Tripura High Court
- vs - on 27 July, 2022
Bench: T. Amarnath Goud, Arindam Lodh
Page 1 of 16
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. A(J) No. 03 of 2021
Sri Pranesh Nath @ Khokan, son of late Digendra Nath, of
village- Kanchanpur, Dasda, P.S. Kanchanpur, District: North
Tripura.
.....Appellan
-V E R S U S-
The State of Tripura.
..... Respondent.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mr. R. G. Chakraborty, Advocate.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of hearing and delivery
of judgment and order : 27.07.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. R. G. Chakraborty, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Additional Public Prosecutor appearing for the State-respondent.
[2] This appeal is directed against the judgment and order of conviction and sentence dated 04.05.2018 passed by the learned Sessions Judge, Dharmanagar, North Tripura Judicial District in connection with Case No. S.T.(T-1) 01 of 2017, whereby and whereunder, the appellant and another convict Sri Pratap Nath Choudhury @ Mantu have been convicted under Sections-457/302/34 of IPC and thereby sentenced to suffer RI for 5[five] years for commission of offence under Section-457 of Page 2 of 16 IPC read with Section-34 of IPC and they are sentenced to pay a fine of Rs.10,000/- each for the same offence and in default to suffer further RI for 1 year. Further, sentence to suffer RI for life which should be till remaining part of their natural life for committing offence punishable under Section-302 of IPC read with Section-34 and to pay a fine of Rs.10,000 each with default stipulation. It was directed that both the sentences shall run concurrently.
[3] The case of the prosecution, in a nutshell, is that on 12.08.2016 at about 10.00 a.m. the informant, PW-2 herein, along with one Sailen Tanti, PW-4 came at his house for doing work and he found that the door of the house was opened and he called h is mother and finding no response, he pushed the door and saw that his mother was lying on the floor with bleeding injuries and he called his neighbours and also called police through telephone. By seeing his mother, the informant was sure that his mother was murdered by someone with sharp cutting weapon.
[4] On receipt of the ejahar, O/C Dharmanagar P.S. registered Dharmanagar P.S. Case No.2016DMN 0051 under Secsion-302 of IPC and endorsed the case to Sri Ajit Das, SI of police for investigation and after investigation, the I.O. submitted charge-sheet against the accused-persons under Sections-457/302/201/34 of IPC. The accused-persons were brought to trial and they were supplied with copies of incriminating papers. The case being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, North Tripura, Dharmanagar committed the case to the Court of Sessions.
[5] After commitment, the learned Court below framed charge under Sections-457, 302 read with Section-34 of IPC against the accused persons and the contents of the charge were read over and explained to Page 3 of 16 them in Bengali which they pleaded not guilty and claimed to be tried. As per order of the Court dated 01.06.2017, the accused, namely, Ratan Roy was tendered pardon with a view to obtain his evidence supposed to have been directly or indirectly concerned in or privy to the privy to the offence or condition of his making full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every persons concerned whether as principal or abettor in the commission of offence.
[6] To substantiate the charge, the prosecution adduced as many as 21 [twenty-one] witnesses including the complainant and also exhibited certain relevant documents and materials [Exbt.1 to 17, Exbt.A] to prove the charge levelled against the accused persons. On the closure of prosecution evidence, the accused-persons were examined under Section- 313 of Cr. P.C. They denied all the incriminating materials of prosecution evidences and also declined to adduce any evidence.
[7] After hearing both the parties and on perusal of the documents submitted by the prosecution, the learned Court below found that the appellants are guilty for committing offence punishable under Sections- 457/302/34 of IPC and thereby sentenced as stated supra. For the purpose of reference, the observation of the Court below may be reproduced hereinbelow:
―In the result, I find and hold that prosecution has successfully proved the charges under section 457/302 read with section 34 of the Indian Penal Code against the accused persons namely Sri Pratap Nath Choudhury @ Mantu and Sri Pranesh Nath @ Khokan beyond all reasonable and probable shadow of doubt for which the accused persons are found guilty for the offence punishable under sections 457/302 read with section 34 of the Indian Penal Code. Accordingly, I convict them all. They are in custody. I shall pass the sentence after hearing the convicts on the question of sentence.‖ Page 4 of 16 [8] Feeling aggrieved and dissatisfied with the judgment of conviction and sentence dated 04.05.2018, the accused-person preferred this present appeal before this Court.
[9] Mr. R. G. Chakraborty, learned counsel appearing for the appellant has submitted that the findings of the learned trial Court is perverse, illegal, unjustified, arbitrary, unwarranted in law and facts and as such, not tenable in the eye of law and liable to be set aside. He has further submitted that the court below has misread the evidence on record and the facts and arrived at an absolute illegal, wrong finding causing grave miscarriage of justice to the appellant.
[10] He has contended that the Court below held the convict appellant to be guilty of alleged offences on the basis of no evidence inasmuch as, the evidence on record does not constitute the alleged offence and in no case implicated the appellant in the commission of offence. The Court below ought to have held that the presence of the convict appellant at the alleged place of occurrence is absolutely doubtful and on the basis of such, the appellant could not be legally convicted for the alleged crime.
[11] Mr. Chakraborty, learned counsel has further stated that the Court below relied on an improved version of all the PWs illegally convicted and sentenced the appellant only on surmise and conjecture. The appellant was convicted only on the evidence of PW-1. The evidence of prosecution suffers from infirmities and on the face of the evidence on record; there is no scope to presume that the accused to be guilty and more so, none of the witnesses of the prosecution did see to commit the offence by the appellant herein.
[12] The prosecution tried to prove the circumstantial evidence showing any chain of circumstances but the Court below have failed to Page 5 of 16 appreciate the same. There is no eye witness of the alleged crime and only on circumstantial or basis of material evidence on record; the Court below has convicted the appellant. The prosecution has miserably failed to prove the charge levelled against the accused person.
[13] Mr. Chakraborty, learned counsel appearing for the appellant has raised a question whether PW-1, the approver can be trusted or whether the statement in the trial has been corroborated by other witnesses on the material particulars. In this regard he has placed reliance on a decision of this Court in Sushil Choudhury v. The State of Tripura, reported in (2016) 1 TLR 179, wherein the court held as under:
―57. The law is well settled that in view of Section-133 of the Evidence Act read with Section-114 with illustration (b) of the Evidence Act that the approver's testimony has to be presumed suspect unless it is substantially corroborated in the material particulars. In Bhubon Sahu v. The King, AIR 1949, PC 257, it has been observed by the privy council that:
―Reading these two enactments, together the courts in India have held that whilst it is not illegal to act upon 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 upon 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 he evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the courts on the phrase corroborated in material particulars.‖ [14] The word 'corroboration' means not mere evidence tending to confirm other evidence. In DPP v. Hester, (1972) 2 ALL ER 1056, Lord Moriss said:
― The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible.Page 6 of 16
60. The interpretation from the sole respondent as made in respect of response of the accused person during his examination under section- 313 of the Cr. P.C. cannot be sustained. When the guilt is established by direct evidence or by circumstantial evidence in terms of the principles as laid down in Sharad Birdhi Chand Sarda v. State of Maharashtra then the accused has right or under obligation to explain or expose the special knowledge for purpose of proving his innocence. In that event, if silence is maintained or cogent explanation is not given, that can be used as the missing link in the chain of circumstances.‖ [15] He has submitted that the weapon of offence i.e. the Dao was not proved as the blood stain found in the Dao has not been matched with the wearing apparels of the appellant. But the investigating officer has stated that he has recorded the discovery statement. But PW-17 has not proved the discovery statement.
[16] Without dwelling upon much on that aspect, Mr. S. Ghosh, learned Addl. P.P. in all fairness has submitted that the present case does not come within the purview of the definition of Section-302 of IPC rather it comes within the ambit of the definition of Section-460 of IPC. For the purpose of reference, Section-460 of IPC may be reproduced hereinbelow:
―460. All persons jointly concerned in lurking house-trespass or house- breaking by night punishable where death or grievous hurt caused by one of them.--If, at the time of the committing of lurking house- trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.‖ [17] Before determining the case in hand, let us have a glimpse at the relevant statements of some relevant witnesses of the prosecution. Coming to the evidence of PW-1, Ratan Roy has deposed that on 11.09.2016, Sunday in the evening at about 7.30 pm he returned from Khedacherra at his house and thereafter, he went to the culvert of Sankar where he usually used to go to consume liquor along with Pranesh and Page 7 of 16 Pratap Nath @ Mantu and they used to go there as people had rare movement in that area and coming to that culvert he found Mantu @ Pratap Nath and Pranesh Nath were taking liquor and meat and he also participated with them and consumed liquor and meat and thereafter, he along with Mantu and Pranesh went to a tilla in front of house of Mantu and there also they consumed little quantity of liquor and at that place Mantu and Pranesh had some discussion. He has further deposed that thereafter, Pranesh went to his house and brought one dao of cutting bamboos and they asked him to go with them to the house of Akhil Bhatt and thereafter, he followed them to the house of Akhil Bhatt and they went there for the purpose of committing theft and there on a bank of stream (cherra) he sat for about 2 hours and when it would be 1.00 pm at the dead of night them Mantu @ Pratap and Pranesh entered in the main gate of Akhil Bhatt and he also followed them and Pratap and Pranesh asked him to stand under a litchi tree near a bamboo bush situated inside the house and asked him to notice whether anybody would come or not.
[18] He has again deposed that then Mantu and Pranesh started to dig earth to enter into the hut and they also broke some portion of thatched wall of the hut and thereafter, they lighted electric bulb in that hut after making entry through that hole into the hut and they also opened the door and within 5 or 6 minutes he heard cries of a female from inside that hut saying 'Mago Mago' and out of fear he left that place and went home. He has again deposed that on the next morning he went to the house of Bunu Rajkumar at about 7.00 am and in that house liquor was being sold and Mantu and Pranesh also went there and he found them present in that house after he went there and then he asked them to disclose what happened on the previous night and then Mantu and Pranesh told him that a female of that house had identified them and name of that female was Page 8 of 16 Jayanti Bhattacherjee and they killed Jayanti Bhattacharjee. He has further deposed that regarding murder of Jayanti Bhattacherjee police arrested him and also the other accused persons and during interrogation he admitted all this facts to police and police also recorded his statements and subsequently, police submitted charge sheet and when charge sheet was framed he did not admit the facts of his confessional statements made by the police.
[19] He has also deposed that subsequently, during trial police convinced him and he agreed to disclose of the entire facts and police sought pardon for him from the court and subsequently police produced him before the court and he also admitted before the court that he would disclose the entire fact truly and on his disclosure before the court, court allowed him to depose as a prosecution witness and accordingly he deposed. He has identified Pratap Nath @ Mantu and Pranesh Nath in the dock. He has further deposed that the dao by which the accused persons committed murder had a wooden handle and that dao is normally called as cuba dao and on production of the seized dao before him he told that the seized dao looks like the dao of Pranesh Nath.
[20] PW 2, Nandalal Bhattacharjee has deposed that he is the informant of this case and that information was given to the Office in charge of Dharmanagar PS in respect of murder of his mother Jayanti Bhattacharjee and deceased Jayanti Bhattacherjee was his step mother and she used to stay at their original house at West Dewanpasa and he used to stay Soroda Sarani, East Thana road at Dharmanagar. He has also deposed that on the previous date of incident he visited their house and met with his step mother because he was under taking some cleaning works at his house and the day when the incident took place he went to their original house at Dewanpasa at about 10 am and that day was 12th September, 2016 and Page 9 of 16 along with him one labour also went there and his name is Sailen Tati and he is a day labourer and he took him for cleaning their house. He has also deposed that when he went there the door of that house was found closed but not locked and he called his mother but there was no response and he just pushed the door and the door became opened. Then he noticed that the dead body of his mother was lying on the mud made floor of the hut and the hut was made up of bamboo made wall which in commonly called 'Champa Khampa bera' with mud floor and tin roofing and windows were made up of wood and doors were also made up of wood. He has further deposed that in his house there was electricity and he noticed that body his mother was lying on the floor and nearby the body there was profused blood and so, he cried out and called neighborers and first Nitai Roy and wife of Bhuban Das came and thereafter, many other males and females also came and he informed Dharmanagar PS through mobile and apparently seeing the body of his mother he realized that some unknown persons had murdered his mother.
[21] He has again deposed that Police came on that date just before 10.30 am and the hut of his mother was attached with kitchen from where there was access to the hut of his mother and in the South-Eastern corner of the kitchen he found a man made hole in the hut making provision to take entry in the hut which is commonly known as Shind Kata and some portion of a bamboo made wall was also found cut. He has further told that when police came then he lodged FIR and he got the ejahar drafted through one reporter namely Koustab Bhattacherjee. Who is considered to be his younger brother cum friend and he simply apparently go through the FIR and put his signature but he could not apply his mind and he proved his signature in the FIR as Exhibit-1. He has also deposed that he submitted the FIR on 12th September 2016 and after police came, police Page 10 of 16 also prepared inquest over the body of his mother and he proved his signature in the inquest report as Exhibit-2.
[22] He has also deposed that he had seen numbers of cut injuries on the face, head and on body of his mother and police seized blood samples from the body of his mother through gauze cloth, both from the left and right hand of the deceased and also from her face and a few bamboo stick containing blood stain and he proved his signature in the seizure list dated 12.09.2016 at about 12.10 hours as Exhibit-3 and he also proved the three bamboo sticks as Exhibit-MOI, MOI/ a and MOI/ b. He has further deposed that after post-mortem examination police also collected samples of stomach, kidney and liver of the deceased and blood sample of the deceased in gauze pieces, her vaginal swab and some hair from the fist of the deceased from Dharmanagar hospital and he signed in the seizure list and he proved his signature in the seizure list as Exhibit-4 and according to him in connection with this case police arrested three persons but he did not know them.
[23] PW-16, Dr. Subhankar Nath has deposed that on 18.11.2016 he was posted as Deputy Director, DNA Typing Division State FSL, Tripura and on that date the division received eight exhibits marked as Exhibit-A, Exhibit-B, Exhibit-C, Exhibit-F, Exhibit-G1, Exhibit-G3, Exhibit-H1 and Exhibit-H2 from Biology/ Serology Division on 01.10.2016 in connection with Dharmanagar PS case number 2016/DMN/051 dated 12.09.2016 U/S 302 IPC forwarded by SDPO, Dharmanagar, North Tripura and he examined the above eight exhibits as received from Biology/Serology Division between 18.11.2016 and 15.12.2016 and submitted an interdivisional examination report.
Page 11 of 16He has again deposed that when he received the samples of Biology/ Serology division at that time In-charge of Biology/ Serology was Dr. SabbyaSachi Nath, Senior Scientific Officer and he knows the handwriting and signature of Sabbya Sachi Nath and he proved another report of Sabbya Sachi Nath in connection with this case from Biology/ Serology Division as Exhibit-12 as a whole. He has further deposed that Biology/ Serology Department only sent the portion of exhibits which they found positive in respect of human blood and in respect of exhibits where partial of female genetic profile was generated i.e. Exhibit-B and Exhibit-C I did not give any opinion since it was partial and those were swab collected from the right hand of the deceased and swab collected from the facial region of the deceased.
[24] PW-17, James Darlong representative of the Executive Magistrate as directed by his Superior Officer first went to the house of Nilu Sabdakar and from that house police recovered one Dao as a weapon offence and police seized the same in presence of witnesses and he signed in the seizure list as he was present there and he proved his signature in the seizure list as Exhibit-8/b. He has also deposed that along with the police two accused persons namely, Pranesh Nath and Pratap Nath Choudhury accompanied and Pranesh Nath had brought the Dao from that house and it would be about 2.45 PM and thereafter, on that date they went to the house of Pradip Das where Pranesh Nath was a tenant and the accused persons also went there and from that house police seized one ganzy where something was written in white colour which appear to be 'I am feeling lost without you' and Pranesh Nath had produced the same to the police and he signed in the seizure list and he proved his signature in the seizure list asExhibit-10/a and he identified that ganzy marked as Exhibit-MO-X and he also identified the seized Dao marked Exhibit MO-VIII.
Page 12 of 16[25] PW-19, Dr. Chaitanya Reang is the medical officer who conducted PM examination of deceased Jayanti Bhattacharjee and he proved his report as Exhibit-13 and on perusal of Exhibit-13 it reveals that cause of death of Jayanti Bhattacharjee was due to both multiple brain injuries and blood loss resulting from multiple incised wounds on head and other parts of body caused by sharp edged weapon which was homicidal in nature.
[26] Mr. Chakraborty, learned counsel has argued on the point of approver and its significance. We are unable to accept the contention of the learned counsel for the appellant that PW-1 whose evidence we shall presently refer should be considered as accomplices and therefore his evidence is required to be corroborated in material particulars before being accepted. On the proved facts, even those who gave illegal gratification to the appellant cannot be considered as accomplices as the same was extorted from him. Though PW-1 can be considered as interested witnesses as regards his evidence relating to trap, as a matter of law, it is not correct to say that his evidence cannot be accepted without corroboration.
[27] In Ram Narain v. State Of Rajasthan reported in (AIR 1973 SC 1188. 1192), Dua, J. while speaking for the Court dealt with the subject and observed:
―An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associates by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional to please the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason Page 13 of 16 that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver's testimony which is clearly admissible is also worthy of belief credit. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions in that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.' [28] After meticulous appreciation of the evidence on record and the submission as advanced by Mr. S. Ghosh, learned Addl. P.P., we are of the view that the present case may not come within the purview of the definition of Section-302 of IPC rather, it comes within the ambit of the definition of Section-460 of IPC.
[29] A bare reading of the above provision shows that every person who is jointly concerned in committing the offence of lurking house trespass by night or house breaking by night is to be punished with life imprisonment where death has been caused or with imprisonment which may extend to ten years where grievous hurt has been caused to any person. This joint liability is based upon the principle of constructive liability. Thus, the person who has actually committed the death or grievous hurt would be liable to be punished under the relevant provisions i.e. Section 302 or Section 326, as the case may be, while committing the offence of lurking house trespass by night. It is possible that common intention or object be not the foundation of an offence under Section 460 IPC. Thus, to establish an offence under Section 460, it may not be necessary for the prosecution to establish common intention or object. Suffice it will be to establish that they acted jointly and committed the offences stated in Section 460 IPC. The principle of constructive liability is Page 14 of 16 applicable in distinction to contributory liability. This Court in the case of Abdul Aziz v. State of Rajasthan [(2007) 10 SCC 283], clearly stated that if a person committing housebreaking by night also actually commits murder, he must attract the penalty for the latter offence under Section 302 and the Court found it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of housebreaking and that he can only be dealt with under Section-460.
[30] In the case of Sohan Singh Kesar Singh v. State of Punjab, reported in AIR 1964 Punjab 130, Sohan Singh was convicted under Sections 302, 380 and 457 IPC; he was sentenced to death under Section 302 IPC and to rigorous imprisonment for three years under each of the Sections 457 and 380 IPC. Sohan Singh preferred an appeal against his conviction and sentence. One of the arguments advanced on behalf of Sohan Singh was that the offence in question fell within the purview of Section 460 IPC and not under Section 302 IPC. It was argued that while committing the offence of house-breaking by night, the accused could be punished only under Section 460 IPC. It was in the context of this argument that the High Court held as follows:
"Section 460 merely provides for constructive liability of persons committing or concerned in, 'inter alia' house-breaking by night in the course of which death is caused by one of the offenders and it prescribes enhanced penalty for the joint offenders. To attract this section it matters little as to who actually causes the death, for, everyone jointly concerned in committing the house-breaking is liable to the enhanced penalty under this section if death is caused in the course of the offence, no matter who is really responsible for the death. It does not, as indeed it cannot, be considered to serve as an exception to Section 302, Indian Penal Code. If a person committing house- breaking by night also actually commits murder he must attract the penalty for this latter offence under Section 302 and I find it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of house- breaking, and that he can only be Page 15 of 16 dealt with under Section 460. Neither the language of Section 460 nor the scheme of Indian Penal Code nor logic and common sense would seem to support this contention which I unhesitatingly repel."
[31] Though the evidence of approver in the present case has not been demolished by the counsel for the appellant, the circumstantial evidence read in the light of PW-1, the approver evidence has relevance to hold the accused-person, the appellant herein as guilty. Now, the point for consideration before this Court as to who killed the deceased. As per evidence of PW-1 both accused entered into the house but who attacked the deceased with dao, the weapon of offence causing death of the deceased is not established. In view of the same, this Court feels it is not a case for 302 of IPC as the crime is not proved beyond reasonable doubt. But admittedly, both the accused entered into the house trespassing and deceased is found dead, thus attracts Section-460 of IPC.
[32] In our opinion this section was intended to provide for the punishment of persons who are jointly concerned in the committing of the house-trespass or house-breaking altogether irrespective whether they were the persons who caused or attempted to cause death or grievous hurt. This may be interpreted to mean that Section-460 provided for the punishment of the person who actually caused or attempted to cause death or grievous hurt while committing lurking house-trespass or house-breaking.
[33] Consequently, the sentence of life imprisonment, imposed by the impugned judgment of the Court below, shall stand substituted by the sentence of rigorous imprisonment for ten years. The period of detention undergone by the convict during investigation, trial and sentence passed vide impugned judgment dated 04.05.2018 be set off from the period of sentence as passed hereinabove.
Page 16 of 16[34] With the modification in the above terms, the instant appeal stands partly allowed and thus, disposed of. Pending application(s), if any, also stands disposed of.
JUDGE JUDGE A.Ghosh