Tripura High Court
Prasanta Das @ Barun vs The State Of Tripura on 11 June, 2018
Author: S. Talapatra
Bench: S. Talapatra
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A (J) NO.13 OF 2016
Prasanta Das @ Barun
S/o Lt. Sukumar Das,
of Dalura, P.S. Ranir Bazar,
Dist. West Tripura.
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. B. Majumder, Adv.
For Respondent(s) : Mr. B. Choudhury, P.P.
HON'BLE THE CHIEF JUSTCE MR. AJAY RASTOGI
HON'BLE MR. JUSTICE S. TALAPATRA
Reserved on : 02.05.2018
Pronounced on :11.06.2018
Whether fit for reporting : YES
JUDGEMENT
BY THE COURT(Per Hon'ble Mr. Justice S. Talaparta,J.) This is an appeal by the convict under Section 374(2) of the Cr.P.C from the judgment dated 15.07.2008 delivered in the ST 120(WT/A) 2007 by Additional Sessions Judge, West Tripura, Agartala, Court No.3.
2) By the said judgment, the appellant has been convicted under Section 302 of the IPC. As consequence of conviction, the appellant has been sentenced to suffer rigorous Page 2 of 20 imprisonment for life with fine of Rs.10,000/-, in default of payment thereof to suffer simple imprisonment for 3(three) months.
3) The genesis of the prosecution case can be located in the written complaint [Exbt-P-4] filed by one Pankaj Paul (P.W-1). By the said complaint it was informed to the Officer-in- Charge, Ranir Bazar Police Station that on hearing the loud cries, the informant rushed to the house of Sukumar Das. On arriving there he found Prasanta Das was standing with the blood soaked 'dao' [a sharp-edged cutting weapon] in his hand in the courtyard, in front of the verandah of the dwelling hut. The throat of the wife of Prasanta Das namely Namita Das was separated from her body. The blood was oozing out continuously. Prasanta Das @ Barun Das told him by showing the blood stained 'dao' in his hand that he had separated the throat of his wife, Namita Das by hacking blows. When he was asked about the motive behind the killing, the appellant had stated to the informant that the character of Namita was bad. At that time mother of Prasanta namely Smt. Santilata Das was close to the place of occurrence and one domestic help namely Smti Krishna Roy was working in the close proximity of the place of occurrence. Suddenly, the appellant had thrown the 'dao' of his hand in the backyard of his house.
4. On the basis of the said written complaint dated 11.01.2007, Ranir Bazar P.S. Case No.04/2007 under Section 302 was registered and taken up for investigation. On completion of the investigation, the final report chargesheeting Page 3 of 20 the appellant was filed. The case was thereafter committed and the charge was framed under Section 302 of the IPC by the Additional Sessions Judge, West Tripura, Agartala, Court No.3. The said case was transferred to the said Court. The appellant denied the charge and pleaded innocence.
5. In order to substantiate the charge, as many as 10(ten) witnesses including the informant (P.W-1), mother of the appellant (P.W-3), the domestic help (P.W-4) and the investigating officer (P.W-10) were adduced. After recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C when he reiterated his plea of innocence. Finally, by the impugned judgment dated 15.07.2008, the appellant was convicted as stated.
6. Being aggrieved by the judgment dated 15.07.2008 this appeal has been filed. Mr. B. Majumder , learned counsel appearing for the appellant has submitted that P.W-4 cannot be treated as the eye witness in as much as she was on the roof and the occurrence took place under the roof of the varendah and as such it is highly improbable that some one could see the occurrence from the roof. Despite that she had claimed that she had seen the occurrence. The said witness therefore cannot be trusted. He has further submitted that impression has been created that the weapon of offence was discovered at the instance of the appellant but from scrutiny of the evidence it would appear that mother of the appellant namely Smt. Santi lata Das P.W-3 took out the weapon of offence i.e., 'dao' and handed over the same to the investigating officer (P.W-10). Page 4 of 20 Other witnesses including the mother of the appellant are not the eyewitnesses, they have rushed to the place of occurrence immediately after the occurrence and as such nobody has seen the appellant to hack or give the blow on his wife, Namita. Mr. Majumder, learned counsel has strenuously submitted that neither the weapon or any other instrument nor the so called blood stained wearing apparels of the accused person were sent for serological examination and as such the prosecution has withheld the material evidence from the Court. It has jeopardised the fair trial and hence, adverse inference against the prosecution be drawn. There is no proof that the seized 'dao' was used in commission of the said offence nor is there any proof that the appellant committed said offence in as much as the blood stained wearing apparels were never examined serologically. Finally Mr. Majumder, learned counsel has submitted that if the entire evidence is appreciated, it would be apparent that a few witnesses have categorically stated of involvement of the appellant. But those statements are bordering on surmise.
7. Mr. Majumder, learned counsel appearing for the appellant has submitted that the so called extra-judicial confession as brought in the evidence has no evidentiary value, even there is no element to show that such confession was made by the accused-appellant voluntarily.
8. In support of his contention Mr. B. Majumder, learned counsel has relied on few decision of the Apex Court. In S.K. Page 5 of 20 Yusuf Vs State of West Bengal reported in (2011) 11 SCC 754 it has been observed inter alia as under:
" The nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of the Evidence Act, 1872 is very limited. If an accused deposes to the police officer the fact as a result of which the weapon with which the Crime is committed is discovered, and as a result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused."
[Para-34]
9. For the appellant, reliance has been placed on Sahadevan and another Vs. The State of Tamil Nadu reported in (AIR 2012) SC 2434.
It has been observed in the said report that extra- judicial confession shall be established to be made voluntarily and in a fit state of mind. The words of the witnesses must be clear and unambiguous and should clearly convey that the accused is the perpetrator of the crime. Even the extra- judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it.
Upon a proper analysis of the precedents, the Apex Court has further observed that it will be appropriate to cull out the principles, which lay the test to determine whether an extra judicial confession can be admitted or not or whether that can form the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the Page 6 of 20 veracity of circumstances where the prosecution had heavily relied upon an extra-judicial confession alleged to have been made by the accused.
The principles are as follows:
(I) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
10. According to Mr. Majumder, learned counsel, so called confessional statement made by P.W-1 and P.W-2 are grossly unacceptable in the terms of those principles as laid down by the Apex Court.
Finally, Mr. Majumder has relied on a decision in Indra Dalal Vs. The State of Haryana reported in (2015) 11 SCC 31 on the aspect of confession in the police custody etc. Page 7 of 20 For the purpose of reference, the paragraphs which have been relied by the of the appellant are extracted hereunder:
"15. Mr. Sushil Kumar, learned Senior Counsel appearing for the appellants Indra Dalal and Bijender, argued that these confessional statement were admittedly recorded after the arrest of these accused and when these accused were in police custody. Therefore, such statement were inadmissible having regard to the provisions of Section 25 and 26 of the Evidence Act, 1872 Section 25 of the Evidence Act mandates so, in certain and unequivocal terms, as is clear from the language thereof. It reads as follows:
" 25. Confession to police officer not to be proved.- No confession made to a police officer, shall be proved as against a person accused of any offence."
Likewise, Section 26 makes any such statement inadmissbile if given when in police custody. It reads:
26. Confession by accused while in custody of police not to be proved against him.-
No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation.- In the section ' Magistrate' does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)."
16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may be otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.
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17. The word "confession " has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgement of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissbile when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible"
11. Mr. Majumder, learned counsel has submitted in the instant context that the trial Court has committed serious illegality by returning the finding which provided the basis of conviction.
12. We find that there is no compelling reason to disbelieve the statements of PW 1, 2, 3 & 8 regarding killing of the deceased Namita by the appellant. The appellant purportedly confessed about killing of his wife before these witnesses including the investigating officer (P.W.-10). Whether such confessions can be accepted as the extra- judicial confession? It is settled law that extra judicial confession is a piece of evidence which can be based for conviction, as it has been well corroborated by the testimony of the sole eye witness, P.W.-4, Smti Krishna Roy. P.W-5 Dr. Ranjit Das who conducted the post mortem examination over the dead body of the deceased Namita found some injuries on the body of Namita which are according to him, Page 9 of 20 might be caused by the sharp cutting weapon. Thus, the medical evidence has corroborated the nature of injuries and weapon of offence as described by those witnesses.
13. Appearing for the State, Mr. B. Choudhury, learned P.P., has clearly submitted that in the testimonies of P.W-1, P.W-2, P.W-3 & P.W-4 read with P.W.-10, it will be crystal clear that it is none but the appellant who has 'murdered' his wife Namita.
Mr. Choudhury, learned P.P, has categorically stated that the reports as placed by Mr. Majumder, learned counsel has no relevance in the present context. Mr. Choudhury, learned P.P. has further submitted that P.W-1, P.W-2 and P.W.-4 are independent witnesses. There was no attempt by the defence to show that there existed inimical relation of the appellant with P.W-1, P.W-2 and P.W-4 and hence there cannot be any reason to suspect the testimony of P.W-1, P.W-2 & P.W-3. P.W-1, P.W-2 & P.W-3 have categorically stated that they saw the appellant standing with blood-soaked 'dao' in his hand beside the body of his wife.
In reply, Mr. Majumder, learned counsel for the appellant has restated that the prosecution story is highly improbable and, hence, this Court should interfere with the finding of conviction.
14. Mr. Choudhury learned P.P., has supplement by saying that the confessional statement and the transaction that followed immediately after the occurrence would Page 10 of 20 clearly demonstrate the involvement of the appellant in the commission of murder. On analysis of the circumstantial evidence, it would surface that it is none but the appellant who has committed the murder of his wife. However, Mr. Choudhury, learned P.P., has submitted that some defects in the investigation are manifest on the face of the records, viz, not sending the blood soaked apparels for serological test.
15. Finally Mr. Choudhury, learned P.P., has reasserted that a cumulative reading of the prosecution evidence would be compelling to infer that the appellant, but none, has committed the murder.
For appreciating the challenge as made in this appeal the evidence as laid by prosecution is required to be revisited. In the written complaint (Exbt P.4) PW.1, a person from the neighborhood namely Prakash Pal has disclosed to the Officer-in-Charge, Ranir Bazar Police Station that on hearing a loud cry in Dalura Para at about 11.40 in the morning he along with one Ramesh Debbarma of that locality rushed to the house of Sukumar Das. On appearing in the place of occurrence, he noticed that the appellant was standing with a blood soaked 'Dao' ( a sharp edged cutting weapon) in his hand in the courtyard which is in front of the verandah of his dwelling hut and the throat of his wife namely Namita Das was seen separated from her body". PW.1 has also testified that he saw blood oozing out continuously. Then the appellant told the persons present there by showing blood stained 'dao' in his hand Page 11 of 20 that he had separated the throat of his wife (Namita Das) from her body by giving hacking blows by the 'dao'.
When P.W.1 asked him why he had killed his wife, the appellant responded by saying that his wife's character was doubtful. In that place, according to P.W. 1 the domestic help of the appellant namely Smti. Krishna Roy, P.W.4, was also present.
16. P.W- 2, Manoj Debbarma, another witness from the neighbourhood has testified in the trial that on 11.01.2007 at about 11.40 a.m on hearing cries from the house of the appellant, he rushed there and found beheaded body of the wife lying in the courtyard and the appellant was standing by the side of the body carrying a 'dao' in his hand. He has stated that in their presence the appellant confessed that he had killed his wife by the said 'dao'. P.W-2 has also confirmed the presence of maid servant namely Smt. Krishna Roy (P.W-4). In their presence the appellant concealed the blood stained 'dao' in the back side of his dwelling hut. He had informed the police over the phone. In his presence, the police officer seized the blood stained 'dao' and one blood stained white colour cloth from wearing of the deceased.
He has confirmed his signature on the seizure list (Exbt-P-1) and identified those seized materials (Exbt .M.O.1 & Exbt.M.O.2). He was also witness to the seizure of blood stained earth and wearing apparels of the deceased. He identified his signature on the seizure list (Exbt-P-2). Even, he was the witness also to the inquest procedure. He had Page 12 of 20 put his signature on the inquest report (Exbt.P-1). He has testified that at the instance of the appellant the blood stained 'dao' (Exbt.M.O.1) was recovered.
Even though he in the cross examination has stated that he had not stated to the police officer that the appellant told him that the character of his wife was not good but such statement [Exbt-A] was found. He had given further details by stating that " after arrival myself and Pankaj caught hold Prasanta when he threw the dao on the back side of his dwelling hut. It is not a fact that Prasanta did not confess to us that he had killed his wife and it is not a fact that we did not see prasanta was standing by the side of the beheaded body of his wife carrying a dao in his hand. Darogababu did not put any identification mark on Ext.m.o.1 at the time of seizure"
17. P.W-3, Smt. Santi Lata Das, the mother of the appellant has turned to be a vital witness in the case. She has stated that when she was working inside the house on 11.01.2007 at around 11.30 a.m she heard cry of Namita from the courtyard and she immediately came out of his room and found the beheaded body of Namita in the courtyard and her head was lying adjacent to her beheaded body. The appellant was standing by the side of the death body carrying a 'dao' in his hand. She raised alarm. On hearing her alarm the villagers came to her house, among them was Pankaj Pal and Manoj Debbarma, P.W-1 & P.W.2 respectively. The villagers apprehended the appellant and detained him there till arrival of the police . She has further Page 13 of 20 stated that " Prasanta confessed in presence of police and other villagers that he had killed his wife by means of dao. Darogababu recovered and seized the dao by which Prasanta inflicted blows at the neck of Namita". She had identified her signature on the inquest report. Even though she has denied to have stated to the police officer that the appellant told her that the character of the deceased was not good, but such statement was found in the statement recorded under Section 161 of the Cr.P.C [Exbt.B].
In the cross examination she had made the following statement "I have not stated to darogababu that I concealed the dao on the back side of our dwelling hut and I took out the dao from that conceal place and handed over to darogababu. But such statement is found in her 161 Cr.P.C. statement. This portion is marked as Ext.C subject to proof by the I.O. It is not a fact that in order to grab the property of Prasanta, we falsely implicated him in this case. It is not a fact that Arun had illicit intimacy with Namita."
18. P.W. 4, Smt. Krishna Roy, another witness who was present at the time of transaction of offence has stated that on that fateful date and time she heard a cry of Namita, wife of the appellant and from the roof of the building she saw that the appellant was inflicting 'dao' blows on the neck of Namita and resultantly, her head got severed from her body and fell in the ground. Blood was oozing out from her neck. On seeing the same, she raised alarm, then the mother of the appellant came out from his hut.
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She has further stated that the " The incident took place in the varendah and due to injuries beheaded body of Namita fell on varendah and the severed head fell in drain between varendah and courtyard. On hearing my cry, villagers came to the house of Barun. At the time of incident myself, mother of Barun, wife of Barun and Barun were present in that house.
She identified the appellant in the dock. She denied the suggestion that she did not see the appellant inflicting 'dao' blow on the neck of the deceased. Even all the suggestion advanced to her in the cross examination were denied.
She has testified in the trail as follows:
" I have not stated to darogababu that I concealed the dao on the back side of our dwelling hut and I took out the dao from that concealed place and handed over to darogababu. But such statement is found in her 161 Cr .P.C statement. This portion is marked as Ext. C subject to proof by the I.O."
19. P.W. 5, Ratan Kumar Das is the reporting officer and he had stated nothing of material importance.
20. P.W.6, Dr. Ranjit Kr. Das had conducted the post mortem examination over the death body of Namita Das (the deceased) and he on examination found the following injuries on the body of Namita:
"(1) the body is beheaded at the level of root of neck.Page 15 of 20
(2) incised wound over back of head.
(3) incised wound over back of upper part of neck just below the hair margin.
(4) incised wound"
He has categorically stated in the trial that the wound are all antimortem and fresh in nature. He has categorically opined that the cause of death was due to injuries as stated above. He identified his report [Exbt-5].
In the cross examination he has categorically stated that he had specifically mentioned in his opinion that all the injuries were caused by moderately heavy sharp cutting weapon.
21. P.W-7, Rajesh Shil is the scribe. He wrote the ejahar at the dictation of P.W.1 and he has stated nothing more, but identified the ejahar which is written by his own hand writing [Exbt-4].
22. P.W.-8, Tarun Kumar Das is the younger brother of the appellant. He was not at home but on his return he learnt from his mother that the appellant had killed Namita. In his presence, the police officer seized the 'dao' and the wearing apparel of Namita and blood stained earth by preparing 2(two) separate seizure lists. He had identified those seizure lists along with his signatures thereon. In the cross examination, his statement made in the examination- in-chief could not be dented.
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23. P.W-9, Jugal Debbarma is the person who transported the beheaded body and the seperated limb of the deceased to BRAM Hospital for post mortem examination . After post mortem examination, the dead body was handed over to the relatives. This witness was not cross-examined.
24. P.W.10 Benimadhab Deb, investigated the case and he has briefly stated how he had carried out the investigation. He had received the first information from one Manoj Debbarma (P.W-2) that an incident of assault resulting in murder had taken place in the house of Sukumar Das of Dalura. He had immediately rushed to the place after entering the said information in the police station dairy. On arriving at the place of occurrence, he found the beheaded body of Namita Das lying in the courtyard of the house of Prasanta Das alias Barun, the appellant herein. He has also stated that prasanta was there being detained by the villagers namely Pankaj Pal and Manoranjan Debbarma P.W-1 & P.W-2 respectively. Pankaj Pal handed over a written complaint, in the place of the occurrence and he arrested the appellant and prepared the hand sketch map with index. He has stated categorically that the police had recovered 'dao' at the instance of the accused from the bank of the pond situated in the backside of the dwelling hut of the appellant.
P.W.10 has further testified that the appellant confessed in presence of the villagers that by the said 'dao' he had killed his wife. For that reason he had seized that Page 17 of 20 'dao' and prepared a seizure list. He had also seized the wearing apparel of the accused. Having collected the post mortem examination report, he filed the charge sheet under Section 302 of IPC as he had found a well established prima facie case against the appellant.
The suggestions denying the statement he made in the examination-in-chief are all denied, but on reference to Exbt. A, B, C & D he had admitted that he had recorded those statement being stated by the witnesses.
25. For the purpose of further elucidation it would be appropriate to refer the seizure list dated 11.01.2007 [Exbt- 3]. It surfaced from the said seizure list that P.W. 10 seized a blood stained 'dao' and the said 'dao' was recovered by the appellant from the bank of pond and that place was just behind the dwelling hut of the appellant.
26. Having regard to the evidence as recorded at the instance of prosecution, this Court is of the view that so far the confessional statements are concerned, those cannot be utilized as the legal evidence against the appellant. Moreover, except the ocular evidence, no other scientific evidence has been placed by the prosecution in the evidence to show the said 'dao' was used as the weapon of offence. But all the prosecution witnesses those who were present in the place of occurrence have at the time of transaction of offence and those who had immediately rushed to the place of occurrence clearly stated on identification of the said 'dao' that the said 'dao' was used Page 18 of 20 for hacking the deceased. As such, even in absence of scientific evidence this Court does not find any difficulty to hold that the 'dao' which was seized by the seizure list dated 11.01.2007 [Exbt-3] was the weapon of offence used by the appellant for hacking his wife. After keen reading of the evidence of P.W-3 & P.W-4, this Court finds that the circumstances those have been proved by these 2(two) witnesses are completely against the hypothesis of innocence of the appellant. More over P.W-4 is a witness who can be relied because no enmity or purpose could be imputed on her character in order to disbelieve her. She has categorically given her eye witness account of the mindless hacking indulged by the appellant.
27. Mr. Majumder, learned counsel has made a robust endeavour to make us believe that P.W. 4 was not in a position to see the transaction from the roof as the occurrence took place in the varendah, according to her and as such she cannot be believed. The inclusive description that she has given has generated confidence in the said witness. More over the varendah and the courtyard form a small zone where the said occurrence took place. Insignificant descriptional discrepancy cannot take the substance from the testimony. That apart, P.W 3 had within a moment come out and seen the beheaded body of Namita and by the said of the body the appellant was standing with a blood soaked 'dao' in his hand. On alarm of P.W.3 & P.W-4, the villagers rushed in. P.W. 1 & P.W. 2 were the first among the villagers to reach the place of occurrence. They have Page 19 of 20 without any discrepancy clearly stated what they noticed on appearing in the place of occurrence. They saw the appellant standing by the side of the beheaded death body of his wife and the blood stained 'dao' in his hand.
28. The forensic evidence clearly corroborates the statements of P.W. 1, P.W-2, P.W-3, P.W-4 & P.W-10. The immediate post-occurrence transaction is also relevant in some cases. This is one of such cases in as much as P.W-1 & P.W-2 without delay appeared in the place of the occurrence and as such what they saw, even though that is the post occurrence transaction would be admitted as the evidence in view of Section 6 of the Evidence Act, which provides that:
" Facts which, though not is issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
29. A statement to be res gestae should be made substantially of contemporaneous act or the act immediately after the occurance, so that there is no opportunity for reflection or fabrication (Gentela Vijayavardhan Rao & anr Vs. State of A.P. reported in (1996) 6 SCC 241)
30. Having applied that principle of res gestae (Section 6 of the Evidence Act), this Court does not have any doubt in mind that it is the appellant and the appellant alone committed the murder of Namita Das, the deceased. Page 20 of 20
Having observed thus, this Court does not find any difficulty in affirming the finding of conviction as returned by the trial court. In the result this appeal stands dismissed. Send down the LCRs forthwith.
JUDGE CHIEF JUSTICE suhanjit