Tripura High Court
Sri Amitava Ghosh @ Amit Ghosh vs The State Of Tripura on 31 October, 2017
Bench: Chief Justice, S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
Crl.A.(J) No.46 of 2014
Sri Amitava Ghosh @ Amit Ghosh,
son of late Monoranjan Ghosh,
resident of Town Pratapgarh,
P.S. West Agartala, District : West Tripura,
now undergoing imprisonment at
Kedriya Sanshodhanagar, Bishalgarh, District : Sepahijala
..................... Appellant
-Vs-
The State of Tripura
..................... Respondent
BEFORE THE HON‟BLE THE CHIEF JUSTICE THE HON‟BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. P.K. Biswas, Senior Advocate Mr. S. Bhattacharjee, Advocate Ms. P. Mog, Advocate Mr. P. Majumder, Advocate For the respondent : Mr. R.C. Debnath, Addl. P.P. Date of hearing : 11.04.2017 Date of judgment & order : 31.10.2017 Whether fit for reporting : Yes No √ JUDGMENT & ORDER (Talapatra J.) This is an appeal under Section 374(2) of the Cr.P.C. by the convict, hereinafter referred to as „the appellant‟, questioning the legality of the judgment of conviction dated 12.09.2014 and order of Crl.A.(J) No.46 of 2014 Page 1 of 56 sentence dated 15.09.2014 delivered in S.T. No.49/2000 by the Additional Sessions Judge, West Tripura, Agartala, Court No.3. By the said judgment, the appellant has been convicted under Section 302 read with Section 34 of the IPC and also under Section 448 read with Section 34 of the IPC. The appellant has been sentenced to suffer rigorous imprisonment (RI) for life and to pay fine of `5,000, in default to suffer further RI for 6(six) months for committing the offence punishable under Section 302 read with Section 34 of the IPC, whereas the appellant has been sentenced to suffer rigorous imprisonment (RI) for 6(six) months for committing the offence punishable under Section 448 read with Section 34 of the IPC and, both the sentences shall run concurrently.
2. The genesis of the prosecution is rooted in the oral ejahar (Exbt.1) recorded by one Sri Debashis Banerjee (PW.12), Sub- Inspector of Police, West Agartala Police Station, having informed by one Sri Sankar Kumar Gon (PW.1), disclosing that on 03.10.1997 at about 7:30 am when he was in their firewood shop situated at Golbazar, he received information from one Ajoy Pal that there were blood-stains in front of their house and the door was closed. Having received the said information he rushed to his father-in-law‟s house and come alongwith him to their house where they found the father of the informant, namely Anil Kumar Gon was lying dead on the floor of their eastern hut in bleeding state. There were several hacking injuries on his head, face and hands and, some parts of his wearal apparels Crl.A.(J) No.46 of 2014 Page 2 of 56 (dhuti) were found burnt. In that ejahar PW.1 disclosed further that on 02.10.1997 at about 5:30 pm his elder brother, Shibu Kumar Gon had a quarrel and scuffle with Amit Ghosh (the appellant herein) and at about 7:00 pm the appellant and few others attacked their house. His elder brother informed that incident to him. In view of that the informant suspected that the appellant and his associates were involved in the murder of his father.
3. Based on the said ejahar dated 03.10.1997, West Agartala P.S. Case No.210/97 under Section 302/34 was registered and taken up for investigation. On completion of investigation the final police report was filed chargesheeting the appellant and others under Section 302 read with Section 34 of the IPC against the appellant and 4(four) others showing all the accused persons as absconders, as would be apparent from the chargesheet that was filed by Sri Bimalangshu Das, Deputy Superintendent of Police, Central (PW.14).
4. The case was committed to the court of the Sessions Judge, West Tripura, Agartala and in the course of time the said case was transferred to the court of the Additional Sessions Judge, West Tripura, Agartala, Court No.3. Against the appellant and 4(four) other accused persons, namely Swapan Karmakar who turned approver, Prabhat Sarkar, Sudip Chowdhury alias Tultul and Ashok Dhar, the charge was framed under Section 448 read with Section 34 of the IPC and under Section 302 read with Section 34 of the IPC. It is apparent that a separate charge was framed by the said Additional Sessions Crl.A.(J) No.46 of 2014 Page 3 of 56 Judge against the appellant for committing murder of said Anil Kumar Gon. It appears that all the accused persons including the appellant pleaded not guilty and claimed to be tried.
5. In order to substantiate the charge, the prosecution adduced as many as 15(fifteen) witnesses, but the appellant and one Swapan Karmakar, at the time of recording evidence had absconded and did not deliberately participate in the trial. However, Swapan Karmakar subsequently surrendered in the trial court and had submitted a prayer through the Superintendent, Central Jail, Agartala, stating that he would narrate before the court truly how the said offence was committed. Accordingly his statement was recorded under Section 306 of the Cr.P.C. on observance of the provisions of Section 307 of the Cr.P.C. Thus, the said accused person became the approver. Later on, the appellant was arrested by the police and thus, the trial against him commenced.
6. It has been observed in para 7 of the judgment dated 28.02.2011 delivered in S.T.49(WT/A)/2000 by the Additional Sessions Judge, West Tripura, Agartala, Court No.3 that the defence counsel engaged by the appellant refused to conduct his case and thereafter he approached the trial court for engaging a legal aid counsel at the expenses of the State. The trial court had engaged one counsel having a suitable standing in the Bar, but after few days he had also refused to conduct the case. A few senior counsel were approached, but they, for their personal reasons declined to take charge of the case. When Crl.A.(J) No.46 of 2014 Page 4 of 56 another counsel was engaged on his agreement, but after few days he had also prayed for his discharge from the engagement. Thereafter, another counsel having engaged had also withdrawn from the engagement. Again another counsel was engaged, but he expressed his inability. Thereafter, the trial court approached the Tripura Bar Association for suggesting names of some counsel having outstanding performance so that they can be engaged for defence of the appellant. Even the Registrar of the Gauhati High Court was informed about this development. Thereafter, the accused was asked to engage his own counsel, but he expressed his inability in this regard. Having found no other alternative the trial proceeded. In para 7 of the said judgment dated 28.02.2011, it has been observed as under:
"The fact remains that there was no lawyer to defend his case and as such during cross-examination of the prosecution witnesses the accused was personally allowed to cross-examine the witness to which he declined to cross- examine the witness."
Finally, following all procedures, the appellant was convicted under Section 448/302 read with Section 34 of the IPC by the said judgment dated 28.02.2011 and pursuant thereto the appellant was sentenced to suffer imprisonment for life and to pay fine of `5,000, in default to suffer further rigorous imprisonment for 3(three) months for committing the offence punishable under Section 302 read with Section 34 of the IPC. However, the appellant was not given any sentence under Section 448 read with Section 34 of the IPC. Crl.A.(J) No.46 of 2014 Page 5 of 56
7. The appellant herein filed an appeal against the said judgment dated 28.02.2011 in this court, being Cr.A.(J) No.42/2013. By the judgment and order dated 30.01.2014 this court has observed that:
"The lawyers must conduct themselves in accordance with the standards laid down by their own apex body, the Bar Council of India. If the Presiding Officer of a Court calls upon a member of the bar to assist the court, we would hope and expect that such request of the court is never refused except on rare occasions where for personal reasons the counsel may not be able to appear in the matter. Otherwise, it is the responsibility and duty of the counsel to appear for the client."
Thereafter, having referred Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, Patna, reported in (1980) 1 SCC 108 and Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid Vs. State of Maharashtra, reported in (2012) 9 SCC 1, this court has further observed that:
"Every person, accused of a crime is entitled to proper legal aid. This is the mandate of the law also. Therefore, we are indeed saddened by the fact that in Agartala no counsel was willing to represent the accused leading to a situation that the Court convicted him without giving him proper legal aid."
Having referred another decision of this court in Plaban Bhattacharjee & Ors. Vs. State of Tripura (judgment dated 15.06.2013 delivered in Crl.A. No.65/2007), it was further observed that no person can be permitted to go unrepresented in a criminal matter. Thereafter, the said appeal was allowed with the following observation:
Crl.A.(J) No.46 of 2014 Page 6 of 56
"Having set aside the judgment and sentence, we remand the case to the Addl. Sessions Judge concerned, who is directed to proceed with the trial de novo from the stage of charge and he shall record the evidence again. Since the trial is an old one and the appellant has been behind bars for eight years, we direct that if necessary the trial may be conducted on day to day basis and it should be completed latest by 31st July, 2014."
8. As a result, the trial started de novo from the stage of charge and finally the trial court passed the impugned judgment of conviction and sentence. It is further apparent that though the depositions recorded earlier are part of the record, but while passing the impugned judgment the trial court did not place any reliance on those depositions or the evidence as recorded earlier to the said judgment whereby a de novo trial was directed.
9. From the order dated 19.05.2014 passed by the Addl. Sessions Judge, West Tripura, Agartala, it appears that he issued fresh summons to all the witnesses and fixed the calendar for examination of the witnesses accordingly. Almost on a regular basis till 24.06.2014 the witnesses were examined, but for non-availability of one witness the calendar/schedule of examination of the remaining witnesses had to be little bit changed and it again commenced from 16.07.2014. Since the cited witnesses could not be examined within the timeframe as laid by this court, the Additional Sessions Judge prayed for extension of time to this court and this court extended time for completion of the trial by 26.09.2014. On 16.08.2014 again the examination of witnesses commenced and, finally the examination was completed on 29.08.2014. By the order dated 01.09.2014 the trial Crl.A.(J) No.46 of 2014 Page 7 of 56 court had observed that, there are adequate incriminating materials against the accused and hence the accused is not entitled to get the benefit as provided under Section 232 of the Cr.P.C. Prior to the observation made by the said order dated 01.09.2014 the appellant was examined under Section 313 of the Cr.P.C. with reference to the incriminating materials appearing in the prosecution evidence. On that very day itself the defence counsel made a petition under Section 311 of the Cr.P.C. for recalling PW.11, Swapan Karmakar, the approver. But the said petition was rejected as the petitioner did not lay the specific questions which were sought to be put to the said witness. After the argument was complete the impugned judgment of conviction and sentence was passed by the trial court.
10. It is to be noted that under the segmented trial, another set of the accused persons in West Agartala P.S. Case No.210/1997 under Section 302/34 of the IPC [corresponding to S.T. No.49(WT-A) of 2000] was tried. They were Sudip alias Tultul Chowdhury, Ashok Dhar and Prabhat Sarkar. The appellant and Swapan Karmakar, at the relevant point of time as stated earlier, were absconding. By the judgment dated 21.07.2003 delivered in S.T. No.49(WT/A)/2000, out of the three accused persons, Sudip alias Tultul Chowdhury and Ashok Dhar were convicted under Section 302 read with Section 34 of the IPC and also under Section 448 read with Section 34 of the IPC. The other accused person, namely Prabhat Sarkar was acquitted on benefit of doubt. As noted, another co-accused, namely Swapan Karmakar who Crl.A.(J) No.46 of 2014 Page 8 of 56 turned approver, has been also discharged by granting pardon. In the said judgment the trial court has observed as under:
"11. Now I like to discuss the evidence of approver Swapan Karmakar who has been examined in this case as PW.11. It is in his evidence that when Amit was saying "where is Shibu" and called the deceased at that point of time the father of PW.2 came out from the hut and at that time Amit gave a stroke over his head with a dao and forced him to take entry inside the hut and others were standing in the varandah. According to him accused Amit brought four daos from his house and kept one dao i.e. to him, Tultul and Ashok Dhar and told them to follow him (Amit Ghosh) to the house of PW.2 and they reached at about 6.45 p.m. and at that time deceased was sitting in his varandah. Amit asked him where Shibu is. Anil Gon replied that it was not known to him. Amit then used filthy language and told that since his son was not found he would be killed and gave dao stroke and then Anil Gon entered inside the hut. Amit also entered inside the hut and they three remained standing in front of the door so that, Anil Gon could not come out from the room. It is also in his evidence that at that point of time accused Ashok Dhar told that if anybody comes out from the room then he would be killed. PW.11 in his deposition did not involve accused Prabhat Sarkar. According to approver they took entrance in the house of deceased at 6.45 p.m. and after operation they left the house at about 7.30 p.m. that means he has corroborated the evidence of PW.3 Sanjoy Paul on this point. PW.11 also spoke clearly about the involvement of the accused persons namely, Tultul and Ashok Dhar. According to me he gave a true account of the whole incident."
It appears further that the said judgment dated 21.07.2003 was challenged by Sudip alias Tultul Chowdhury and Ashok Dhar by filing 2(two) separate appeals respectively, being Criminal Appeal No.53/2003 and Criminal Appeal No.71/2003. By the common judgment and order dated 30.03.2010 those accused persons were acquitted from the charge on benefit of doubt.
11. In the perspective as narrated above, a de novo trial from the stage of charge commenced in terms of the judgment and order Crl.A.(J) No.46 of 2014 Page 9 of 56 dated 30.01.2014. In the said trial, the charge was again framed against the appellant afresh under Section 448 read with Section 34 of the IPC and Section 302 read with Section 34 of the IPC on 19.05.2014. On the same date a separate charge was framed against the appellant under Section 302 of the IPC.
The appellant not guilty and claimed to be tried.
12. In order to substantiate the charge, the prosecution adduced fresh evidence. They have examined as many as 14 witnesses afresh in addition to make reference to the recorded depositions in the trials of the other co-accuseds in S.T.49(WT/A) of 2000 when there was none to cross-examine for the appellant. For obvious reasons the depositions of PWs.1 to 15 as recorded in S.T.49(WT/A) of 2000 from 04.12.2000 to 01.02.2011 cannot be relied as the substantive evidence. However, if the defence for purpose of contradiction referred those previous statements for purpose of contradictions those would be relevant.
13. After recording the evidence afresh the appellant was examined under Section 313 of the Cr.P.C. on the incriminating materials those surfaced in the trial. In the said examination the appellant categorically denied his involvement in the commission of the murder of one Anil Kumar Gon on 02.10.1997 at about 1900 hours at Town Pratapgarh, Kamarpatti under West Agartala police station. He has further submitted that he has been falsely framed in the case. Crl.A.(J) No.46 of 2014 Page 10 of 56 From the defence no evidence has been laid and the defence case in short was of denial.
14. On appreciation of the evidence, the Additional Sessions Judge, West Tripura, Agartala, Court No.3, hereinafter referred to as „the trial court‟, has convicted the appellant under Section 448/302 read with Section 34 of the IPC and sentenced him to suffer rigorous imprisonment for life and to pay fine of `5,000, in default of payment of fine, to suffer further rigorous imprisonment for 6(six) months for committing the offence punishable under Section 302 read with Section 34 of the IPC and, the appellant has been further sentenced to suffer rigorous imprisonment for 6(six) months for committing the offence punishable under Section 448 read with Section 34 of the IPC, with a direction that both the sentences shall run concurrently and the period of detention undergone by the appellant shall be set-off in terms of the provision of Section 428 of the Cr.P.C.
15. The trial court, relying on the post mortem examination report introduced by PW.7, has observed that the deceased suffered grievous injuries and his death was caused by shock and haemorrhage followed by cardio-respiratory failure. The death was homicidal in nature and the injuries as received were sufficient to cause death. That apart, in the post mortem report it has been clearly stated that the injuries could have been caused by dao (a heavy sharp-cutting weapon). Thus, the trial court has observed that the death of Anil Kumar Gon was a case of murder. The trial court has categorically Crl.A.(J) No.46 of 2014 Page 11 of 56 observed that the defence has not denied as regards the cause of death inasmuch as the defence case was that that the appellant was not involved in the commission of the offence. The trial court has observed in para 16 of the said judgment as under:
"From the testimony of PW.1 as well as PW.12 I find that while on 3.10.1997 PW.1 went to his house he found the police has already arrived in his house and he also find other people in his house but he did not find his brother Shibu Gon. So, I find there is a corroborative evidence that Shibu Gon spent the 2nd night in his friend‟s house also. From the testimonies of PW.1 and PW.12, I also find that PW.1 gave an oral complaint to PW.12 in his house, which is reduced into writing. From the testimony of PW.12, I also find that he forwarded the ejahar to the P.S. for registering the case. Since the offence is cognizable in nature, he himself took up the charge of investigation, arranged for taking snap of the deceased on the spot. He prepared the inquest report in presence of the witnesses of the dead body of the deceased. He also prepared the dead body challan and the dead body was forwarded to the IGM hospital for conducting the postmortem examination, through the Constable namely Haralal Sarkar (PW.8). Thereafter he prepared the hand sketch map with separate index of the P.O. He also seized one half sleeve punjabi on which, there was blood stain and also one ganji with blood stain by a seizure list, in presence of the witnesses. PW.12 also stated that on 3.10.1997 at 0935 hours, he received a telephonic information to the P.S. to the effect that, one Anil Gon of Central Road Extension, has been murdered in his own house, and the dead body was lying in his house, but informer did not disclose his identity of his telephone. The information was entered into the GD book vide No.121 dated 3.10.1997. Accordingly, he along with the staff rushed to the house of the deceased to verify the information."
The trial court has, thereafter on elaborate discussion of the evidence of the approver (PW.11) found his testimony reliable and observed again as under:
"If we appreciate the evidence of Swapan Karmakar by the touch stone of test discussed above, it appears to me that he is a witness of credence for which I fully rely on his testimony and there is no scope to draw any presumption against him about his credibility. From this view point of rule of prudence the approver is found worthy of credit."Crl.A.(J) No.46 of 2014 Page 12 of 56
16. The trial court has come to a definite conclusion that the appellant had assaulted Shibu Kumar Gon (PW.2) on 02.10.1997 in the evening in front of the shop of Dilip Saha near hanging bridge as PW.2 denied to admit that his service was facilitated by the appellant. PW.2 in retaliation gave blows to the appellant and the appellant fell down on the ground and thereby the appellant became extremely angry with PW.2. Since the appellant and others did not find Shibu Kumar Gon in his house, finding his father Anil Kumar Gon, the appellant gave dao blow on Anil Kumar Gon first in the varandah of the eastern viti hut and thereafter he entered inside the hut and gave blows indiscriminately with dao and that caused the death of Anil Kumar Gon.
17. Mr. P.K. Biswas, learned senior counsel appearing for the appellant has strenuously argued that on a fresh scrutiny of the evidence it would be apparent that the prosecution has failed to establish the charge against the appellant beyond reasonable doubt. The trial court has failed to appreciate the evidence, particularly the oral evidence. The trial court has appreciated the evidence in a manner to arrive at the premeditated inference based on the impression. Mr. Biswas, learned senior counsel has submitted that the statement of the approver cannot be believed being fraught by serious contradictions with the statement recorded under Section 307 of the Cr.P.C. That apart, the vital witnesses had been examined belatedly and as such their credence is bound to be slighted. Finally, he has submitted that Crl.A.(J) No.46 of 2014 Page 13 of 56 the so called extrajudicial confession as made by the appellant to Tulsi Saha (PW.10) cannot be relied inasmuch as there is no explanation for the doubtful circumstances. Mr. Biswas, learned senior counsel, in order to buttress his submission, has relied on few decisions of the apex court, particularly the objections he has unfolded before this court in the course of hearing.
18. While emphasizing the point that PW.2 cannot be relied on as he went missing two days after witnessing that the appellant and others had given dao blows on his father, Mr. Biswas, learned senior counsel has relied on a decision of the apex court in The State of Tamil Nadu rep. by Secretary to Government Vs. Subair alies Mohamed Subair & Ors., reported in 2009 AIR (SCW) 438, where the apex court has observed as follows:
"It is seen that PWs 1 and 2 stated that they had left the injured in lurch and had disappeared from the scene making deceased to cringe an auto driver to take him to hospital. Would any close friend of a person involved in the movement allow such a thing to happen to him is the question looming large and there is no explanation for it. Further, it is curious to note that both PWs 1 and 2 have stated that they did not inform about the occurrence to anybody till they were asked by the police in the mid night of the date of occurrence. The conduct of PWs 1 and 2 is un-natural and unbelievable and their presence at the time of occurrence is doubtful and the testimonies of PWs 1 and 2 cannot be accepted."
[Emphasis supplied]
19. In the same line, Mr. Biswas, learned senior counsel has relied another decision of the apex court in Surajit Sarkar Vs. State of West Bengal, reported in (2013) 2 SCC 146, where the apex court had occasion to observe as under:
Crl.A.(J) No.46 of 2014 Page 14 of 56
38. The investigations into the crime do leave much to be desired as pointed out by learned counsel for Surajit Sarkar.
The conduct of PW-7 Sanatan Sarkar was quite unnatural and a little odd and ought to have been looked into by the police. This witness was a neighbour of the victim and it appears from his testimony that after he witnessed the attack on Gour Chandra Sarkar, he did not bother to inform the victim's family, or anybody else and simply went home. This witness further deposed that he came to know of the death of Gour Chandra Sarkar only the next morning.
39. We also find it quite strange that the investigating officer examined PW 7 Sanatan Sarkar only on 10-5-1992, that is, after a gap of more than a month and a half of the incident. One charitable explanation for this delay is that PW 8 Achintya Sarkar did not mention the presence of PW 7 Sanatan Sarkar at the place of occurrence. This possibility gave rise to another submission by learned counsel for the Surajit Sarkar that perhaps PW 7 Sanatan Sarkar was not present at the place of occurrence.
40. Learned counsel for Surajit Sarkar relied upon Ganesh Bhavan Patel v. State of Maharashtra : (1978) 4 SCC 371 to contend that the delayed examination of PW 7 Sanatan Sarkar throws some doubt on his presence at the place of occurrence. In that case, there was a delay of a few hours by the investigating officer in examining the eyewitnesses and it was observed: (SCC p.376, para 15) "15. .... Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced."
41. We are concerned with a case where there is a delay of a month and a half in examining an eyewitness. Perhaps what can charitably be said in defence of the investigating officer in the present case, unlike in Ganesh Bhavan Patel, is that it was not mentioned to him that PW 7 Sanatan Sarkar was an eyewitness. Even so, it reflects very poorly on the investigations.
[Emphasis supplied]
20. According to the appellant, the conduct of PW.2 is so unnatural for keeping long silence and, in this respect Mr. Biswas, Crl.A.(J) No.46 of 2014 Page 15 of 56 learned senior counsel has relied on a decision of the apex court in State of Karnataka Vs. Venkatesh & Ors., reported in 1992 Supp (1) SCC 539, where the apex court has observed as under:
3. We have perused the evidence of all the witnesses referred to above. They do not inspire any confidence at all.
The denial by PW.23, Madadevamma, of having had any illicit intimacy with the deceased coupled with the fact that PW.15, Cheluvamma, the ace witness of the prosecution, having not disclosed the information at the earliest opportunity to anyone till November 10, 1978, though the alleged murder took place on the night of November 8, 1978, has created serious doubts about the genuineness of the prosecution case. Since, the Sub-Inspector admitted that he had not even visited the house of any one of the accused- respondents on November 9, 1978 to arrest them, the failure of the accused-respondents to appear before the police cannot give rise to any inference of their guilt and therefore the alleged circumstance of absconding was not rightly used by the learned Sessions Judge against the accused- respondents. The conduct of PW.8, Madaiah, PW.14, Javariah and PW.25, Cheluvaraju, is so unnatural that it would not be safe to place any reliance on their testimony. No explanation, much less a satisfactory one, has been given by the prosecution for their long silence.
[Emphasis supplied]
21. On the aspect of extrajudicial confession made by PW.10, Mr. Biswas, learned senior counsel has referred a decision of the Gauhati High Court in Premananda Namasudra & Anr. Vs. State of Tripura & Ors., reported in 2011 (4) GLT 1, where the Gauhati High Court has observed as under:
"In view of the said statement made by PW 6, it is found that PW 6 was not confident enough to say that his son i.e PW 20 had made any confession or discloser involving himself, Naba Kumar Debbarma and Dayal Jamatia in connection with the assassination of the Minister. Reliance can be placed on extra-judicial confession, only when it is found to be clear, unambiguous, and trustworthy and consistent.
165. In the case of Heramba Brahma & Anr. vs. State of Assam, reported in AIR 1982 SC 1595, the Supreme Court observed-Crl.A.(J) No.46 of 2014 Page 16 of 56
"in order to accept the extra-judicial confession as reliable evidence, it must pass the test of reproduction of exact words, the reason or motive for confession and person selected on whom confidence is reposed".
166. In the case of C.K. Raveendran vs. State of Kerala, reported in AIR 2000 SC 369, the Supreme Court observed that:
"in order to rely upon the extra-judicial confession, the exact words or even the words as nearly as possible have to be reproduced by the witness before whom such statement is made".
167. Therefore, in order to rely on the extra-judicial confession, such confession must be reproduced in the exact words, disclosed by the maker and the evidentiary value of such extra judicial confession depends on the credibility/reliability of the person, before whom such confession is made. That apart, it is also necessary to consider as to what is the compelling circumstance in making such confession. That apart, it must be voluntary, free from any threat and inducement. In the present case, the maker i.e PW 20 has categorically denied that he made any such statement. He clearly stated that he was threatened and induced by his father i.e PW 6 to become an approver and that he had put his signature, on the application, which he could not read, without knowing the contents of the same and under the impression that the same was an application for his bail."
[Emphasis supplied]
22. In the same line, Mr. Biswas, learned senior counsel has further relied on a decision of the apex court in Roopsena Khatun Vs. State of West Bengal, reported in AIR 2011 SC 2256, where it has been enunciated as under:
"The second circumstance is about the extra-judicial confession. We can imagine the plight of a poor orphan girl who is described as a frock wearing girl by some of the witnesses and was at the mercy of her grand-mother with whom she was living. The evidence of the extra-judicial confession is of extremely weak kind. In this case, the exact words of the accused have not been uttered by any of the witnesses. Again, if there was any suspicion against the accused, the whole village would have pounced upon her and cursed her of having committed the murder. Under such circumstances, the so-called extra-judicial confession made to the witnesses even if they were more than three, would Crl.A.(J) No.46 of 2014 Page 17 of 56 be of no consequence and we would not consider that as an incriminating evidence against the accused."
[Emphasis supplied]
23. Finally, Mr. P.K. Biswas, learned senior counsel has submitted that abscondence of the appellant cannot be used against him. In this regard he has reliedon a decision of the apex court in Bipin Kumar Mondal Vs. State of West Bengal, reported in (2010) 12 SCC 91, where the apex court has referred and reiterated the principle as enunciated in Matru Vs. State of U.P., reported in (1971) 2 SCC 75 and, observed as under:
27. In Matru Vs. State of U.P. : (1971) 2 SCC 75, this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under:
"19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."
[Emphasis added] Crl.A.(J) No.46 of 2014 Page 18 of 56
24. Mr. R.C. Debnath, learned Additional Public Prosecutor appearing for the State has made a general statement at the beginning that PW.2 is a eye witness of the account and he was being hounded by the appellant and his gang. After seeing that the appellant was giving deadly blows on the person of his father, PW.2 left the place of occurrence and met PW.1 and thereafter went on missing so that the appellant could not find him out. The element of extreme treat or fear cannot be excluded while getting an answer why PW.2 did not arrive immediately after the occurrence and made the statement to the police. Mr. Debnath, learned Addl. Public Prosecutor has urged this court to distinguish the factum of the statement and the factum of truth, else there would be failure of justice. According to him, even the explanation can be gathered by the court from the transactions and the circumstances related thereto.
25. In order to repeal the submission of Mr. Biswas, learned senior counsel appearing for the appellant, Mr. Debnath, learned Addl. Public Prosecutor has categorically submitted that the trial court did not commit any error by relying on the statement of the approver (PW.11) inasmuch as there is no fatal contradiction between the statement of PW.11 as recorded under Section 307 of the Cr.P.C. and his deposition made in the trial. Mr. Debnath, learned Addl. Public Prosecutor has fully supported the finding as returned by the trial court. He has further submitted that PWs.1 and 2 are the sons of the deceased whereas PWs.3 and 6 are the ocular witnesses who have Crl.A.(J) No.46 of 2014 Page 19 of 56 corroborated the prosecution case substantively whereas to PW.10, the appellant made the extrajudicial confession of murdering Anil Kumar Gon. That apart, Mr. Debnath, learned Addl. Public Prosecutor has pointed out the quarrel of PW.2 with the appellant and thereafter chase by the appellant with arms and collaborators to the house of PW.2 cannot but be perceived as generating an extreme fear and hence the testimony of PW.2 cannot be brushed aside casually. Immediately after the occurrence the appellant absconded and he surfaced much later. The statement of the approver has been corroborated on every part, particularly if the statement of PW.2 made in the trial is read together with PW.2‟s statement as recorded under Section 164(5) of the Cr.P.C. Even though the statement of PW.2 is sought to be contradicted, but none of the contradictions has been proved as the Investigating Officer was not asked to verify those statements. Mr. Debnath, learned Addl. Public Prosecutor has further submitted that the statements of PWs.3 and 6 have also corroborated the statement of PW.11. That apart, PW.6 has unwaveringly stated in the trial that he saw the blood-stain on the wearing apparel of the appellant when he was returning from the direction of the place of occurrence. Similarly, PW.7 has corroborated a part of the statement made by the approver (PW.11). So far the incidence of quarrel is concerned, it has been established by the evidence of PWs.1, 2 and
11. Crl.A.(J) No.46 of 2014 Page 20 of 56
26. Mr. Debnath, learned Addl. Public Prosecutor has further submitted that non-examination of any person named by the witnesses does not invariably weaken the prosecution case. The Investigating Officer has got the right to choose what evidence he would produce in support of the case. Unless it is demonstrated that a very vital witness is left out, no adverse inference can be drawn against the prosecution case. Mr. Debnath, learned Addl. Public Prosecutor has continued to submit that even if a part of the statement of witnesses is proved false, the entire statement for that reason cannot be disbelieved. According to him, the prosecution has proved the charge against the appellant beyond reasonable doubt. To buttress his submission, Mr. Debnath, learned Addl. Public Prosecutor has relied on few decisions of the apex court.
27. In Birendra Rai & Ors. Vs. State of Bihar, reported in AIR 2005 SC 1284, the apex court had occasion to observe as under:
"It is the case of the prosecution that no pellets were found. For this reason alone we cannot discard the case of the prosecution. If pellets were found at the place of occurrence it would have further strengthened the case of the prosecution, but in the absence of such evidence on has to rely upon the ocular evidence which if found reliable, may be acted upon. Unfortunately, in this case, despite the efforts of the prosecution, the investigating officer could not be examined as a witness. The seizure witness has also been declared hostile. There is really no corroborative evidence, except the circumstantial evidence to corroborate the version given by the witnesses. However, we find the eye witnesses to be straight forward and reliable. Being rustic villagers, there is no effort on their part to improve the case of the prosecution on the basis of imaginary facts. They have deposed in a straight forward manner, and there is a ring of truth in their testimony. We find them to be implicitly reliable.Crl.A.(J) No.46 of 2014 Page 21 of 56
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. More-over, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons.
12. It was then submitted that the investigating officer was not examined in this case and that has resulted in prejudice to the accused. Having gone through the evidence of witnesses and other material on record, we do not find that any prejudice has been caused to the defence by non- examination of the investigating officer. The mere fact that according to the seizure list a stick with blood stains and pellet marks was seized from the place of occurrence, would not advance this argument any further. The seizures have not been proved in this case because the investigating officer was not examined, and the seizure witness has turned hostile. We, therefore, ignore the seizures made and base our decision on the other evidence and the evidence of two eye witnesses, who have impressed us as truthful."
[Emphasis supplied] Mr. Debnath, learned Addl. Public Prosecutor, based on the said judgment, has submitted that the court shall separate the grain from the chaff. Its duty is to find out the truth, not to frustrate the truth by a doctrinaire approach.
28. Falsus in uno, falsus in omnibus has not received general acceptance in our country nor has this maxim has occupied the status of law. It is merely a rule of caution. In this regard, in Jakki alias Selvaraj & Anr. Vs. State, reported in 2007 AIR SCW 1327, the apex court has observed as under:
9. As noted above, stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW-13 to contend about desirability to throw out the entire prosecution case. In essence the prayer is to apply the Crl.A.(J) No.46 of 2014 Page 22 of 56 principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable.
Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and Anr. v. State of Punjab (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony was to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. [See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh (1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277)]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely Crl.A.(J) No.46 of 2014 Page 23 of 56 new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. [See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab (AIR 1975 SC 1962)]. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186).
10. Applying the principles set out above, it is clear that even when the testimony of a witness is discarded in part vis-a-vis some other co-accused persons, that cannot per se be the reason to discard his evidence in toto. As rightly observed by the trial Court and the High Court, the evidence of PW-13 has not been shakened in any manner though he was cross examined at length. Additionally, the trial Court and the High Court have found that the evidence of the doctor (PW-4) clearly shows existence of injuries in the manner described by PW-13 by weapons allegedly held by the appellants. In that view of the matter, the judgment of the High Court does not suffer from any infirmity. The appeal fails and is dismissed.
[Emphasis supplied]
29. Thereafter, Mr. Debnath, learned Public Prosecutor has placed a few decisions of the apex court on how to appreciate the evidence of an approver.
30. In Suresh Chandra Bahri Vs. State of Bihar etc., reported in 1995 Supp (1) SCC 80, the apex court had occasion to hold that:
Crl.A.(J) No.46 of 2014 Page 24 of 56
"The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness. Here in this connection it would be appropriate to make reference to the provisions of Section 133 of the Evidence Act which deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice, in other words, a guilty companion in crimes, shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read Section 133 of the Evidence Act with illustration (b) of Section 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in Section 133 illustration (b) to Section 114 of the Evidence Act lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars". A combine reading of the two provisions that is Section 133 and illustration (b) of Section 114 of Evidence Act go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to Section 133 a conviction is "not illegal or in other words not unlawful"
merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of Section 114 of the Evidence Act with a view to emphasise that the rule contained therein as well as in Section 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to Section 114 is placed in Chapter VII of Evidence Act while Section 133 is inserted in Chapter IX of the Act. The better course was to insert the illustration
(b) to Section 114 as an explanation or in any case as a proviso to Section 133 of the Act instead of their insertion at two different places and that too in different Chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to Section 114 provides a rule of caution to which the Courts, should Crl.A.(J) No.46 of 2014 Page 25 of 56 have regard. It is now-well Settled, by a long series of decisions that except in circumstances of special nature it is the duty of the Court to raise the presumption in Section 114, illustration (b) and the Legislature requires that the courts should make the natural presumption in that section as would be clear from the decisions which we shall discuss hereinafter.
[Emphasis supplied]
31. Thereafter, the apex court in Suresh Chandra Bahri (supra) has further observed as under:
44. In Bhiva Doulu Patil v. State of Maharashtra : AIR 1963 SC 599, this Court took the that the combined effect of Sections 133 and 114, illustration (b) may be stated as follows. According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. There should be corroboration of the approver in material particulars and qua each accused. Similar observations were made by this Court in Ram Narayan v. State of Rajasthan :
(1973) 3 SCC 805 in the following words:
"Section 133 expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of a accomplice. In other words this sector renders admissible such uncorroborated testimony. But this section has to be read along with illustration
(b) to Section 114. The latter section empowers the court to presume the existence of certain facts and the illustrations elucidate what the court may presume and make clear by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to given case before it. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of Section 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such Crl.A.(J) No.46 of 2014 Page 26 of 56 corroboration must be clearly present to the mind of the Judge."
45. Further in Ravinder Singh v. State of Haryana : (1975) 3 SCC 742, this Court while considering the approver's testimony within the meaning of Section 133 of the Evidence Act made the following observations: (SCC headnote) "An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case, taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an, approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features, of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the heeded assurance for acceptance his testimony on which a conviction may be based." Thus it is clear that a definite rule has been crystallized to the effect that though a conviction can be based on uncorroborated evidence of an accomplice but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of Section 114 of the Evidence Act.
[Emphasis supplied]
32. Mr. Debnath, learned Addl. Public Prosecutor has further relied on a decision of the apex court in Balbir Singh Vs. State of Rajasthan etc., reported in 1997 CRI.L.J. 1179, which has again illustrated how to appreciate the evidence of the approver. For Crl.A.(J) No.46 of 2014 Page 27 of 56 illustration, the relevant passages from the said decision is reproduced:
10. After giving our careful consideration to the facts and circumstances of the case and the judgments passed by the Courts below, it appears to us that the approver has not made statements to exculpate him but has clearly deposed that he was party to the conspiracy and on the date of the incident was waiting near the Taal when Balbir Singh and Mohan had been sent to bring Ramu with money so that Ramu would be murdered and the money would be looted.
He had also deposed that he himself did not inflict injury but he caught hold of the legs of the deceased when the deceased was done to death. So far as the identification of Balbir Singh by the widow of the deceased is concerned, we do not think that such identification is to be discharged simply because the height of the accused was less than the persons with whom he was mixed up or he had a scar mark. Fateh Lal (PW-19) has deposed that the persons with whom the accused Balbir Singh was mixed up were almost of the same age and after going two rounds, the widow had identified Balbir. The contention that no reliance shall be placed on the evidence of approver because the golden earrings were not taken away by the accused even though they had committed the murder for gain cannot be accepted. It may be indicated here that because PW-12, the approver had raised an alarm that some lights were seen from the village side, the accused had hurriedly left the place of occurrence and Mohan had only removed Rs. 200/- from the pocket of the deceased. The deposition of the approver Balmukand that a car came from the side of Loonkaransar and two persons also saw them and one of such persons enquired of Mohan as to wherefrom they had been coming, stands fully corroborated from the testimony of PW-4 Bega Ram and PW-5 Manoj Singh. Both the witnesses have stated that they alighted from the bus at village Sawai. After covering some distance for coming to their village Mitasar, they saw five persons. At that time, one car came from the side of Loonkaransar. They had also deposed that the said persons had three bicycles with them. The said witnesses have also deposed that they could identify Mohan and Yashin but could not identify rest of three persons because the others were little away from them.
11. In our view, the deposition of the approver PW-12 about the injuries caused on the person of the deceased is substantially corroborated from the medical evidence and absence of any injury caused by the blunt weapon of lathi on the person of the deceased cannot be held to be such a contradiction in the deposition of PW-12 for which such deposition is liable to be discarded. We have already indicated that five persons were seen by PWs 4 and 5. Such evidence tallies with the deposition of PW-12 that besides Crl.A.(J) No.46 of 2014 Page 28 of 56 the approver, there were other four accused. The deposition of PW-12 also stands corroborated that PWs-4 and 5 could identify Mohan and Yashin and had enquired of them as to from where they had been coming then. Such deposition fully lends support to the deposition given by PW-12. The High Court has indicated cogent reasons for affirming the conviction and sentences passed against the appellants and we do not find any reason to interfere with the concurrent findings made by the Courts below against the appellants.
[Emphasis supplied]
33. Finally, Mr. Debnath, learned Addl. Public Prosecutor has referred the decision of the apex court in Narayan Chetanram Chaudhary Vs. State of Maharashtra, reported in (2000) 8 SCC
457. In that case the apex court has illustrated on the aspect of satisfaction of the court in granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It has been observed that, there is no legal obligation on the trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306(4) of the Cr.P.C. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to the compliance of conditions specified in sub-section (1) of Section 306. For purpose of reference, Section 306 of the Cr.P.C. as a whole is extracted hereunder:
"306. Tender of pardon to accomplice.-
(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or Crl.A.(J) No.46 of 2014 Page 29 of 56 trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2) This section applies to-
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 );
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-
section (1) shall record-
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)-
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has, accepted a tender of pardon made under sub- section (1) and has been examined under sub- section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,-
(a) commit it for trial-
(i) to the Court of Session if the, offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 ), if the offence is triable exclusively by that Court;
Crl.A.(J) No.46 of 2014 Page 30 of 56
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself."
34. Mr. Debnath, learned Addl. Public Prosecutor has further submitted that all precautions for complying the provisions of Section 306(1) before tendering pardon to the accomplice who turned approver (PW.11) was taken. As such there is no violation in recording the statement of the approver. It has been further observed in Narayan Chetanram Chaudhary (supra) as under:
29. Such is not the position in the instant case. Otherwise the words of the section "at the time after commitment of the case but before judgment is passed" are clearly indicative of the legal position which the legislature intended. No time limit is provided for recording such a statement and delay by itself is no ground to reject the testimony of the accomplice. Delay may be one of the circumstances to be kept in mind as a measure of caution for appreciating the evidence of the accomplice. Human mind cannot be expected to be reacting in a similar manner under different situations. Any person accused of an offence, may at any time before the judgment is pronounced, repent for his action and volunteer to disclose the truth in the Court.
Repentance is a condition of mind differing from person to person and from situation to situation.
[Emphasis supplied]
35. Having observed as above, the apex court has crystalised that merely for recording the statement after a prolonged delay it cannot be held that no reliance could be placed from it. In the same report, the apex court has observed on reiterating the principle as recorded in Bhiva Doulu Patil Vs. State of Maharashtra, reported in AIR 1963 SC 599 as under:
35. This Court in Bhiva Doulu Patil v. State of Maharashtra : AIR 1963 SC 599 held that the combined effect of Sections Crl.A.(J) No.46 of 2014 Page 31 of 56 133 and 114 illustration (b) of the Evidence Act was that an accomplice is competent to give evidence but it would be unsafe to convict the accused upon his testimony alone.
Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. In this regard the Court in Bhiva Doulu Patil case observed:
"In coming to the above conclusion we have not been unmindful of the provisions of Section 133 of the Evidence Act which reads:
„133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.‟ It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B. in R. v. Boyes : (1861) 9 Cox CC 32 has become so hallowed as to be deserving of respect and the words of Lord Abinger "It deserves to have all the reverence of the law". This rule of guidance is to be found in illustration (b) to Section 114 of the Evidence Act which is as follows:
„The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars."
Both sections are part of one subject and have to be considered together. The Privy Council in Bhuboni Sahu v. R. : (1948-49) 76 IA 147 : AIR 1949 PC 257 when its attention was drawn to the judgment of Madras High Court in B.K. Rajagopal, In re : ILR 1944 Mad 308 : AIR 1944 Mad 117 where conviction was based upon the evidence of an accomplice supported by the statement of a co-accused, said as follows :
„Their Lordships. . . . . . . . would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the Crl.A.(J) No.46 of 2014 Page 32 of 56 prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue.‟ The combined effect of Sections 133 and 114, Illustration (b) may be stated as follows:
According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading C. J. in R. v. Baskerville : (1916) 2 KB 658 as follows :
„There is no doubt that the un-corroborated evidence of an accomplice is admissible in law (R. v.James Atwood : (1787) 1 Leach 464. But it has been long a rule of practice at common law for the Judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the Judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence (R. v. Stubbs : (1855) Dears CC 555, In re : (1894) 2 QB 415.‟ "
36. Again in Dagdu v. State of Maharashtra : (1977) 3 SCC 68 this Court declared : (SCC pp. 74-76, paras 21-25) :
"21. There is no antithesis between Section 133 and Illustration (b) to Section 114 of the Evidence Act, because the illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrefutable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-Crl.A.(J) No.46 of 2014 Page 33 of 56
confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevate by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it.
22. In R v. Basekerville : (1916) 2 KB 658, the accused was convicted for committing gross acts of indecency with two boys who were treated as accomplices since they were freely consenting parties. Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that though there was no doubt that the uncorroborated evidence of an accomplice was admissible in law it was for a long time a rule of practice at common law for the Judge to warn the Jury of the danger of convicting a person on the uncorroborated testimony of an accomplice. Therefore, though the Judge was entitled to point out to the Jury that it was within their legal province to convict upon the unconfirmed evidence of an accomplice, the rule of practice had become virtually equivalent to a rule of law and therefore in the absence of a proper warning by the Judge the conviction could not be permitted to stand. If after being properly cautioned by the Judge the Jury nevertheless convicted the prisoner, the Court would not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated.
23. In Rameshwar v. State of Rajasthan : AIR 1952 SC 54 this Court observed that the branch of law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville case by the Lord Chief Justice of England. The only clarification made by this Court was that in cases tried by a Judge without the aid of a Jury it was necessary that the Judge should give some indication in his judgment that he had this rule of caution in mind and should proceed to give reason for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considered it safe to convict without corroboration in the particular case.Crl.A.(J) No.46 of 2014 Page 34 of 56
24. In Bhuboni Sahu v. R : AIR 1949 PC 257, the Privy Council after noticing Section 133 and illustration
(b) to Section 114 of the Evidence Act observed that whilst it is not illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase „corroborated in material particulars‟ in illustration(b). Delivering the judgment of the Judicial Committee Sir John Beaumont observed that the danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them but untrue as to the other two whose names may have been introduced because they are enemies of the approver. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused.
25. This Court has in a series of cases expressed the same view as regards accomplice evidence. (See State of Bihar v. Basawan Singh : AIR 1958 SC 500;
Haricharan Kurmi v. State of Bihar : AIR 1964 SC 1184; Haroom Haji Abdulla v. State of Maharashtra : AIR 1968 SC 832 and Ravinder Singh v. State of Haryana :
(1975) 3 SCC 742). In Haricharan, Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under Section 3 of the Evidence Act and has to be dealt with as such.
The evidence is of a tainted character and as such is very weak; but nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars."
To the same effect is the judgment in Balwant Kaur v. Union Territory, Chandigarh : (1988) 1 SCC 1.
[Emphasis supplied] Crl.A.(J) No.46 of 2014 Page 35 of 56 Further, it has been observed in Narayan Chetanram Chaudhary (supra) as under:
37. For corroborative evidence the Court look at the broad spectrum of the Approver's version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases.
Corroboration need not be in the form of ocular testimony of witnesses and may be even in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable. Relying upon its earlier judgment in Suresh Chandra Bahri case : 1995 Supp (1) SCC 80 this Court in Niranjan Singh v. State of Punjab : (1996) 9 SCC 98 held that once the evidence of the Approver is held to be trustworthy, it must be shown that the story given by Approver so far as an accused is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of caution and not merely a rule of law.
[Emphasis supplied]
36. For appreciation of the submissions made by the learned counsel for the appellant as well as of the State, we feel it to be apposite to make a survey of the evidence as led by the prosecution in order to find out whether the testimonies of PWs.1, 2, 3, 6, 10 and 11 are trustworthy on the touchstone of the veracity in accordance with the settled principle of law.
37. PW.1, Shri Sankar Kumar Gon has stated in the trial that, on 02.10.1997 his father Anil Kumar Gon, was murdered in their house. At the time of the occurrence he was in a shop at Golbazar, Agartala. At about 7 pm, his bother Shibu Kumar Gon (PW.2) came to his shop and told him that he had quarrel with the appellant and as such PW.2 requested him not to go home. PW.2 told him that the quarrel took place near hanging bridge, Town Pratapgrah. He had Crl.A.(J) No.46 of 2014 Page 36 of 56 further submitted that PW.2 did not inform anything beyond that. Out of fear, he spent that night in one of his friends‟ house, namely Satya Banik at Shibnagar. On the following morning at about 8 am he came to his shop and requested one Ajoy Pal (who was not examined by the police), a businessman of the adjacent shop, to go to his house and to observe the situation. Sir Ajoy Pal on visiting his house has informed him that there was blood stain at the varandah of the eastern viti hut of their house. On hearing this, PW.1 rushed to the house of his younger sister, namely Gouri Basak situated at Pratapgrah instead of going direct to his house. Out of fear, as he stated in the trial, he did not go home. When he reached their house on being accompanied by his sister and sister‟s husband, he found a gathering. Police was also there. They found their father lying dead in the eastern viti hut with multiple bleeding injuries. He gave an oral ejahar to the police, which was reduced into writing. Subsequently, that was treated as the ejahar (Exbt.P/1). PW.1 was also witness to the seizure of the wearing apparels of his father (Exbt. MO-1 series). In the gathering, PW.1 found one Satya Deb and another Sanjoy Pal. He came to know that the appellant, Swapan Karmakar, Ashok Dhar and others killed his father who was aged about 65 years. The houses of Sukumar Bal and Raj Kumar Pal are situated to the east of their house. House of Satya Deb is situated towards the west. Central Road Extension starts from Granduish Club Chowmuhani (the square) up to hanging bridge. Their house is situated at Karmakr Gali, which starts from the western side Crl.A.(J) No.46 of 2014 Page 37 of 56 of the Central Road Extension. He was also witness to the post mortem examination.
38. In the cross-examination of PW.1, certain omissions were pointed out. PW.1 has admitted in the cross-examination that he did not inform anyone including the police about the quarrel that occurred between Shibu Kumar Gon (PW.2) and the appellant. PW.1 has reiterated that he found in the gathering one Satya Deb and another Sanjoy Pal in the cross-examination. He denied the suggestions which were in contrast to what he had stated in the examination-in-chief.
39. PW.2, Shibu Kumar Gon was the prosecution‟s starling witness. His statement was recorded under Section 164(5) of the Cr.P.C. by PW.4 at the instance of the police. What PW.2 has stated in the examination-in-chief can be segregated for purpose of comparison with his statement recorded under Section 164(5) of the Cr.P.C.:
(a) On 02.10.1997 at about 5.30 pm, PW.2 went to the shop of Dilip Saha situated near the wooden bridge at Town Pratapgrah. At that time, Amit Ghosh (the appellant), Swapan Karmakar (the approver), Tultul Chowdhury and Ashok Dhar (the other accused persons), came there with a white coloured Maruti Van in front of that shop. They got down from the vehicle. The appellant then asked PW.2 when he got the job. In reply, PW.2 stated that during the regime of the Congress he got the job. PW.2 also stated Crl.A.(J) No.46 of 2014 Page 38 of 56 that though the appellant had done everything but he received the offer through one Kachha. The appellant reacted sharply and caught hold of his neck and started assaulting him. PW.2 offered resistance and somehow managed to escape from the clutch of the appellant.
Thereafter, PW.2 returned home and out of fear he hid himself in the Ekchala store room of fire-wood.
(b) At about 6.30 pm PW.2 saw the appellant, the approver, Tultul Choudhury, Ashok Dhar and Prabash Sarkar entering into their house with a dao in the hand of the appellant. The appellant called his father and, in response to that his father came out in the varandah of the eastern viti hut. Then the appellant asked where Shibu (PW.2) was. His father told that PW.2 was not available in the house. The appellant then uttered filthy language and gave a dao blow on the head of his father. The appellant pushed his father into the eastern viti room. At that time his father sought mercy of the appellant and urged not to kill him. Seeing the said incident, PW.2, being extremely frightened ran away and came to their shop situated at Golbazar.
c) Coming to their shop at Golbazar, PW.2 found his brother Sankar Gon (PW.1) and narrated him the incident of quarrel between the appellant and himself and also stated that in search of him the appellant and others entered their Crl.A.(J) No.46 of 2014 Page 39 of 56 house and assaulted their father. PW.2 had advised his brother (PW.1) not to go to the house as he might be killed. From there, he went to the house of his friend, namely Tarun Kumar Banik at Ashram Chowmuhani and spent the night there. On the following day at about 3 pm he came to learn from his maternal uncle, namely Narayan Deb that his father was killed. Out of fear, he again came to the house of Tarun Kumar Banik to take shelter there.
d) On 04.10.1997 PW.2 came to IGM Morgue and found the dead body of his father. He gave the statement to the police in connection with the said case. On 14.10.1997 PW.2 gave his statement before the Magistrate and his statement was accordingly recorded by the Magistrate. PW.2 put his signature in the said statement, which was marked as Exbt.P/4 series. PW.2 has stated that he met his brother Sankar Gon (PW.1) in the IGM Morgue. At the relevant point of time, PW.2 was serving at Jampuijala Block Office. He identified the appellant in the dock.
40. In the cross-examination, PW.2 elaborated the case. His attention was drawn to the parts of elaboration, but PW.2 had asserted that he made all those statement to the police officer.
This part was not placed to the Investigating Officer for his verification. Therefore, those cannot be treated as contradiction within Crl.A.(J) No.46 of 2014 Page 40 of 56 the meaning of Section 162 of the Cr.P.C. as the requirement of Section 145 of the Evidence Act was not conformed to by the defence. But a certain part of such statement was admitted by PW.2 in the following manner:
"I did not state to Sankar Gon that you may be killed if you go to house. I did not state to the Darogababu that my maternal uncle Narayan Dey told me that my father was killed. On 3.10.97 I gave statements to the police that in the afternoon on 3.10.97 in front of Laxminarayan Bari I learnt from Jatindra Pal that my father died. It is not a fact that I did not learn from Narayan Deb that my father was killed."
PW.2 volunteered at that time to say that Narayan Deb was with Jatindra Pal at Laxminarayan Bari. PW.2 has further stated that out of fear he did not lodge any complaint. He denied the fact that there was a land dispute in their family at the time when his father was alive.
41. PW.3, Sanjoy Pal is a close neighbour to the deceased Anil Kumar Gon. He has stated that the house of Anil Kumar Gon was situated at Karmakar gali and the houses of Dilip Datta, Sukumar Bal and Satya Dey are situated adjacent to the boundary of Anil Kumar Gon. He has categorically stated that on 02.10.1997 at about 6.30/7 pm the appellant was killed in his house. PW.3 has stated that earlier also he has given deposition in connection with this case. The pertinent part of his deposition is as under:
"On 2.10.97 at about 6-30 pm/7 pm while I was going to Gol Bazar I saw Amit Ghosh, Swapan Karmakar, Ashok Dhar and Tultul Choudhury. They were entering into Karmakar gali. I also saw there was a dao in the hand of Amit Ghosh. After marketing (sic) from Goal bazar I returned to my house at Crl.A.(J) No.46 of 2014 Page 41 of 56 about 8-30/9 pm. I got frightened seeing Amit Ghosh and his associates. On the following morning at about 9 am I heard the alarm of younger sister of Shibu Gon. Then I went to the house of Anil Kumar Gon and found there was a blood stain in the varandah of the eastern viti hut of that house. I also saw the dead body of Anil Kumar Gon was lying inside the hut with bleeding injuries."
PW.3 has corroborated that Satya Deb was also present there. Police had appeared after he reached there. PW.3 also deposed that, PW.1 stated him that on the last evening there was a quarrel between the appellant and his brother (PW.2) and the killing of his father was the result of that quarrel. In the cross-examination, he did not allow anything to be dented. He denied the statements in contrast to what he had stated in the examination-in-chief.
42. PW.4, Shri Tridip Chandra Roy Bhowmik was at the relevant point of time the Judicial Magistrate at Agartala and he, as per order of the Chief Judicial Magistrate, Agartala, recorded the statement of PW.2 in connection with West Agartala P.S. Case No.210/97 and marked that statement as Exbt.4 in the trial.
43. PW.5, Satya Deb is another witness who had placed some material evidence in the trial. He has stated that on 02.10.1997 Anil Kumar Gon was murdered in his own house. On that day in the evening, he was in his shop at Post Office Chowmuhani, Agartala and he returned to his house at about 9 pm. After returning home he heard from his father that the appellant alongwith Swapan Karmakar and others entered into the house of Anil Kumar Gon and there was a hue and cry. Anil Kumar Gon uttered „bachao-bachao‟. On the following Crl.A.(J) No.46 of 2014 Page 42 of 56 morning he heard the cry of the younger daughter of Anil Kumar Gon and thereafter he went to the house of Anil Kumar Gon and found him dead lying inside the eastern viti hut with multiple bleeding injuries. He also found blood-stain in the varandah. PW.5 saw Sanjoy Pal, Dinadayal Deb, Arabinda Saha and others there. He was present during the inquest procedure and he put his signature on the inquest report (Exbt.5) as the witness. His statement of what he heard from his father was contested. Some minor deviant statements was brought on record at the instance of the defence from the statement recorded by the police under Section 161 of the Cr.P.C. However, that was also not placed to the Investigating Officer (PW.12) for verification. In the cross-examination, PW.5 has stated that the houses of Karmakar gali are situated very close to each other and there was movement of people through the Central Road Extension around 7 pm as usual. On the day of incident, the Durga Puja at the Granduish Club was going on in full swing.
44. PW.6, Sunil Saha has revealed in the trial that he has a shop at the Central Road Extension and behind the shop falls the eastern side of Central Road Extension. On 02.10.1997 at about 5.30 pm he was in his shop and at that time he saw the appellant alongwith Swapan karmakar and 3/4 others coming from the southern side towards the north, crossing his shop. After a while he saw the appellant alongwith Swapan Karmakar and others were going towards the south with a dao in the hand of the appellant. He also found blood- Crl.A.(J) No.46 of 2014 Page 43 of 56 stain on the wearing apparel of the appellant. Out of fear, he went to his house after closing the shop. On the following day at about 10 am he heard that Anil Kumar Gon was murdered on the previous night. The suggestion contrary to what he has stated in the examination-in- chief was squarely denied by PW.6.
45. PW.7, Dr. Ila Lodh, on 04.10.1997 was working as the Superintendent in the IGM hospital, Agartala. She identified the post mortem examination report of Dr. Pijush Kanti Das who completed the post mortem procedure and filed the post mortem report (Exbt.6). In the cross-examination the defence could not derive anything which might support their case.
46. PW.8, Haralal Sarkar, a Constable of Police, has stated that he guarded the dead body at the IGM hospital and identified the dead body at the time of post mortem examination.
47. PW.9, Kshitish Debnath was working as the Sub-Inspector of Police at the West Agartala Police Station. He received the oral ejahar and recorded it. He filled the FIR form etc. The case was initially endorsed by the Central DSP Arindam Nath (PW.13) to Debasish Banerjee, IO of the case (PW.12). There is no serious cross- examination on what he has stated in the trial.
48. PW.10, Tulsi Saha, owner of a Tailoring shop at Maharajganj bazar, claimed that the appellant confessed to him that Crl.A.(J) No.46 of 2014 Page 44 of 56 he killed Anil Kumar Gon, out of anger. However, in the cross- examination he even could not name any of his adjacent shop owners.
49. PW.11, Swapan Karmakar is the approver and the important witness for the prosecution, as it appears from the record of evidence. Let us also segregate his statement into parts for purpose of comparison vis-a-vis his statement as recorded under Section 307 of the Cr.P.C.
a) On 29.08.2002 PW.11 made a prayer before the court from the Central jail, Agartala, to be the approver of the case. He also identified the said application. On 12.09.2002 he was produced from the Central Jail before the Sessions Judge, West Tripura, Agartala and on being asked by the Sessions Judge whether he was ready to give the statement, he stated that he was ready to give his statement. Accordingly, he made the statement (Exbt.9 series) and, thereafter on 19.09.2002 PW.11 was declared approver of the case.
b) PW.11 has stated in the trial that on 02.10.1997 at about 5/5.10 pm he was waiting at Mahesh Khola Auto Stand, which is situated at a little distance from Granduish Club and towards the east. At that time a white coloured Maruti Van came there. From that Maruti Van, the appellant alongwith Tultul Choudhury alias Subrata got down in Crl.A.(J) No.46 of 2014 Page 45 of 56 drunken condition and the appellant called PW.11 to accompany him towards the bank of the river. Accordingly, PW.11 accompanied them. When they reached near the bank of the river, the appellant called Shibu Gon. Ashok Dhar was also standing there with Shibu Gon. The appellant asked Shibu who gave him the job. In reply, Shibu told that the coalition Government gave him the job. Thereafter, the appellant slapped Shibu. Shibu also gave a blow with fist to the appellant and as a result the appellant fell down on the ground. Shibu Gon then fled away from the spot. The appellant got up from the ground and uttered that he would not spare Shibu as he had assaulted him. Thereafter, PW.11 accompanied the appellant, Tultul and Ashok Dhar to his house. The appellant asked them to wait there as he would be coming very shortly. After about 2/3 minutes the appellant came out of his house with four numbers of dao. The appellant kept one dao in his hand and three daos were given to them. Thereafter, the appellant directed them to proceed towards the house of Shibu Gon and accordingly they proceeded on foot towards the house of Shibu Gon. The appellant told them that he would kill Shibu Gon. The house of Shibu Gon is situated at Karmakar gali which runs towards west from the Central Road Extension. Crl.A.(J) No.46 of 2014 Page 46 of 56
c) They all four entered into the house of Shibu Gon, where they found Anil Kumar Gon, the father of Shibu Gon, sitting in the varandah of the eastern viti hut. The appellant asked where Shibu was. In reply, Anil Kumar Gon told that he did not know where Shibu was. Then the appellant told that since Shibu was not available in the house he would not spare Anil Kumar Gon. The appellant also uttered slang language and gave dao blow on the person of Anil Kumar Gon. Thereafter, Anil Kumar Gon took shelter into the room. Subsequently, the appellant entered into that room where Anil Kumar Gon had entered and directed them to stand in front of the door so that Anil Kumar Gon could not escape. Accordingly, they were standing in front of the door. Thereafter, the appellant indiscriminately gave dao blows on the person of Anil Kumar Gon and came out of the room. The appellant told them that Anil Kumar Gon was „finished‟. Then at the direction of the appellant they proceeded towards the house of the appellant. The appellant washed the blood-stained dao used by him in the water tank of his house and kept all the four daos inside a gunny bag and told them that he would conceal those daos. Thereafter, PW.11 left the house of the appellant. But the other accomplices were present there and all of them were his friends.
Crl.A.(J) No.46 of 2014 Page 47 of 56
d) In the cross-examination, nothing can be dented. PW.11 made only a new statement what he did not disclose to the relatives while he was in the custody that he was repentant for the act. He repeated how he was permitted to be the approver. He denied the general suggestions made in contrast to the examination-in-chief.
50. PW.12, Debasish Banerjee had investigated the case being so endorsed for substantive part and he has narrated how he has investigated the case by recording the witnesses, seized the material objects, preparing the site map etc. In the cross-examination he has stated that he did not examine Ajoy Pal, from whom Sankar Gon (PW.1) had received the information first regarding murder of his father. There was no explanation in the CD in respect of non- examination of said Ajoy Pal. PW.12 denied the suggestion that the first page of the ejahar was prepared in the police station after due deliberation with others.
51. PW.13, Arindam Nath was posted as the DSP Central, Agartala. He took up the investigation of the case. He has stated that he tried several times to arrest the appellant and other accused persons, but he could not arrest them as they were absconding under cover. He has recorded the statement of seven witnesses including Sunil Saha and Tulsi Saha under Section 161 of the Cr.P.C. Having collected the post mortem examination report, PW.13 finalised the chargesheet but could not file the same for his posting out. In the Crl.A.(J) No.46 of 2014 Page 48 of 56 cross-examination, nothing material could be realised. However, he has revealed that on 26.08.1998 he had arrested the appellant from Town Pratapgarh. He has also asserted that PW.10 (Tulsi Saha) gave the statement before him revealing that the appellant confessed to him that he committed murder of Anil Kumar Gon.
52. PW.14, Bimalangshu Das, who took charge as the DSP Central from PW.13, has submitted that the chargesheet against the accused persons under Section 302/34 of the IPC.
53. Let us now see what PW.2 has stated in his statement made under Section 164(5) of the Cr.P.C. as recorded by PW.6. He has stated that,
(a) On 02.10.1997 at about 5.30 pm when he was near the shop of Dilip Saha, Amit Ghosh (the appellant) alongwith Tultul Choudhury and Swapan Karmakar got down there from a white coloured Maruti Van. Coming down from the vehicle, the appellant asked him who had given him the job. PW.2 told that the appellant had tried for him. Then the appellant started assaulting him. He had a scuffle with the appellant. Thereafter, PW.2 had fled to his house out of fear. After about 15 minutes, he saw that the appellant alongwith Tultul Choudhury, Swapan Karmakar and Ashok Dhar of Masterpara coming towards their house. They had long choppers (dao) in their hands.
Crl.A.(J) No.46 of 2014 Page 49 of 56
(b) PW.2 by coming through the back-door of their northern hut took shelter behind the hut in the southern part of their house. He noticed from there that the appellant dealt a blow on the head of his father. He got scared and went to the west bank of the pond of the house of Sukumar Bal through the house of Rajkumar Pal, wherefrom he heard screams of his father. The appellant asked his father, "where is your son Shibu? Bring him out." Out of fear he fled from there and went to the shop of his younger brother (PW.1) and narrated him the incident.
(c) Being scared PW.2 took shelter in the house of one Tarun Kumar Banik of Ashram Chowmuhani. On the following day, he came to know that his father was dead, but he did not return home. His maternal uncle, namely Narayan Deb informed him that the ejahar had been lodged to the police.
54. Now, let us re-visit the statement of the approver (PW.11) made under Section 307 of the Cr.P.C. He has stated in the said statement that,
(a) The appellant asked PW.11 to accompany them to the bank of the river and accordingly, he boarded in the Maruti Van. On the embankment, they got down from the vehicle. The appellant called Shibu Gon. At that place, there was Ashok Dhar with Shibu Gon. The appellant asked Shibu who had Crl.A.(J) No.46 of 2014 Page 50 of 56 offered him the job. Shibu replied that the coalition Government had offered him the job. Then the appellant abused Shibu and slapped on his cheek for 2/3 times. Shibu also punched the appellant and as a result the appellant fell down on the ground and Shibu rushed towards his house. The appellant stood up on the ground and stated that "Shibu has assaulted me and I will not spare Shibu. Come with me." Thereafter, Tultul alias Subrata, Ashok Dhar and the approver came to the house of the appellant. There, they waited and the appellant entered his house and within 2/3 minutes he came out with four choppers (dao) in his hands. The appellant kept one chopper in his hand and gave the remaining three to them. The appellant then directed them to go to the house of Shibu Gon. The appellant went ahead and the others followed him.
(b) Anil Kumar Gon, the father of Shibu Gon was sitting in the varandah of their eastern viti hut. The appellant asked him where Shibu was. Anil Kumar Gon replied that he did not know. The appellant abused Anil Kumar Gon in filthy language and said that he would kill him as he did not get his son. The appellant dealt a blow of chopper on Anil Kumar Gon. Out of fear Anil Kumar Gon entered inside the room, but the appellant also instantaneously entered in Crl.A.(J) No.46 of 2014 Page 51 of 56 that room and directed them to stand in front of the door so that Anil Kumar Gon could not come out of that room. The appellant gave hacking blows of chopper on Anil Kumar Gon indiscriminately. After some time the appellant came out of the said room and said Anil Gan was „finished‟. Then they left the house of Anil Kumar Gon.
(c) They all came in the house of the appellant. The appellant washed the chopper, with which he hacked Anil Kumar Gon, with water and kept all the four choppers in a sack and told them that, he would keep the choppers properly. Thereafter, the approver (PW.11) on taking permission of the appellant left the house of the appellant at about 7.15/7.30 pm on that day.
55. Firstly, we should observe that there is no serious discrepancy in the statement of PW.2 made in the trial vis-a-vis the statement that was recorded under Section 164(5) of the Cr.P.C. Similarly, there is no discrepancy at all in the statement made by the approver under Section 307 of the Cr.P.C. and the statement that he made in the trial. The statement of the approver has been corroborated by the witnesses (PWs.2, 3 and 6). But, Mr. P.K. Biswas, learned senior counsel has insisted us to believe that PW.2 did not speak the truth in the trial. As stated, PW.2 almost replicated what he had stated in his statement recorded under Section 164(5) of the Cr.P.C. True it is that, his conduct may generate a bewildered state. Crl.A.(J) No.46 of 2014 Page 52 of 56 But at the same time, this court cannot be oblivious that PW.2 had been chased by death as he saw the appellant and his gang with weapons open in their hands and they were in his search. Out of fear as he has admitted, PW.2 simply stated to PW.1 that there was a quarrel and he should not go to their house. PW.2 thereafter left for a safer place. Human frailty is rather natural under such circumstances. PW.2 however has stated that he told to PW.1 that the appellant and his gang gave a blow on his father, but that was not supported by PW.1. True it is that PW.2 did not act to save his father or reveal what happened to his father to PW.1 or to the police, his statement cannot be totally ignored. That apart, by the circumstantial evidence as introduced by the independent witnesses who saw the appellant and other accused persons moving towards the house of Anil Kumar Gon with arms it has been established that none other than the appellant with accomplices committed the murder of Anil Kumar Gon. In the post-mortem examination report (Exbt.5), it has been clearly observed that the injuries were caused by a sharp cutting weapon. Moreover, PW.7 as an expert, after seeing the report has clearly stated that the injuries were grievous and those were found at the head, neck and hands etc. Testimonies of PWs.2 and 11 have further strengthened the prosecution case.
56. Let us revisit the observation made in the post mortem report which was prepared by Dr. Pijush Kanti Das. Against all the injuries, the forensic expert who conducted the post mortem Crl.A.(J) No.46 of 2014 Page 53 of 56 examination, has categorically stated that all the injuries were sharp cut injuries. Therefore, there cannot be any amount of doubt that those injuries might have been inflicted by dao. Moreover, no attempt was made by the defence to show that those were not injuries caused by a dao on the face what has been testified by PW.7.
57. Having appreciated all the evidence together, we find that the appellant was feared by all and in such circumstances, the evidence has come from the courageous people and, according to us, the chain of circumstances infallibly creates a ring against the appellant that none but he had murdered Anil Kumar Gon on 02.10.1997. These circumstances and the statement of the witnesses as discussed above, have fully corroborated the statement of the approver. There cannot be any reason, situated as such, not to trust the approver as the statement of the approver (PW.11) has survived the test as laid down under Section 114(b) read with Section 133 of the Evidence Act and in the manner as laid down by the apex court in the reports as relied by Mr. P.K. Biswas, learned senior counsel appearing for the appellant.
58. In Subramaniam Vs. Public Proscutor, reported in (1956) 1 DWLR 965, the Privy Council while distinguishing the factum of statement from the factum of truth, observed that the state of mind of a man, charged with possessing ammunition contrary to certain regulations, could be proved by what had been told to him by certain terrorists into whose hands he had come. Referring to the Crl.A.(J) No.46 of 2014 Page 54 of 56 observations so made by the Privy Council in Subramaniam (supra), Lord Parker, Chief Justice, in Regina vs. Wills : [1960] 1 WLR 55, observed as under:
"Mr. de Silva, giving the advice of the Board, said: In ruling out peremptorily the evidence of conversation between the terrorists and the appellant, the trial judge was in error. Evidence of a statement made to a witness by a person, who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is proposed to establish, by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
In the opinion of this Court, that statement of the law is applicable to the present case. It is true that the Board were there considering the state of mind and conduct of the defendant at the time of the commission of the offence, but provided the evidence as to his state of mind and conduct is relevant, it matters not whether it was in regard to the conduct at the time of the commission of the offence or, as here, at a subsequent time, to explain his answers to the police and his conduct, when charged. Accordingly, that evidence, in the present case, was wrongly excluded."
This principle can be applied in respect of the conduct of the appellant which was aggravated from altercation with PW.2 and as he absconded for quite long time immediately after the occurrence. True it is that, „abscondance‟ by itself cannot be evidence but when it becomes the essential part in the ring of circumstantial episodes it takes a new character which becomes an episode in itself in the ring. There had been no contradiction to the statement made by PW.13 that he arrested the appellant on 26.08.1998 while the occurrence had taken place on 02.10.1997 i.e. almost after 10(ten) months. The Crl.A.(J) No.46 of 2014 Page 55 of 56 defence failed to explain the circumstances of „absence‟ from residence which was privy exclusively to the appellant.
59. Having observed thus, we are not persuaded to interfere with the impugned judgment of conviction and order of sentence. As consequence thereof, the appeal fails and, accordingly, the same is dismissed. The appellant shall serve out the sentence.
Send down the records forthwith.
JUDGE CHIEF JUSTICE ROY Crl.A.(J) No.46 of 2014 Page 56 of 56