripura, son of Burbudhan Tripura [resident of Village Ichachara], Sailendra Tripura, son of Prabhudhan Tripura [resident of village Ichachara] along with two/three unknown person attacked his cousin brother. His cousin brother in order to save his life rushed to the front of the shop which situate in the close proximity.

3. The said accused persons attacked him with dao, lathi and knives. His cousin brother had sustained multiple bleeding injuries caused by dao, lathi and knives as afflicted by those persons. On hearing the outcry of his cousin brother, he along with another brother rushed to the place of occurrence so that they can save him. The accused persons had also assaulted him and his another brother. He and his said accompanying brother received injuries. The accused persons had attacked his cousin brother with intention to kill. On hearing the hue and cry raised by the informant and the accompanying brother, the people from nearby places had rushed to that place when the accused person left his brother half-dead. His severely injured cousin brother was taken to Jolaibari Primary Health Centre for treatment. The said written ejahar filed by Kusum Tripura was received by Baikhora Page 4 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Police Station on 8.45 pm on the day of occurrence, i.e. 21.10.2007 meaning, within about two hours.

4. Based on the said written ejahar, Baikhora P.S. Case No. 104/07 under Sections 341, 148, 149, 326 and 307 of the IPC was registered. Since immediately after the registration of the said police case, the victim expired succumbing to the injuries that he had received in the said assault, the police with leave of the Magistrate added Section 302 of the IPC for investigation. On completion of the investigation, the final report was filed vide the Charge Sheet No. 17/2008 dated 28.03.2008 chargesheeting the following persons under Sections 148, 149, 341/323/326/302 IPC:

(1) Rabindra Tripura, (2) Chandra Mohan Tripura, (3) Hari Kumar Tripura, (4) Fulkumar Tripura, (5) Srimanta Tripura, (6) Patirai Tripura, (7) Sailendra Tripura (8) Punniram Tripura (9) Anju Mog Choudhury and (10) Karuna Tripura.

5. Since the accused persons could not be produced for trial, the trial was split up and finally it came to its logical end by three separate judgments as stated above so far the appellants are concerned. These appeals are from those judgments based on the same prosecution evidence but those evidence were subjected to the said three trials separately. Since these appeals can be decided on appreciation of the evidence being in respect of the same transaction, these are tied up for disposal by a common judgment. It may be noted that if any significant variation is located in the course of appreciation that would be separately Page 5 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 reflected so that in no manner the appellants or any of them suffers any prejudice for dealing with the appeals analogously.

6. For purpose of identifying the appellants in different appeals, they shall be hereinafter referred to as A1, A2 etc. in the following manner :

In Crl. A 16 of 2013 The appellant Name of the appellant To be denoted with No. in the Memorandum of appeal.

1. Sri Hari Kumar Tripura A1

2. Shri Sailendra Tripura A2

3. Shri Karuna Tripura A3

4. Shri Chandra Mohan Tripura A4

5. Shri Anju Mog Chowdhury A5 In Crl. A 36 of 2014 The appellant Name of the appellant To be denoted with No. in the Memorandum of appeal.

1. Sri Rabindra Tripura A6 In Crl A 37 of 2014 The appellant Name of the appellant To be denoted with No. in the Memorandum of appeal.

1. Sri Fulkumar Tripura A7

2. Shri Shrimanta Kumar Tripura A8

3. Shri Patirai Tripura A9 It appears from the records though Sri Punniram Tripura has been charge-sheeted but he could not be produced to Page 6 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 face that trial as yet. On 08.08.2011 the charge was framed against A1, A2, A3 and A5 by the Additional Sessions Judge separately under Sections 148 and 302 read with Section 149 and under section 323 read with Section 149 of the IPC. On 28.08.2011 the similar charge was framed against A4. On 26.09.2013 the similar charge was framed against A7, A8 and A9 by the Additional Sessions Judge. Again, the similar charge was framed against A6 on 04.04.2014. All the appellants pleaded innocence and claimed to face the trial.

7. In order to substantiate the said charge, the prosecution adduced as many as 13 witnesses, namely Kusum Tripura (PW-1), Khokan Patari (PW-2), Kali Krishna Tripura (PW-

3), Mana Krishna Tripura (PW-4), Shyama Charan Tripura (PW-5), Prithivi Lal Chowdhury (PW-6), Smt. Kusumti Tripura (PW-7) , Dr. Pranab Chowdhury (PW-8), Dr. Sarmistha Chowdhury (PW-9), Santosh Shil (PW-10), Swapan Sarkar (PW-11), Madhu Sudhan Chakma (PW-12) and Sajal Dey (PW-13). The prosecution has also introduced some documentary evidence [Exbts.1 to 8] including the written ejahar (Exbt.1), Postmortem Report (Exbt.3) and Preliminary Injury Report (Exbt. 4). From the defence one witness namely Narayan Tripura (DW-1) has been examined and at their instance parts of the statement of Kusum Tripura (PW-1) were marked as Exbts. A and B whereas part of the statement of Kalicharan Tripura (PW-3) is marked as Exbt. C. After the prosecution evidence was closed, the appellants were examined separately under Section 313 of the Cr.P.C. Page 7 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014

8. On recording the defence witness, the Additional Sessions Judge who were in position on the date of delivering the judgment convicted A1, A2, A3, A4 and A5 by the judgment dated 19.12.2012, under Sections 148, 302, 323 read with section 149 of the IPC. In pursuance to the said conviction, A1, A2, A3, A4 and A5 were sentenced to suffer rigorous imprisonment for 3(three) years for the offence committed under Section 148 of the IPC. They were also sentenced to suffer rigorous imprisonment for a year under Section 323 read with Section 149 of the IPC. Further, for their conviction under Section 302 read with Section 149 of the IPC A1, A2, A3, A4 and A5 were sentenced to suffer imprisonment for life and to pay a sum of Rs.5000/- each and in default to suffer rigorous imprisonment for a further period of 3(three) months each.

9. By the judgment dated 31.05.2014, A6 was convicted under Section 148, 302, 323 read with section 149 of the IPC. In pursuance to the said conviction, A6 was sentenced to suffer rigorous imprisonment for 1(one) year for the offence committed under Section 148 of the IPC. He was also sentenced to suffer rigorous imprisonment for 6(six) months under Section 323 read with Section 149 of the IPC. Further, for his conviction under Section 302 read with Section 149 of the IPC A6 was sentenced to suffer imprisonment for life and to pay a fine of Rs.3000/- and in default to suffer simple imprisonment for a further period of 3(three) months with a direction that sentences shall run currently.

Page 8 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014

10. By the judgment dated 02.01.2014, A7, A8 and A9 were convicted under Sections 148, 302, 323 read with section 149 of the IPC. In pursuance to the said conviction, A7, A8 and A9 were sentenced to suffer rigorous imprisonment for 1(one) year for the offence committed under Section 148 of the IPC. They were also sentenced to suffer rigorous imprisonment for 6 (six) months under Section 323 read with Section 149 of the IPC. Further, for their conviction under Section 302 read with Section 149 of the IPC A7, A8 and A9 were sentenced to suffer imprisonment for life and to pay a fine of Rs.3000/- each and in default to suffer simple imprisonment for a further period of 3(three) months each with a direction that the sentences shall run concurrently.

11. Mr. Somik Deb, learned counsel appearing for the A1, A2, A3, A4 and A5 has submitted that the trial court while returning the finding of conviction has failed to conform to the principles which guide the appreciation of evidence. He has at the beginning stated that in the written ejahar there is no reference to A3 whose full name is Anju Mog Chowdhury but having confronted by the court he has acceded that in the written ejahar (Exbt.1) name of one Anju Mog Chowdhury appears in the list of accused persons. Mr. Deb, learned counsel has further submitted that presence of the informant (PW-1) in the place of occurrence or in the nearby place at the time of transaction of crime is doubtful inasmuch as none of the witnesses has stated about his presence. However, he has stated that PW-1 has, while testifying in the trial, Page 9 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 confirmed the presence of Kali Krishna Tripura (PW-3), Shyama Charan Tripura (PW-5) and Smt. Kusumti Tripura (PW-7). Mr. Deb, learned counsel has not even left the point that the time of occurrence is admittedly after the sunset and as such, there cannot be any general presumption of natural light at that point of time. But the prosecution did not take any effort to prove the existence of electricity in that area. He has further submitted that the written ejahar (Exbt-1) is hit by Section 162 of the Cr.P.C. as the G.D. Entry which was recorded previous to the said written ejahar had disclosed the occurrence and that should have been treated as the First Information Report (FIR) and thus the very basis of investigation has turned unlawful.

12. Further, Mr. Deb, learned counsel has submitted that most of the witnesses in this case have embellished upon their previous statement and as such there credence has been severely affected. The testimonies of those witnesses can hardly be used to return the finding of conviction. He has also contended that the Investigating Officer has not examined any independent witness from the locality when there is evidence on record there was political enmity between the two groups who had entangled in the said transaction, the partisan witnesses cannot provide the basis of conviction. No weapon of offence in terms of injuries has been recovered either from the custody of the appellant or from any other place. To buttress his point, Mr. Deb, learned counsel has relied Sunil Kundu versus State of Jharkhand reported in Page 10 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 (2013) 4 SCC 422 where the apex court had occasion to observe as under :

"23. As we have already stated the major lacuna in this case is that use of firearms by the accused is not proved. There are no firearm injuries on the deceased. It is true that when there is cogent eye-witness account, the medical evidence recedes in the background. However, when the eye-witness account is totally inconsistent with the medical evidence and there is reason to believe that improvements are made in the court to bring the prosecution case in conformity with the post-mortem notes, it is a cause for concern. In such a situation, it is difficult to say that one must believe the tainted eye-witness' account and keep the medical evidence aside. In this connection, we may usefully refer to the judgment in Sahebrao : (2011) 4 SCC 249 where this Court observed that when the doctor's experience has not been questioned, he is the only competent person to opine on the nature of injuries and cause of death. We may also refer to the judgment of this Court in Anjani Chaudhary : (2011) 2 SCC 747 where the medical evidence did not support the appellant's presence as there was no injury on the deceased which could be caused by a lathi and the appellant was stated to be carrying a lathi. Since the eye-witnesses therein were not found to be reliable, this Court acquitted the appellant therein.

24. In Kapildeo Mandal : (2008) 16 SCC 99 all the eye- witnesses had categorically stated that the deceased was injured by the use of firearm, whereas the medical evidence specifically indicated that no firearm injury was found on the deceased. This Court held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye-witnesses has to get priority as medical evidence is basically opinionative. But, when the evidence of the eye- witnesses is totally inconsistent with the evidence given by the medical experts then evidence is appreciated in a different perspective by the courts. It was observed that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eye-witnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy. This judgment is clearly attracted to the present case."

13. For dilating his submission, further Mr. Deb, learned counsel has contended that the presence of chance witness if not established substantively, the prosecution would run a risk if reliance is placed on his testimony. In this regard, a decision of the apex court in Noushad alias Noushad Pasha and Others versus State of Karnataka reported in (2015) 2 Page 11 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 SCC 513 has been referred. In Noushad (supra) the apex court has observed as under :

"30. It was beyond controversy that the actual occurrence of assault on the deceased Lingaraju took place inside the banana shop, the area of which going by the description, could not have been beyond 90-100 sq ft. If inside such a small place assuming 15 persons had entered and by the time PW 11 was approaching near Mahadevswami Clinic, the occurrence had already taken place, it would have been next to impossible for anyone, much less PW 11 to have gone inside the shop and to have noticed as to who was assaulting the deceased with what weapon. While looking at the place of occurrence, even if it is from a nearby place, when the particular place of occurrence was surrounded by not less than 35-40 persons of whom 15 persons stated to have already entered the place of occurrence, the scope for PW 11 to have witnessed the incident with that much of exactitude, as to which accused assaulted his brother with what weapon in his hand cannot be said to have been really witnessed by him. That part, even by his own version he saw his deceased brother coming out of the shop and trying to escape from the assault of persons gathered there who continued to inflict injuries on him and on seeing his brother running toward the police station, which was beyond Surya Prabha Hardware Shop, PW 11 himself instead of going towards the shop was following his injured brother who fell down near Surya Prabha Hardware Shop and collapsed. The said part of his evidence is consistence with the evidence of PW 15."

14. Mr. Deb, learned counsel appearing for A1, A2, A3, A4 and A5 has further submitted that while returning the finding of conviction under section 148 or under Section 149 of the IPC the trial court has failed to appreciate the text in the statute in the light of various apex court decisions. He has referred B. Virupakshaiah versus State of Karnataka and Others reported in (2016) 4 SCC 595. But this court with all humility, is constrained to observe that this decision does not have any relevance in the context of the present appeal.

15. Mr. R. Dutta, learned counsel appearing for A6, A7, A8 and A9 while generally adopting the submission of Mr. Deb, Page 12 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 learned counsel has supplemented quite substantively and elucidated on some additional grounds. He has at the outset has submitted that PW-1 cannot be believed as his presence has not been supported by any witness. According to Mr. Dutta, learned counsel the version of the FIR is exaggerated on the political consideration to involve the innocents. Mr. Dutta, learned counsel has further submitted that even though PW-1 has claimed to be eye witness of the occurrence but has he failed to disclose the transaction in a credible manner and hence his version is not liable to be relied on. In this regard he has relied on a decision of the apex court in Shahid Khan versus State of Rajasthan reported in AIR 2016 SC 1178 where the apex court has observed that when the names of the assailant are not mentioned in the complaint which has been filed at the first instance in the police station nor the names of the persons were present during the occurrence, subsequent elaboration in that regard would be subject to serious scrutiny by the court at the time of appreciation. Mr. Dutta, learned counsel having referred the testimony of PW-11 has stated that PW-11 being the Investigating Officer has categorically stated that on receiving the written ejahar he rushed to the Balibari, the place of occurrence and recorded the statement of Babul Debnath and Rakhal Debnath. He had also examined Dilip Debnath and Sadhan Debnath but did not record their statement as they had corroborated the other statements those he recorded. He had also admitted that at Bomadhan Para he had recorded the statement of Narayan Tripura Page 13 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 and Bomadhan Tripura. PW-11 has further stated that on 23.11.2007 at Bomadhan Para at about 15.10 hrs. he had recorded the statement of Kusumti Tripura (PW-7) and Ananta Tripura. On 01.11.2007 at about 1.00 pm in the noon he had recorded the statement of Kamal Sarkar and Prithivi Lal Chowdhury (PW-6). On 11.11.2007, he gathered information that the appellants namely Rabindra Tripura, Chandra Mohan Tripura and Hari Kumar Tripura, Fulkumar Tripura, Sumanta Tripura, Patirai Tripura, Sailendra Tripura and Punniram Tripura had surrendered. PW-11 has also testified that despite the victim Krishna Charan Tripura was alive for sometime but he did not give any requisition for recording his dying declaration as when he visited Jolaibari PHC, the victim was found unconscious. When he was asked by the defence PW-11 had clarified that the statements which he considered relevant for the investigation were reduced by him in writing. However, he has categorically admitted that Kali Krishna Tripura (PW-3) who testified that he saw the assailants in the electric light did not state to him that he saw the assailants in the electric light. Thus, he did not seize any electric light or anything in that regard.

16. Mr. Dutta, learned counsel having relied the statement of PW-5, Shyama Charan Tripura and PW-3, Kali Krishna Tripura that the shops of Nepal Debnath, Dulal Debnath and Kanchari Mog are in the close proximity of the banyan tree whereas the shop of Khokan Patari is 50 cubit away from the banyan tree, those shopkeepers were not deliberately examined by the Investigating Page 14 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Officer and as such, the investigation is not fair and is prejudicial to the defence.

Mr. Dutta, learned counsel having referred Section 114(g) of the Evidence Act has emphatically submitted that the evidence of those shopkeepers which could be and is not produced would if produced be unfavourable to the prosecution and which apprehension had leveraged them to withhold those witnesses. In this regard, he has referred a decision of the Gauhati High Court in Bhanda Garh versus State of Assam reported in (1984) Cri. L.J 217 where it has been enunciated as under :

"10. In our opinion, the most material lapse of the prosecution which has shaken the substratum of the case is that it has withheld the two charge-sheeted witnesses, Giridhari and Yudhistir, and has given no explanation for non-examination of these two witnesses. It cannot be denied that in the peculiar circumstances of the case these witnesses were the most material witnesses inasmuch as Giridhari was the only man who had given information to P.W. 1 on the basis of which the FIR in this case was lodged. Yudhistir would also have been an equally important witness inasmuch as he was the person who was in the group which attended the Kirtan and according to the evidence of both P.Ws. 3 and 5 he was also an eye-witness of the occurrence. We have, therefore, no hesitation in this case to draw inference against the prosecution under Section 114 (g) of the Evidence Act for non-examination of not only these two witnesses but also Bibhhari who, if examined, in our opinion, would have given life to the prosecution case."

17. Mr. Dutta, learned counsel thereafter referred to the testimony of PW-1 to demonstrate that at the time of occurrence it was dusk. The relevant part of the cross examination of PW-1 as referred by Mr. Dutta, learned counsel is reproduced hereunder :

"It was dusk when the incident took place. I was at the shop of Khokan Patari when the incident near the banyan tree took place. Anju Mog & Hari Kr. were standing nearby the shop. They did not have any arm. Around the P.O. there were many houses."

Page 15 of 44

CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Similarly, PW-4, Mana Krishna Tripura has testified in the trial by stating as under :

"I am a CPI(M) supporter. 10/15 persons generally assembled in the shop of Khokan Patari in the evening. It was evening when the incident took place and was dark."

As referred earlier that PW-11 did categorically state that nobody had stated to him that there was electric light in the place of occurrence and for that reason, he did not seize any material in respect of the electricity connection etc. Mr. Datta, learned counsel in this background has stated that PW-3 categorically stated that he saw the accused person namely Fulkumar (A7), Srimanta (A8), Patirai (A9), Sailendra (A2), Hari Kumar (A1) and Karuna (A3) striking the victim by a lathi even though Anju Mog Chowdhury was there but he did not have any weapon. He had made a categorical statement that "this happened in the shop of Khokan Patari and I saw them in the light of the electric light of the shop assuming Krishna Tripura to be dead, they moved away."

18. Mr. Dutta, learned counsel has contended that identification of the assailants occupies a paramount importance as the occurrence took place after the dusk and there was darkness all around. PW-11 has testified that he did not seize any electric light or material to show that there was electricity line in the place of occurrence or nearby. Thus, the prosecution story has been hit further. Mr. Dutta, learned counsel has referred a decision of Gauhati High Court in Laba Chandra Dutta and Page 16 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Others versus State of Tripura reported in (2000) Cri. L.J 1523 where it has been observed as under :

"10. There is other important feature in the prosecution case on account of which the appellants are entitled to benefit of reasonable doubt. PW-21 had stated in his examination -in-Chief that he could identify the appellants out of 5/6 miscreants with the help of light of a mashal but the fact that he identified the appellants in the light of a mashal has not been corroborated in his statement under Section 164, Cr.P.C., recorded by the Magistrate on 19-6-84 (Ext-6). This has been put to him in his cross-examination and he stated that he did not remember that whether he stated before the Magistrate that he could identify the appellants with the help of light of a mashal. PW-22 has also stated that in the examination-in-Chief that his uncle had a burning mashal in his hand. But the seizure list Ext-2 does not disclose that any mashal was seized from the place of occurrence. PW-23, the Investigating Officer has stated in examination-in-chief that a Kupabati was seized from the place of occurrence but has sought to explain in his cross-examination that although mashal was seized, Kupabati was mentioned in the seizure list. But the description of the lamp as given in the seizure list Ext-2 against item No. XII is one flat lamp made of coconut oil can ? The incident occurred at about 7/7/.30 p.m. when admittedly it was dark and the accused persons could not be identified without light. Thus the prosecution story of identification of the appellants by PWs-21 and 22 with the help of light of a mashal appears to be an afterthought introduced to lend credence to the prosecution story. It is, therefore, difficult to rely on the prosecution case that PWs-21 and 22 identified the appellants out of 5/6 miscreants particularly when the first version of PWs-21 and 22 before the PW-1 soon after the incident at about 8.00 p.m. on the same night was that they could identify only Bhutto out of 5/6 miscreants."

19. Mr. Dutta, learned counsel has referred to the following statement of PW-11 for contending that the FIR that has been registered would not have been treated as the FIR :

"On 21.10.2007 I was posted as SI at the Baikhora P/S. On that day at 1845 hrs. I received a telephonic information from one Kamal Sarkar that there was an incident in which one Krishna Tripura had sustained grievous injuries & was lying near the shop of Khokan Patari at Balirbari. Making the GD Entry of the information Vide No. 741, I reached the spot at 1905 hrs. & found that the person was lying on the veranda of the shop with severe injuries. I also found some sticks lying there. As the person unconscious, I sent him to the Jolaibari PHC in my vehicle with my staff. There was a tension & chaos in the surrounding are including the Mog para which tackled. At the same time I informed Page 17 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 the incident to the O/C P/S through wireless set. At 1945 hrs I received a written complaint about the incident at the spot from one Kusum Tripura. After perusing the complaint I sent it to the P/S by Constable Babul Chakraborty. This is my endorsement in the complaint with signature Exbt.1/3. As the complaint revealed a cognizable offence, I took up the investigation."

20. Mr. Dutta, learned counsel in order to buttress his contention has referred a decision in Tukun Sharma versus State of Tripura reported in (2016) Cri. L.J 4019 where this court had occasion to observe that Section 154 of the Cr.P.C. provides that if the information is given orally to the Officer-in- Charge of a police station it shall be reduced to writing by him or under his direction. When an information is received by the police and which reveals a definite cognizable offence, "the subsequent collection of the written ejahar" is clearly hit by Section 162 of the Cr.P.C. and cannot be regarded as FIR. Thereafter Mr. Dutta, learned counsel drifting a little bit from the submission of Mr. Deb, learned counsel has contended that even though from the place of occurrence lathis were seized by the Investigating Officer but the same was not sent for Forensic Examination to ascertain whether the said lathis were used for assault on the victim. This is not a mere im-perfection of the investigation but dropping off a material piece of evidence for unearthing the truth or for verifying the trustworthiness of the eye witness account. In this regard Mr. Dutta, learned counsel has referred to a decision of Gauhati High Court in Madan Malakar versus State of Tripura reported in (2011)(5) GLR 696 where it has been observed as under :

"56. In the instant case, dao, the weapon which is alleged to have been used in the commission of offence, Page 18 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 though seized as per the alleged discloser of the accused, but the same was not sent for serological test for providing whether the said dao was utilised at all in the commission of offence or not and in absence of such test, it is very difficult to connect the accused with the alleged offence. More so, the prosecution also failed to explain whether the deceased was in a position to make any discloser of the name of the assailant(s) when he was found in injured condition and whether there was any attempt from the side of the investigating authority for ascertaining as to who is the actual culprit from the deceased before this death."

21. Mr. Dutta, learned counsel has drawn notice of this court to a part of testimony of PW-8, Dr. Pranab Chowdhury who has clearly stated that he found five external injuries at the time of autopsy and out of those injuries injuries No. 1 and 2 were caused by sharp pointed weapon and injuries No. 3, 4 and 5 were caused by sharp and edged weapon. To a query from the court, he had clearly stated that sharp edge weapon might be dao and takkal and sharp pointed weapon might be knife and knife-like weapon. But there had been no seizure of such weapon. Having referred to the statement of PW-9, Dr. Sarmistha Chowdhury where she testified that all the three patients were conscious when they were brought to Jolaibari PHC, but the Investigating Officer did not take the action warranted in the circumstances including recording of the dying declaration. The Investigating Officer had acted brazenly and in a partisan manner.

22. While summing up his submission, Mr. Datta, learned counsel has added that the way Section 149 of the IPC has been applied it cannot be held to be based on correct interpretation, on the contrary it stands in conflict with a decision of the apex court Page 19 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 in Nagarjit Ahir versus State of Bihar reported in 2005 Cri. LJ

904. In Nagarjit Ahir, the apex court has observed as under :

"14. We, therefore, find no reason to differ from the view taken by the courts below. However, there is one aspect of the matter which requires consideration. Appellant Nagarjit Ahir is the son of Lakshman Ahir. The prosecution has not alleged any overt act against Nagarjit Ahir. The evidence on record establishes the fact that large number of persons were present. In such a case, it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149 IPC, lest some innocent spectators may get involved. This is only a rule of caution and not a rule of law. In the instant case, we find that even if Nagarjit Ahir was present when the occurrence took place, there is nothing to suggest that he shared the common object of the unlawful assembly. Admittedly, he did not take any part in the assault. We do not, therefore, consider it safe to convict him merely on the ground that he was present, because admittedly large number of persons had come to the ghat that day for taking a bath in river Ganges. We, therefore, extend to him the benefit of doubt and acquit him of all the charges levelled against him."

[Emphasis added]

23. Mr. R.C. Debnath, learned Additional Public Prosecutor appearing for the state has in order to repel the submission of the learned counsel for the appellants (A1 to A9) has at the beginning submitted that in the criminal jurisprudence, there cannot be straight-jacket application of legal principles. There application depends on the resembling fact and on impact of the collective of the facts as established. He has categorically stated that overt- acts of Hari Kumar Tripura (A1) have been quite distinctly established from the testimonies of PWs-1, 5 and 7. Similarly overt-acts of Sailendra Tripura (A2) have been established from the testimonies of PWs-1, 3 and 5. Overt-acts of Karuna Tripura, (A3) have been established from the testimonies of PWs-1, 3, 5 and 7. Overt-acts of Anju Mog Chowdhury, (A5) have been Page 20 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 established from the testimonies of PWs-1, 3, 5 and 7 whereas overt-acts of Chandra Mohan Tripura (A4) have been established from the testimonies of PWs- 1, 2, 3, 4, 5 and 7. Overt-acts of Fulkumar Tripura (A7), Patirai Tripura (A9) and Rabindra Tripura (A6) have been established from the testimonies of PWs- 1, 2, 3, 4, 5 and 7 whereas overt-acts of Shrimanta Tripura (A8) have been established from the testimonies of PWs- 1, 2, 3, 4 and 5.

24. Mr. Debnath, learned Addl. P.P. while making his submission on some apparent congruities in the statements of witnesses has submitted that many factors visit the statements including the power of observation, the position of witnessing the occurrence and also the subjective elements like understanding of how the transaction was taking place. In this respect he has referred a decision of the apex court in Boya Ganganna and Another versus State of A.P. reported in AIR (1976) SC 1541 where it has been observed as under :

"No doubt, some minor contradictions here and there have been pointed out by the learned counsel appearing on behalf of accused Nos. 2 and 3, but such minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in case of trained and educated persons, memory sometimes plays false and this would be much more so in case of ignorant and rustic women. It must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another through both are present at the scene of offence. It would not, therefore, be right to reject the testimony of witnesses like PW 2, PW 3, PW 4 and PW 5 merely on the basis of minor contradictions. We think that the High Court was right in accepting the testimony given by them."

[Emphasis added] Page 21 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014

25. Mr. Debnath, learned Addl. P.P. thereafter referred the apex court decision in Ramesh versus State reported in AIR 2014 SC 2852 wherein the apex court on the aspect of omission in general in making the statement or requisitioning certain examination has observed that even if the name of the accused did not figure in the FIR but later on his involvement has surfaced from the testimonies, mere non-mentioning of the name in the FIR will not exculpate the accused. However, the impact would be different if the attempt to falsely implicate the accused is proved. Having approvingly cited the passages as under from Jitendra Kumar versus State of Haryana reported in (2012) 6 SCC 204 the apex court had occasion to discarded the claim to acquittal in Ramesh (supra) by the accused on the ground as under :

"17. The court shall also examine the role that has been attributed to an accused by the prosecution. The informant might not have named a particular accused in the FIR, but such name might have been revealed at the earliest opportunity by some other witnesses and if the role of such an accused is established, then the balance may not tilt in favour of the accused owing to such omission in the FIR.

18. The court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P."

[Emphasis added] Page 22 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014

26. On the same aspect, Mr. Debnath, learned Addl. P.P. has referred a decision of the apex court in State of U.P. versus Krishna Master and Others reported AIR 2010 SC 3071 where the apex court by reversing the finding of the High Court has observed that it was highly doubtful that the eye witness was present inside his own house and had seen the incident which occurred inside the house of another person. Even though the eye witness has stated that he was sleeping in the court yard of his house and had woken up on hearing sound of gun shots and was scared, and as a result of which he stood by the side of the wall of the court yard to save himself. In that background, the apex court has re-appreciated the law how to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsities are so glaring as utterly to destroy the confidence in the witness. The passages which are relevant in this context are extracted from Krishna Master (supra) are as under:

"28. On re-appreciation of evidence of Jhabbulal, this Court finds that he has not made major improvements in his testimony before the Court and the so-called discrepancies which are blown out of proportion by the High Court are minor in nature and do not relate to the substratum of the prosecution story. To say the least, this Court finds that the approach of the High Court in appreciating evidence of PW 1 Jhabbulal who was a rustic witness is not only contrary to the well settled principles governing appreciation of evidence of a rustic witness but is perverse.

29. At this stage, it would be well to recall to the memory the weighty observations made by this Court as early as in the year 1988 relating to appreciation of evidence and the duties expected of a Judge presiding over a criminal trial. In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed as under :

"In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The Page 23 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witness add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform ."

27. Mr. Debnath, learned Addl. PP while refuting the contention that a lapse or omission in doing what should have been done, including the chemical examination, to lend corroboration to the evidence has referred a decision of the apex court in State of Rajasthan versus Kishore reported in AIR (1996) SC 3035 and has contended that the evidence has to be appreciated in the legal perspective but not to discard the prosecution case for invalid reasons. Mr. Debnath, in particular, has referred the following passage from Kishore (supra) :

"18. It is equally true that the investigating officer P.W. 8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. It is seen from the Panchanama recovery of the incriminating material from the scene of offence that there was an attempt to screen the offence by Page 24 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 destroying the evidence. Others were prevented from entering the room. That by itself indicates on attempt on the part of the accused to destroy the incriminating evidence and to prevent others from saving the life of the deceased. Therefore, the absence of smell of kerosene oil on the hair sent for chemical examination does not render the dying declaration of the deceased suspect nor would it become unbelievable. The High Court, therefore, has not considered the evidence in the proper and legal perspective but felt it doubtful like Doubting Thomas with vacillating mind to accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt."

28. Mr. Debnath, learned Addl. P.P. has quite emphatically submitted that even non examination of all eye witnesses cannot be treated as fatal for the prosecution case if the eye witnesses who were examined are found trustworthy and their testimonies are of such quality based on which the conviction can be returned. For nourishing this submission Mr. Debnath, learned Addl. P.P. has referred to a decision of the apex court in Birendra Rai and Others versus State of Bihar reported in AIR (2005) SC 1284 where it has been observed as under :

"11. It is then argued that several persons were named in the first information report , as also by the witnesses, who were present in the nearby shops when the occurrence took place but none of them has been examined. Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons."

29. Mr. Debnath, learned Addl. P.P. has placed reliance on two apex court decisions in order to place the interpretation which according to him has to be accepted. In Mahmood & Another versus State of U.P reported in AIR 2008 SC 515 the apex court has illustrated the application of Section 149 of the IPC for purpose of convicting the accused persons for committing offence Page 25 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 of murder punishable under Section 302 of the IPC in the manner as under :

"25. The learned counsel for the State rightly contended that in case of attack by members of un-lawful assembly on the victim in furtherance of common object, it is not necessary for the prosecution to establish over-act done by each accused. It is required to be noticed that Ram Smujh(A-1) who had fired two shots, convicted by the Sessions Court, did not even challenge his conviction in the High Court. The appellants have been rightly convicted under Section 302 read with aid of Section 149 of IPC. PW-5 in his evidence stated that all the injuries sustained by the deceased were from gun. It is further stated that "from the body of deceased one bullet, one cover tikli, two dat and 40 chare shots were taken out, put in packet and sealed. It is also stated in his evidence that injuries caused on the body of the deceased were sufficient in the normal course to cause death. This part of the medical evidence if juxtaposed with the oral evidence of PW-1, 2 and 3 it becomes unnecessary to go into the question as to which accused caused what injury and which was fatal one. Once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish any specific over-act to any of the accused for fastening of liability with the aid of section 149 of the IPC. Commission of overt-act by each member of the unlawful assembly is not necessary. The common object of the unlawful assembly of the accused in the present case is evident from the fact that some of them were armed with deadly weapons. None of them were curious onlookers or spectators to the macabre drama that was enacted on 19.2.1977 at 3.30 p.m. at Galiyara, village Badipur."

[Emphasis added]

30. In Ramesh and Others versus State of Haryana reported in AIR (2011) SC 169 the apex court while giving an harmonious interpretation of Section 149 of the IPC has stated that an unlawful assembly has to be gathered from the nature of the assembly, arms processed by them and the behaviour of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case to attract the mischief of that section. It is not necessary that the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any Page 26 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 member of unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. In Ramesh (supra), the apex court has approvingly reproduced the decision in Chandra Bihari Gautam and Others versus State of Bihar reported in (2002) 9 SCC 208 where the apex court has held as under :

"8. Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of the complainant at the dead of night and were armed with deadly weapons including the guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed an unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence. The courts below have, therefore, rightly held that the accused persons formed an unlawful assembly, the common object of which was to commit the murder of the informant and his family members and in prosecution of the said common object six persons were killed. The appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant."

31. Having referred a decision of the apex court in Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 Mr. Debnath, learned Addl. P.P. has Page 27 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 contended that even if witness is interested to secure the conviction of the accused that might not by itself be a ground to discard his testimony if it is found in the circumstances that the evidence of such witness does not suffer from any incredulity. Even it is not an absolute rule that the evidence of an interested witness cannot be accepted without corroboration, it is a rule of caution. In this case, the witnesses who are related to the deceased have been substantively corroborated by the independent witnesses.

32. Mr. Debnath, learned Addl. P.P. has finally submitted that the prosecution has substantiated the charge as brought against the appellants beyond reasonable doubt. Hence, no interference is warranted from this court.

33. For purpose of appreciation, it is required that the evidence recorded in the trial be revisited in a meaning manner. PW-1, Kusum Tripura has clearly stated that when the deceased was on his way and reached Balibari shop nearby the banyan tree then A6, A5, A7, A1, A4 and A2 along with two or three other persons attacked the deceased with dao, lathi and knife. On his alarm PW-1 and his another brother rushed to save the deceased. PW-1 sustained injuries and he has categorically stated that those persons attacked his brother with intention to murder. As the nearby people had rushed towards the place of occurrence the accused person left the deceased in half-dead condition. True it is that PW-1 had disclosed the name of A1, A2, A4, A5, A6 and A7. When he testified in the court he had named the persons along Page 28 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 with whom he was proceeding towards balibari Bazar from the house. They were Kalikrishna Tripura (PW-3) Shyamacharan Tripura (PW-5), Krishna Charan Tripura [the deceased] and the wife of the deceased Kusumti Tripura (PW-7). When they reached near the banyan tree, PW-1 saw all the appellants along with one Punniram Tripura were assaulting Krishna Charan [the deceased] by dao, lathi and knife. After assaulting the deceased, the appellants and their accomplice fled towards Bomadhan Para around 7.30 pm the police reached the spot with one Kamal Sarkar [not examined in the trial]. After the police arrived, PW-1 came to the shop of Khokan Patari (PW-2). He has admitted in the trial that the ejahar was written by one Prithivi Lal Chowdhury (PW-6). He identified the appellants. In the examination-in-chief, he has stated that he was proceeding with others. In the ejahar, he named Anju Mog. In the cross-examination he has stated that when Kali Krishna asked Rabindra and Chandra Mohan why they had threatened on going to his house, an altercation ensued. That incident occurred at 5.30 pm. He denied the suggestion that only Rabindra and Chandra Mohan had assaulted his brother-in-law. His statement about the visibility has already been referred to. The defence has failed to record any substantive contradiction or omission by way of cross-examining him. PW-2, Khokan Patari is an independent witness who runs a shop at Balibari Bazar. In the examination in chief he has stated as under :

"On 21.10.2007 I was at my shop (grocery) at Balibari bazaar at about 6/6.30 pm. At that time, Krishna Tripura came running to my shop behind him Rabindra Tripura, Chandra mohan Tripura, Fulkumar Tripura, Page 29 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Srimanta Tripura, Patirai Tripura came running & assaulted Krishna Charan by lathi. As a result, Krishna Charan sustained injury. After about 40 minutes, police arrived. All the persons named by me only Chandramohan Tripura is present at the dock. He has identified. Others are absent. I first heard hue and cry from the banyan tree area on the western side of my shop."

By cross examination, no dent could be created in the said statement.

34. PW-3, Kali Krishna Tripura has stated that on 21.10.2007 at about 6 p.m. [time of the occurrence] he was proceeding to the shop of PW-2 at Balibari Bazar when he reached near the banyan tree he found A6, A4, A7, A8, A9, A2 Punniram Tripura, A3 and A5. He asked A6 why he had enquired about him on that afternoon. A6 gave him a blow by lathi suddenly. In order to save himself, he ran away. At that time his brother-in-law, Krishna Tripura [the deceased] was with him. Krishna Tripura was attacked by all of those appellants and one Punniram Tripura. Krishna Tripura fled away towards the shop of PW-2. Chasing him Rabindra Tripura [A6] struck blow by a dao and Chandra Mohan [A4] by a knife. The others namely Fulkumar [A7], Shrimanta [A8], Patirai [A9], Sailendra [A2], Harikumar [A1], Karuna [A3] struck him by lathi. Anju Mog Chowdhury was there but he did not have any weapon. He asserted that he saw the assault when he had taken shelter in the jungle. Further, he has stated that "this happened in the shop of Khokan Patari & I saw them in the light of the electric light of the shop. Assuming Krishna Tripura to be dead they moved away." After the police came at about 8 to 9 pm Krishna Tripura was taken to Jolaibari Hospital and he died in the Page 30 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 G.B.P. Hospital on the following day. He had identified the appellants in the trial. In the cross-examination, PW-3 has stated about the existence of the other shops nearby the banyan tree as referred earlier. He has denied the suggestion that he did not identify the appellants in the electric light. But he has admitted that he did not state specifically to the Investigating Officer that he saw Rabindra assaulting by dao and Chandra Mohan by knife and Fulkumar , Shrimanta, Sailendra, Patirai, Hari Kumar and Karuna by lathi.

35. PW-4, Mana Krishna Tripura has stated that on the day of occurrence he had heard the cry from the banyan tree area and then he saw Krishnacharan Tripura [the deceased] rushing to the shop of Khokan Patari. Rabindra Tripura, Chandramohan Tripura, Karuna Tripura, Fulkumar Tripura, Shrimanta Tripura, Patirai Tripura, Punniram Tripura attacked him with dao, lathi and knife. They assaulted him causing severe blood injury. He admitted that he cannot recall whom attacked by which weapon. After assault the assailant fled towards Bomadhan Para. Within fifteen minutes, the police arrived and shifted Krishnacharan to the hospital. He has admitted that nearby the banyan tree there were shops of Kanchari Mog, Dulal Debnath and Nepal Debnath. He has also admitted that when the incident took place, it was dark.

36. PW-5, Shyama Charan Tripura have stated that he saw Rabindra Tripura, Chandra Mohan Tripura, Fulkumar Tripura, Hari Kumar Tripura, Sailendra Tripura, Patirai Tripura, Shrimanta Page 31 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Tripura, Punniram Tripura and Anju mog chasing his elder brother Krishnacharan Tripura up to the shop of Khokan Patari. They were armed with dao, lathi and knife and they assaulted him causing bleeding injury. He has also stated that he saw the accused persons in the electric light of the shop of Khokan Patari. He has admitted about existence of other shops nearby the banyan tree. He had denied the suggestions contrary to his statements in the examination-in-Chief made to him.

37. PW-6, Prithivi Lal Chowdhury is the scribe and he has stated in the trial that as per dictation of Kusum Tripura he wrote the ejahar (Exbt-1). He has denied the suggestion contrary to what he has stated in the examination in chief.

38. PW-7, Smt. Kusumti Tripura has stated that she was in the shop of Khokan Patari at about 6 p.m. when the incident occurred. At that time, Shyamacharan Tripura and Mananarayan Tripura were also there. She saw her husband Krishnacharan Tripura running towards that shop. Chandramohan Tripura, Rabindra Tripura, Hemanta Tripura, Patirai Tripura, Fulkumar Tripura, Sailendra Tripura, Harikumar Tripura, Punniram Tripura, Anju Mog, Karuna Tripura were chasing him. They had assaulted him by dao, lathi and dagger (knife) causing severe bleeding injuries and he collapsed there. The police shifted her injured husband to the Jolaibari Hospital and ultimately he died at G.B.P. Hospital, Agartala. Having confronted, she had failed to show any statement that Shyama Charan was also there. In the cross examination she restated she was in the shop of Khokan Patari. Page 32 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Further, she stated that she accompanied her injured husband to the hospital. She denied the other suggestions made in conflict with her cross examination.

39. PW-8, Dr. Pranab Chowdhury who conducted the post- mortem examination on the dead body of Krishnacharan Tripura, having been duly identified, found the following external injuries :

"1. Stab injury on the right side anterior aspect of thigh 4 cm above the right knee joint size 2 cm x 1.2 cm x 4 cm.

2. Stab would present in the medical aspect lower part of left thigh, 1.4 cm above the left knee joint, size 2 cm x 1.1 cm x 3.8 cm.

3. Stitched wound 10 cm on the left side frontal region, 4.5 cm above the left eye brow and 2 cm left to mid line obliquely placed with nine nos. of stitches.

4. Stitched would with 8 no. of stitches present from the right side frontal parioto region 8 cm in length situated 10 cm above the right eye brow and 2.8 cm right to mid line vertically placed.

5. Stitched would over the right side temporal region with 4 nos. stitches in 4 cm in length situated 3.4 cm above the right ear vertically placed. After reflecting the scalp there is defuse /effusion of extravasated blood all over right temporal frontal & partial region & left frontal region & tempo perital corresponding to the injury No.4. Meningis are normal & intact. Extradural & subdural haemorrhage present all over right temporal perital (portion torn) frontal region with much affect.

Injury No. 1 & 2 were caused by sharp pointed weapon & injury No.3 4 & 5 caused by sharp & edged weapon. "

40. PW-8, Dr. Pranab Chowdhury has categorically stated that the injuries No. 1 and 2 were caused by pointed weapon and injuries No. 4 and 5 were caused by sharp and edged weapon. Those injuries can be caused by dao and takkal and pointed weapon like knife. He has stated in the cross examination that the injuries No. 3, 4 and 5 cannot be sustained on fall on a sharp edged object.

Page 33 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014

41. PW-9, Dr. Sarmistha Chowdhury had attended Krishnacharan Tripura in Jolaibari Primary Health Centre (PHC) and stated that apart from three injuries the injured person was bleeding heavily from head. She had also stated that she examined one Shyama Charan Tripura, PW-5 who had multiple lacerated injury over his body. In the cross examination, she did not deviate from what she had stated in her examination-in-chief but she had stated that all the three persons were conscious. Apart Shyama Charan she also gave treatment to Kusumti Tripura.

42. PW-10, Santosh Shil being the Officer-in-Charge of Baikhora P.S. recorded the FIR having received the written ejahar from PW-1 whereas PW-11, Swapan Sarkar is the Investigating Officer.

43. PW-11, Swapan Sarkar has stated that having received the information which has been entered in the GD No. 741 as stated he had rushed to the place of occurrence and found one person in an unconscious state. He had arranged his transportation to the hospital. He has categorically stated that he had seized from the place of occurrence three sticks and the bloodstained earth and recorded the statements of Khokan Patari, Kalikrishna Tripura and Manoj Tripura. From their statement, the names of Patirai Tripura, Karuna Tripura, Punniram Tripura and Srimanta Tripura had been revealed. In this regard, the defence did not cross-examine Kalikrishna. He raided their houses. But "they were not available". He continued to record the evidence of Page 34 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 the witnesses and thereafter handed over the investigation to PW-

12.

44. PW-12, Madhu Sudhan Chakma has admitted in the cross examination that Shyama Charan, Kalikrishna and Kusum were close relatives. He has categorically stated that the name in the ejahar "is Anju". He admitted that he had no occasion to make any attempt for recording dying declaration of the deceased person and none of the witnesses had stated to him that he saw the incident in the electric light and hence he did not direct the investigation to find out whether there was electricity line etc. Later on, on completion of investigation, he submitted the charge- sheet against the appellants.

45. PW-13, Sajal Dey conducted the inquest and introduced the report (Exbt. 8) in the evidence. As noticed, Sri Narayan Tripura DW-1, even though a cited witness in the charge- sheet, was not examined by the prosecution. He has stated in the examination-in-chief that at that time of occurrence there was no electricity in the shop and a lantern was being used. Around 20/30 tribal and Bengali people were in the shop purchasing commodities. He has denied to have seen Shyama Charan Tripura, Kalicharan Tripura, Kusum Tripura and Mana Kumar in the shop. He has also denied to disclose the name of the persons who were in the shop. He did not disclose any other particulars.

46. It is to be noted that the prosecution witnesses were examined and cross-examined thrice as the trial could not be completed in a single go as the accused persons could not be Page 35 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 produced for facing the trial. But incidentally their examination-in- chief and cross examination in every episode of trial are strikingly uniform and as such, this court has preferred to refer the evidence as recorded in ST 39 (ST/B) 2012 [related to Crl A J. No. 16 of 2013].

47. The fundamental approach for appreciating the evidence of a witness is that if the evidence is read as a whole appears to form a ring of truth, once that impression is found it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in views the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters, not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error by the Investigating Officer not going to the root of the matter would not oridinarily permit rejection of the evidence as a whole. It has been often stated that usually the appellate court shall attach due weight to the appreciation of evidence by the trial court as that court had the benefit of seeing at demeanour of the witnesses. Unless the reasons are so persuasive that the trial court appreciation is to be interfered with, minor omissions in the police statement are never considered to be fatal. It has been observed by the apex court in Krishna Master (supra) that the Page 36 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 prosecution evidence may suffer from the inconsistency here and discrepancies there but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the deposition of witnesses there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Curt to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case.

48. From the evidence of PW-11 it appears that at about 6.45 hrs. On 21.10.2007 he received one telephonic information from one Kamal Sarkar and there was an incident in which Krishna Tripura had sustained grievous injury and he was lying near the shop of Khokan Patari at Balirbari. He entered in the GDE No. 741. Even the defence did not make any attempt to call for the said GD Page 37 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 Entry for admitting its content in the evidence. Thus, the court which did not exercise its power to call, was not allowed to see the content in the GDE. In the circumstances it will be difficult to hold that the written ejahar (Exbt.1) is hit by the provisions of Section

162. In Tukan Sharma (supra) the GD Entry was admitted in the evidence and on examination of its content it was held that the subsequent ejahar was hit by Section 162 of the Cr.P.C.

49. It has been noticed by us that the assault begin at a place nearby a Banyan tree (shown by 'A' in the handsketch map) and it continued to the shop of PW-2 (shown by 'B' in the handsketch map). There are two sets of witnesses. One set saw the occurrence from a very close quarter at the first place of occurrence and the other set of witness saw the said occurrence from the shop of PW-2. PW-1 & PW-3 was in the close quarters of the deceased when they were attacked by the appellants. Somehow PW-1 and PW-3 saved their life, but the deceased could not as he was severely injured by sharp edged and pointed weapons. So far the position of Kusumti Tripura is concerned, it is turned out to be a bit doubtful as she herself has stated that she saw the occurrence from the shop of PW-2. The other witnesses, viz. PW-2, PW-4 and PW-5, have as well witnessed the occurrence from the close quarter as they saw the appellants or some of them were beating the deceased or assaulting on his person, nearby the shop of PW-2.

50. There cannot be any amount of doubt that there are some incongruities when the testimonies are collated but those Page 38 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 according to the considered opinion of this court cannot be held striking fatally at the substratum of the case. Filing of the written ejahar within about 2 hrs. by PW-1 giving the names of the assailants itself shows the presence of PW-1 in the place of occurrence. The lapse of the Investigating Officer in recording the statements of the witnesses may not all the time be used to throw out the prosecution case when a conjoint reading enables the court to infer a ring of truth.

51. The reference of Shahid Khan (supra) would not support the case of the appellants inasmuch as in that case one eye-witness filed the first information to the police station without disclosing the names of the assailants, but later on that witness had disclosed the name of the assailants. In this case, PW-1 at the first instance and within a shortest possible time had disclosed the name of the assailants.

52. Mr. Dutta, learned counsel has strenuously argued that lathis which were seized from the place of occurrence were not sent for forensic examination. We have checked the seizure list and found that nowhere it is mentioned that lathis were blood- stained or with any mark. Thus, that cannot be treated as a serious infirmity in the prosecution case when there is adequate ocular evidence substantiating the prosecution case.

53. So far the issue of non examination of the shopkeepers is concerned, this court finds that there is no evidence that at the time of occurrence those shops were open or the shopkeepers were seen nearby the crime-scene. Even DW-1 Page 39 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 did not disclose their names, though his presence has been sought to be proved by the defence. Therefore, since their presence has not been established at all, the aspect of their examination cannot surface as material in the case in hand. The aspect of identification of the appellants by the witnesses has been seriously stressed by the counsel for the appellants. What they intended to impress upon this court is that there was no visibility and without the source of artificial light, the identification of the assailants is improbable. As there is no reliable evidence about the source of artificial light, except the statements made by PW-3 that he saw the accused persons A7, A8, A9, A2, A1 and A3 while striking the victim by a lathi by an electric light in the shop of PW-2, identification cannot be accepted.

54. PW-11 has confirmed clearly that none of the witnesses stated to him that they saw the occurrence in the electric light and as such, he did not direct his investigation towards that end. There is no reliable evidence as such about the source of light. Moreover, PW- 1 and 3 have clearly stated that the time of occurrence was dusk. The dusk means twilight. It does not denote complete darkness. It is a common knowledge that in this part of the country twilight continues about an hour after the sunset.

55. PW-4, Mana Krishna Tripura in his cross examination has clearly stated that it was evening and the place where the incident took place was dark. But there was no cross examination as to the visibility. PW-1 was one of the victims of the assault and Page 40 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 had seen the occurrence from the blank range and he had identified the appellants viz. A6, A4, A8, A9, A7, A2, A3, A5 and A1 to have assaulted Krishna Charan Tripura by dao, lathi and knife. He was assaulted by A6, A9 and A8 by lathi. He had also asserted the presence of Kali Krishna Tripura (PW-3) and Kusumti Tripura (PW-7) along with him. What he has stated in the cross- examination about the visibility appears to be truthful as he has stated that it was dusk when the incident took place. The said unchallenged statement of PW-11 would corroborate the means of visibility as he has stated that he received the information at 18.45 hrs.

56. In the ejahar, PW-1 had stated that it was about 6.30 when the occurrence took place. Thus we can infer that there was visibility by way of diffused light of twilight. Not only from the close-quarters but also from some distance the transaction of crime could be witnessed. Moreover, the assailants were from the same village. Even the so called darkness has its visibility. The statement of PW-3 that he saw the assailants from the electric light of the shop of PW-2 may create some confusion about the visibility but this is an incident of over-enthusiasm. May be, there was an electric light but visibility through the diffused light of the twilight cannot be ruled out. PW-3 has supported the statement of PW-1, but he has stated that though Anju Mog Chowdhury was there he did not have any weapon. He has categorically stated that Krishna was attacked by all of them. He has further stated that A6 gave a blow on the deceased by a dao whereas A4 Page 41 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 stabbed Krishna Tripura by knife. He has further stated that other appellants had beaten the deceased by lathi but Anju Mog Chowdhury did not do any overt-act and he had no weapon. But PW-1 had stated that Anju had lathi in his hand.

57. Thus, we are of the considered opinion that having regard to the testimony of PW-4 and PW-5, the finding of the trial court cannot be faulted with. Even PW-7 had stated in the trial that all the appellants and one Punniram Tripura assaulted her husband with dao, lathi and dagger. He collapsed there. Her statement could not be affected by way of cross examination. Moreover, the medical evidence by PW-8 and PW-9 have supported the prosecution story.

58. What we have gathered from the appreciation of evidence is that an unlawful assembly was formed by the appellants and one Punniram Tripura who however has not faced the trial as yet and thus, this observation will have no impact on his trial, if any. So far the objection as raised in respect of drawing inference of unlawful assembly, this court is of the view that the view expressed by the apex court in Nagarjit Ahir (supra) cannot be applied in this present context inasmuch as the view is that it may be safe to convict only those persons against whom overt-act is alleged, lest some innocence spectators may got involved. The apex court was not oblivious to mention in Nagarjit Ahir (supra) that that is rule of caution not a rule of law. Rather, the law as laid down in Mahmood (supra) is comparatively definite for application. Thus this court has preferred to Mahmood (supra) Page 42 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014 which has laid down that once a membership of unlawful assembly is established, it is not incumbent on the prosecution to establish any specific overt-act to any of the accused for fastening him with the criminal liability by the aid of Section 149 of the IPC. Commission of overt-act by each member of the unlawful assembly is not necessary. We are satisfied on conjoint reading of the eye-witness account that membership of unlawful assembly has quite satisfactorily been established by the prosecution.

59. In Gangadhar Behera and Ors v. State of Orissa reported in (2002), 8 SCC 381, this Court has held that :

"Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident."

[Emphasis added] Thus, we hold that unlawful assembly formed by the appellants and their accomplice has been well proved by the prosecution. Even DW-1 did not say anything contrary to the prosecution case in this respect. Thus, there is no infirmity in the inference of the judgments in question.

Page 43 of 44 CRL A (J) 16 OF 2013 CRL A (J) 36 OF 2014 CRL A (J) 37 OF 2014

60. Before parting, we may note our impression that DW- 1 has been introduced for demolishing the prosecution case on the point of identification. But he did not appear trustworthy inasmuch as on keen appreciation it would irresistibly surface that he was not un-veiling the truth in the trial.

Since the sentences shall run concurrently, we did not find it apposite to appreciate their proportionality.

Having held so, the appeals are dismissed.

Send down the LCRs forthwith.

                         JUDGE                              CHIEF JUSTICE




Sabyasachi.B




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