Tripura High Court
Shri Ranjit Datta vs The State Of Tripura on 21 August, 2017
Bench: Chief Justice, S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
Crl. App.(J) No.17/2014
1. Shri Ranjit Datta,
S/o Late Tapan Datta of West Noabadi,
Sen Para, P.S - Bodhjungnagar,
Dist. - West Tripura.
2. Sri Sanjit Datta alias Chowa,
S/o Late Tapan Datta of West Noabadi,
Sen Para, P.S - Bodhjungnagar,
Dist. - West Tripura.
3. Sri Partha Datta alias Baisa,
S/o Late Tapan Datta of West Noabadi,
Sen Para, P.S - Bodhjungnagar,
Dist. - West Tripura.
..... Appellants.
-: Versus :-
The State of Tripura.
..... Respondent.
_B_ E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE S. TALAPATRA Counsel for the appellants : Mr. B Deb, Advocate, Mr. S Rahman, Advocate.
Counsel for the respondent : Mr. R C Debnath, Addl. P. P.
Date of hearing : 25-7-2017.
Date of judgment & order : 21-08-2017
JUDGMENT & ORDER
[T. Vaiphei, C.J.]
This appeal is directed against the judgment dated 19-4-2014 passed by the learned Additional Sessions Judge, Curt No.2, West Tripura, Agartala, in Sessions Trial No.140 of 2011 convicting the three appellants U/s 323/304 Part- II read with Section 34 IPC and sentencing them to undergo rigorous imprisonment for 10 years for the offence punishable U/s 304 Part-II IPC. Crl. A(J) No.17/2014 Page 1 of 12
2. The case of the prosecution is that on 21-4-2008 at about 12 midnight, the three appellants and one Kartik Debnath entered the dwelling hut of Taju Mama (maternal uncle of the informant and PW-8) and assaulted him. Hearing the commotion, the informant (PW-1) and the deceased Iyer Hussain went inside the house of PW-8 and tried to restrain the assailants from assaulting him, but they assaulted PW-8 and the deceased by wooden file with the result that the deceased collapsed on the ground due to the injuries sustained by him and blood oozed out from his mouth and nose. Due to the seriousness of the injuries suffered by him, the deceased was immediately taken GB Hospital by an auto- rickshaw. The FIR was lodged by PW-1 on 22-4-2008 at 8.10 AM, which was registered as FIR No.08/2008 initially U/s 447/325/34 IPC. The deceased ultimately succumbed to his injuries on 23-4-2008 at 12.30 PM.
3. After investigation of the case, the police filed the charge sheet against the three appellants and two accused persons, namely, one Kartik Debnath and Basu Datta U/s 148/302/323 IPC (Section 302 IPC was subsequently as the deceased ultimately succumbed to his injuries) to face the trial. On the basis of the charge sheet, the trial court, on commitment, framed the charge U/s 302/323/148/149 IPC to which the appellants and the remaining accused pleaded not guilty and claimed to be tried. It may be noted that during the pendency of the trial, the co- accused Kartik Debnath died on 11-12-2012. In the course of trial, the prosecution examined as many as 15 witnesses and exhibited 11 documents and one material object to substantiate the charge against them. The case of the accused is that of total denial of the charge levelled against them. It may be noted that the co-accused Basu Datta was acquitted under Section 232 CrPC. However, it is not understood as to why separate procedure was adopted in the case of this co-accused when the entire case could be disposed of at the same time, particularly, when the appellants did enter upon their defence. Anyway, the appellants were ultimately convicted and sentenced U/s 304 Part-II IPC by the impugned judgment. The appellants are now aggrieved by this and preferred this appeal.
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4. Unfolding his submissions, Mr. B. Deb, the learned counsel for the appellants vehemently contends that PW-1 in his examination-in-chief stated that on 21-8-2008, after about 10-30 PM, the appellants with Kartik Debnath entered the house of PW-8 and started to quarrel with him, he at that time rushed to the house of PW-8 hearing the commotion and at that time the aforesaid appellants assaulted PW-8 and himself with fist blows and wooden file and that at the same time, Ranjit Datta (A-1) struck the deceased with wooden file on his head, he, in his cross, however, revealed that on the date of the occurrence in the night at about 12/12.30 AM, he had gone to the house of PW-8 along with the deceased from his house and found PW-8 and A-1 in state of altercation from their respective houses, but he managed to stop whereafter both of them returned to their respective rooms. According to the learned counsel, this clearly shows that till 12/12.30 AM, no incidence of assault took place causing severe bleeding injuries on the deceased. Moreover, the reading the examination-in-chief of PW-1 and his cross examination in juxtaposition, it becomes clear that his versions are contradictory and cannot, therefore, be relied on for convicting the appellants. He points out that there is contradiction between the statements of PW-1 and PW-2 in so far as the time of occurrence is concerned, i.e. PW-1 said it was around 10.30 PM whereas PW-2 said it was about 11.30 PM, this contradictions coupled with the absence of such incidence up to 12.30 AM as per the statement of PW8 have raised serious doubt about the death of the deceased on that night. The learned counsel also draws our attention to the evidence of PW-3, who deposed that it was Sanjit Datta alias Chowa(A-2) who struck the deceased with wooden file on his head which is not consistent with the statement of PW-8, who stated that it was A-1 and the statement of PW-11, a neighbour, who stated that she found one wooden file at the hand of Kartik Debnath and vehemently contends that such inconsistent statements should not be made the basis for convicting the appellants.
5. The learned counsel further lays great emphasis on the statement of PW- 11 in her cross-examination that as a neighbour, she used to see PW-8 and the deceased quarrelling with each other day in and day out; that many people used Crl. A(J) No.17/2014 Page 3 of 12 to come to their house to stop their quarrel and that they also used to assault each other by use of lathis and strongly suggests that the death of the deceased could have been a family blood bath, for which no outsider had a part to play. It is also the submission of the learned counsel that such doubts have been strengthened by the following circumstances, namely, (i) the statement of the IO (PW-13) that the seized wooden file contained no mark of blood stain or that he did not find any blood stained at the PO as against the statement of PW-4 that the darogababu seized the blood-stained wooden file and blood stained earth from their house; (ii) no bed head ticket of the deceased was seized by the IO of the case and the non-examination of such bed head ticket as per the evidence of PW- 15; (iii) the discrepancy about the time of death as worked out by PW-15, which, if believed, would be on 22-4-2008 between 8 PM and 12-12.30 AM and (iv) the vital witnesses examined by the prosecution such as PW-1, PW-3, PW-4 and PW- 8, who are all related witnesses though their evidence also suffer from contradictions as pointed out earlier. He, therefore, submits that the trial court has not properly applied its mind in appreciating the evidence by leaving out vital evidence as to the existence of major contradictions, inconsistencies and discrepancies in the case of the prosecution and has in the process wrongly returned a verdict of guilt to the charge against the appellants. To fortify his various submissions, the learned counsel relies on Bhagwan Jagannath Markad and others v. State of Maharashtra, (2016) 10 SCC 537; Vijay Singh v. State of MP, 2002 Cri.L.J 299 and Toran Singh v. State of MP, 2002 Cri.L.J 3737.
6. On the other hand, Mr. R.C. Debnath, the learned Additional Public Prosecutor appearing for the State, supports the impugned judgment, which was passed after duly considering the evidence on record, and submits that no interference is called for. He, in particular, contends that the contradictions pointed out by the learned counsel appearing for the appellants are contradiction between the statements of witnesses in different stages of the proceedings where Section 145, Evidence Act cannot be invoked. In any case, the doubts sought to be raised by the learned counsel for the defence are minor in nature and are not Crl. A(J) No.17/2014 Page 4 of 12 sufficient to acquit the appellants by giving them the benefit of doubt. He submits that exaggeration of the rule of benefit of doubt in this case can only result in grave miscarriage of justice, after all, letting the guilty off is also doing injustice to the family of the victim, in particular, and the society, in general. He, therefore, submits that the appeal, which is devoid of merit, is liable to be dismissed. Strong reliance is placed by him on Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 to buttress his contentions.
7. As the main thrust of the argument of Mr. B. Deb, the learned counsel for the appellants, is that there is no sufficient evidence or, rather, there are contradictory versions of the prosecution witnesses creating serious doubts on the prosecution case, we shall straightway proceed to re-appreciate the evidence on record to find out whether the findings of the trial court are based on evidence which are free from reasonable doubt. Since PW-8 is the father of the deceased, whose alleged altercation with the appellant No.1(A-1) appears to be the genesis of the case, we proceed to examine his evidence at once. In his evidence, he testified that the incident took place about 5 years earlier, one evening between 10-30 and 11 PM, when A-1 threw a wooden file at him from his house and hit his leg and when he raised objection, A-1 told him that his target was not him but his dog and at the same time abused him in filthy language. He further deposed that soon thereafter, A-1 with his brothers, namely, A-2, A-3 and the said Kartik Debnath entered their residential complex armed with wooden file and assaulted him and his wife (PW-4) and then also assaulted his son by pulling him from inside the hut and that on hearing their scream of pain, their neighbours rushed to their house, but by that time the accused had fled away. All of them thereafter proceeded to GB Hospital for treatment. His son died the next day. PW-4 also got treatment from GB Hospital. In his cross-examination, he admitted that the deceased was before the incident sleeping at the house of his neighbour at a distance of 6 feet from his house and that after he was assaulted, the deceased took him inside the room and came out from the room. He stated that he has three other daughters, who were aged about 11, 10 and 9 years old respectively, who were present at the house at that time. From his evidence, he did not Crl. A(J) No.17/2014 Page 5 of 12 mention anything about the arrival of PW-1 at the scene of occurrence or his being accompanied by the deceased who was said to be sleeping at his house, which is at variance with the statement of PW-1, who deposed that he followed the deceased to his house keeping a distance of 10 cubits.
8. In cross, PW-1 admitted that he did not state to the darogababu that the accused persons assaulted PW-8 and him with wooden file. Thus, his statement in his examination-in-chief that he was assaulted by the accused persons with fist blows and wooden file is a first time statement in court. He also admitted in cross that there was no electric line or light on the road. In his cross- examination, he also revealed that on the date of occurrence at about 12/12-30 AM, he had gone to the house of PW-8 along with the deceased from his house and found PW-8 and A-1 indulging in shouting match at each other from their respective houses and he managed to stop them at that time. On the other hand, in his examination-in-chief, he deposed that on 21-8-2008 after about 10.30 PM, A-1, A-2, A-3 and Kartik Debnath entered the house of PW-8, picked a fight with him and all of them then assaulted him and PW-8 with fist blows and wooden file. Whether the appellants with Kartik Debnath went to the house of PW-8 at about 10-30 PM and remained there till 12/12.30 AM when the deceased was supposed to be killed is difficult to understand. On the other hand, PW-1, in his cross- examination, deposed that at about 12/12.30 AM of the date of occurrence, there was slanging match between P-8 and A-1 from their respective houses and he pacified them whereafter they entered their respective rooms. According to the versions of PW-8 and PW-4, who is wife, it was at about 10-30 PM, the shouting match between PW-8 and A-1 took place and thereafter both of them entered their houses.
9. Though PW-8 has three daughters, the eldest being 11 years (by the time the trial took place, she would have attained the age of 16/17 years) at the time of the incident, none of them were examined as a prosecution witness. According to PW-4, who is the wife of PW-8 and who was alleged to be injured in that incident, four and half years earlier one night at around 10-30 PM, A-1 came to their house and started quarrelling with her husband, PW-8, over a pig and that A-1 hit the Crl. A(J) No.17/2014 Page 6 of 12 leg of her husband with a bamboo whereafter both of them dispersed. It is her evidence that after about an hour or so, A-2, A-1 and 5/6 others entered their room after breaking open the door of the house and one of them, A-2 struck her son on his head with a wooden file thereby causing him severe bleeding injuries. She and PW-8 were also assaulted with bamboo and lathi. She further deposed that A-2, A-1 and others assaulted the deceased at their resident and blood oozed out of his mouth and nose due to the assault. Hearing their hue and cry, local people rushed to their house, but the accused managed to flee at that time. The deceased was immediately shifted to GB Hospital by an auto-rickshaw but succumbed to his injuries on the following day. PW-4 admitted that there was no electricity connection at their house at the time of the incident and that her house was in a pool of blood coming out from the bleeding injuries of the deceased and that the lathi and wooden file were clotted with blood and the same were seized by the darogababu. She admitted that there was shouting match between her husband and A-1 from their respective houses and thereafter both of them entered their respective houses. She admitted that she did not tell the darogababu that after about 1 hour of that incident, the appellants and other co- accused came to their house. She also admitted that the pig of the appellants often entered their house, which disturbed them in many ways, and snatched their food from their kitchen, which prompted them to ask the accused to control their pig. Two things are noteworthy from the statement of PW-4. Her statement that around 10.30 PM on that night, A-1 had come to their house, picked a fight with PW-8 over a pig issue and hit him with bamboo on his leg is not corroborated by the evidence of PW-1 or PW-8, who never uttered a single word about PW-8 being hit on his leg with a bamboo by A-1. PW-4 also did not mention anything about the presence of or of the assault made by the appellants to PW-8 and PW-1, who also did not say anything about the assault made to her by the accused persons. This witness revealed in her cross that there was no electric connection in her house. Her statement in her examination-in-chief that after about one hour of the incident, A-1, A-2, A-3 and 5/6 others entered their house is a first statement in Court as revealed by her in cross that she never mentioned this to the darogababu.
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10. That apart, PW-3, in his cross-examination, revealed that it was A-2 who hit him on the head of the deceased with wooden file as against the version of PW-1, PW-8, etc. who deposed that it was A-1, who hit him with wooden file on his head. In the absence of any light in the alleged scene of crime, it is no wonder that none of them were able to establish the identity of the culprit who assaulted the deceased with wooden file. Moreover, it is interesting to note that the IO of the case (PW-13) admitted in cross that he did not find any blood stain in the PO or that the wooden file seized by him did not contain any mark of blood stain or that he did not preserve the wooden file to find out any finger print of any accused. He also admitted that he did not show in the map the source of light or the place from where the witness witnessed the alleged occurrence or the place where the body of the deceased was lying or the accused were standing. He also admitted in cross that he did not give any written requisition to Medical Officer on 22-4-2008 or thereafter for recording the statement of the deceased; that he did not try to know the Medical Officer who treated the deceased at GB Hospital or examined him and that he did not find the necessity for collecting the bed head ticket of the deceased. He further revealed that PW-8 did not tell him that the accused persons pulled out his son from the hut; that PW-2 did not tell him that on reaching the PO, he found A-1, A-2, A-3 and Kartik Debnath leaving the PO or that the police officer seized the wooden file from the house of PW-8 in his presence; that PW-3 did not tell him that A-2 inflicted wooden blow on the head of the deceased; that PW-4 did not tell him that the accused persons assaulted her and her husband with bamboo made lathi. From the evidence of the IO, it is seen that whatever evidence adduced by the prosecution have been substantially demolished or, at any rate, diluted. Though the deceased was alive for the next twenty-four hours, no attempt was ever made to record his statement nor was any evidence shown that he was not in a position to give any statement due to unconsciousness or semi-consciousness. At this stage, it may be noted that a bed head ticket is one of the most important, contemporaneous medical records having the best evidentiary value in a court. Hence, it must be maintained and updated regularly and preserved carefully after the patient is discharged. Had the bed head ticket of the deceased been seized by the IO and exhibited in Court, its content could have Crl. A(J) No.17/2014 Page 8 of 12 helped the prosecution in proving beyond reasonable doubt that the death of the deceased was not accidental but homicidal.
11. In our opinion, PW-4 turns out to be a compulsive liar and her statement is full of exaggerations, embellishments and does not inspire confidence. So are the statements of PW-8, PW-3 and PW-1. Moreover, most of the witnesses examined on behalf of the prosecution are related witnesses. It is true that evidence of such witnesses cannot be discarded simply because they are close relatives of the deceased. But then, such statements should also satisfy the test of cogency, reliability and must have a ring of truth. In other words, it is the paramount duty of the Court to be more careful in scrutinizing the evidence of related witnesses. This is what is being done by us now. On re-appreciating the evidence on record, it is now crystal clear that the presence of PW-1, PW-3 and PW-4 at the scene of occurrence is doubtful at the time of the alleged incident. It is the evidence of PW-11, who is a neighbour, which is more intriguing as well as unsettling. According to her, she found one wooden file in the hand of Kartik Debnath. It may be noted that only one wooden file was seized by the police. In cross, she revealed that she used to see the bickering between PW-8 and the deceased day in and day out; that many persons also came to their house to stop their quarrel and that they also used to assault each other by use of lathi. Lastly, the incident allegedly had occurred between 10-30 and 12/12.30 AM of 21-4- 2008. Admittedly, there was no light at the place of occurrence or light in the vicinity including the nearby village path/road. No witness said anything about identifying any of the appellants even by voice when the assaults allegedly took place. In that event, it is not comprehensible to us as to how any of the appellants could be identified by prosecution witnesses in darkness, more so, when none of them care to mention the manner in which their identities are established by them in the dark. It is rather quite possible that the appellants were implicated simply because A-1 had history of quarrel with PW-8 over a pig issue. It is also quite possible that the death of the deceased was patricidal in nature as per the evidence of PW-11. Normally, it is for the prosecution to select who is to be examined as a witness, and it is not obligatory for it to randomly tender all and Crl. A(J) No.17/2014 Page 9 of 12 sundry to depose in the trial court for proving its case. However, the non- examination of any of the three daughters of PW-8 by the prosecution is somewhat intriguing. After all, the eldest of them might have attained the age of 16/17 years by the time the trial had commenced. In our opinion, the non- examination of any of them, in the light of the evidence of PW-11, could probabalize the theory that the death of the deceased could be patricidal and the appellants were framed by the family of the deceased.
12. There are thus many gaping holes in the case of the prosecution which cannot be rationally explained by them. These factors have created serious doubts in the case of the prosecution. Thus, in the absence of reliable direct evidence to prove the guilt of the appellants, the next question to be determined is whether there is any circumstantial evidence to bring home the charge against them. Man may lie, but circumstances never, is the old dictum. However, conviction on the basis of circumstantial evidence can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The Apex Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 laid down the following principles to convict an accused on the basis of circumstantial evidence:
"13. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and Crl. A(J) No.17/2014 Page 10 of 12 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. Assuming for the sake of argument that A-1 was last seen indulging in slanging match with PW-8 at about 10.30 PM, there are no other evidence, in the light of our earlier findings, to establish that A-1 returned to the house of PW-8 along with the co-accused after that incident. In the first place, in the absence of any light anywhere near the alleged crime scene and in the absence of any evidence coming from any of the prosecution witnesses that the accused were identified by their voice, it cannot be said with certainty that the appellants were the ones who were at the house of PW-8 at the time of the alleged incident. As already found by us, the evidence of PW-8 on the one hand and the evidence of PW-1, PW-3, PW-4 and PW-11 on the other is contradictory to each other; one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. In our judgment, there are no circumstances, taken cumulatively, which could form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else. In our criminal jurisprudence, an accused is presumed to be innocent until he is found guilty. While exaggerated devotion to the rule of benefit of doubt should be avoided, the burden of proof that the accused is guilty is always on the prosecution and that the prosecution has to establish its case beyond all reasonable doubt. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond reasonable doubts on the basis of evidence.
14. In this case, had the learned Additional Sessions Judge taken the trouble of reminding himself of the above principles of criminal jurisprudence, the direction of his approach and the course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have Crl. A(J) No.17/2014 Page 11 of 12 been avoided. In a criminal trial involving a murder case, which could result in sentencing the accused to life imprisonment or death, a trial court cannot afford to be complacent and must meticulously go through the evidence brought on record so that innocents are not convicted and sentenced to imprisonment for life or, conversely, the guilty are not acquitted either. We can hardly conceive of a more heinous crime than sending an innocent person to prison for life. In the view that we have taken, the impugned judgment of conviction and sentence cannot be sustained in law and is, therefore, liable to be interfered with.
15. For the afore-mentioned reasons, this appeal succeeds. The impugned judgment of conviction and sentence is, accordingly, set aside. The three appellants are set at liberty forthwith. Transmit the L.C. record.
JUDGE CHIEF JUSTICE
Sukhendu
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