Tripura High Court
Sri Bidyut Kanti Das vs The State Of Tripura on 20 October, 2020
Bench: S. Talapatra, S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)No.17 of 2018
Sri Bidyut Kanti Das,
son of Sri Rabindra Nath Das
of Baishnab Tilla, P.S. Amtali,
District : West Tripura
----Appellant(s)
Versus
The State of Tripura
---- Respondent(s)
For Appellant(s) : Mr. R.G. Chakraborty, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 10.06.2020
Date of delivery of
Judgment & Order : 20.10.2020
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
[S. Talapatra. J]
The appellant was charged under Sections 494, 495, 302, 203 and 201 of the IPC for contracting marriage during subsistence of a legal marriage for contracting the subsequent marriage by concealing the former marriages for causing murder of one Bithika Barman on 19.03.2015 at about 9 p.m. near Salbagan Tri-junction on Chanmari-Salbagan biy-pass road under NCC Police Station for giving false information respecting the offence knowing or having reason to Page 2 of 50 believe such information to be false and for causing disappearance of evidence and giving false information to screen the offender. After a regular trial, the appellant has been convicted under Section 302 and 203 of the IPC and he has been acquitted from the charges under Sections 494, 495 and 201 of the IPC by the judgment dated 09.02.2018 delivered in S.T.(T-1) 50 of 2015 .
2. Pursuant to the said judgment, the appellant has been sentenced by the order dated 13.02.2018 to suffer rigorous imprisonment for life and to pay fine of Rs.20,000/- with default stipulation for commission of offence punishable under Section 302 of the IPC and further, to suffer rigorous imprisonment for two years for commission of offence punishable under Section 203 of the IPC.
By means of this appeal, the said judgment and order of conviction and sentence have been challenged.
3. Genesis of the prosecution can be located in the oral complaint [Exbt.22] filed by the appellant himself on 19.03.2015 by revealing that on 19.03.2015, in the evening at around 6/45 p.m., he started his journey to reach the house of Bithika‟s younger sister travelling by Bithika‟s scooty from Amtali. While they had reached near Salbagan along the road running by the side of the office of the Rubber Board via Khayerpur, one Sujit Kumar Pal, an Assistant Professor of NIT, along with Dipankar Nath Bhowmik [contractor], Dilwar Hossain [resident of Village Jaypur at Agartala], another Dilwar Hossain [resident of Biterban], one Tanmoy Das [an engineer of the Page 3 of 50 Housing Board] and Gopal Sen [resident of Bodhjung area] had restrained them. Before they could realize anything, they caused blows upon Bithika by sharp weapons and caused blows on her belly for three/four times. His „wife‟ Bithika Barman succumbed on the spot. Those persons, according to the appellant, hatched a conspiracy to kill the appellant.
4. Based on the said oral complaint which was reduced into writing and was received on 19.03.2015, NCC P.S. Case No.2015 NCC 023 was registered under Sections 301/302/34 of the IPC and taken up for investigation. On completion of the investigation, the police filed the final report vide the chargesheet No.33 dated 10.08.2015 under Sections 341/302/201/494/495 of the IPC. Having taken cognizance, the police papers were committed to the court of the Sessions Judge, West Tripura, Agartala. For convenience of expeditious trial, the said case being S.T.(T-1)50 of 2015 was transferred to the court of the Additional Sessions Judge, Court No.5, West Tripura, Agartala. The Additional Sessions Judge, hereinafter would be referred to as the trial Judge framed the charge as noted above. The appellant was shown as the only offender in the police report by completely disregarding his version as reflected in the oral ejahar [Exbt.22]. The appellant pleaded innocence against the charge and claimed to be tried in accordance with law.
5. In order to substantiate the charge, the prosecution has adduced as many as 25 witnesses including the medical officers and Page 4 of 50 the forensic doctor who carried out the postmortem examination, the forensic expert and one blacksmith. As many as 25 documentary evidence [Exbts.1 to 25] including the report of the Tripura State Forensic Science Laboratory [SFSL][Exbt.25], inquest report [Exbt.1], injury report [Exbt.9], the postmortem examination report [Exbt.13] and the disclosure statement of the appellant [Exbt.19] have been introduced in the evidence.
6. After recording the prosecution evidence, the appellant was examined under Section 313(1)(b) of the IPC when he reiterated his version of the occurrence and asserted to be innocent. In respect of the disclosure statement, the appellant stated that the disclosure statement had been extracted from him by the police under intimidation in front of the Deputy Magistrate and Collector (DCM). Even, in respect of the written ejahar, he had complained that the same was not written entirely according to his dictation. Finally, he has stated that the place of occurrence was dark. He was the pillon rider in the scooty which was being driven by Bithika [his wife]. All on a sudden, four persons, not disclosing their identity had attacked them from their behind and both of them fell down on the ground. He had lost his sense. For recovery from his injuries, he had been operated twice, but he denied to lead any evidence in his defence.
7. Having appreciated the evidence as recorded in the trial and the arguments as placed from the prosecution and the defence, the trial Judge returned the finding of conviction having observed that Page 5 of 50 the prosecution had succeeded in establishing the charge beyond reasonable doubt that the appellant caused the murder of Bithika Barman with the knife which he had purchased from the shop of PW-
6. That apart, the trial Judge has observed as follows :
"During the discussion of charge under section 302 of IPC it has been established that maker of the FIR i.e. the present accused Bidyut Kanti Das himself committed the murder of Bithika Barman and to save himself from the charge of murder caused certain superficial injury on his belly to show that by the same incident he also got injured which is found to be false. So without any hesitation it can be held that he gave false information to police by this oral complaint (reduced into writing) implicating some other persons who were in fact not involved with the offence. Thus, all the points as above can be said to have been proved to satisfy the charge under section 203 of the IPC. Consequently, the accused is found guilty under section 203 of IPC."
8. It may be noted here before the submissions of the counsel appearing for the parties is recorded in the manner required for purpose of determining the appeal that the appellant did not raise any challenge against the police report by completely relieving the persons whom he named as the offender from the criminal liability. That apart, the order of acquittal of the appellant from the charge as framed under Sections 494, 495 and 201 of the IPC, has not been challenged by the state or by the victim within the meaning of proviso to Section 372 of the Cr.P.C. Having regard to these two aspects, this court would revisit the evidence only to examine whether the judgment of conviction is sustainable in the touchstone of the evidence as recorded in the trial. It may further be noted that according to the prosecution‟s case, there is no eye witness of the Page 6 of 50 occurrence except the appellant. According to the prosecution, the appellant had introduced a false story to the police to shield his crime. But circumstances as proved have form a chain to indicate unerringly to the guilt of the appellant.
9. Against this finding, Mr. R.G. Chakraborty, learned counsel appearing for the appellant has quite strenuously submitted that the investigation was grossly perfunctory and during the investigation some evidence has been fabricated. Mr. Chakraborty, learned counsel has further submitted that in a case based on circumstantial evidence, the proof of motive plays a very vital role. In absence of such proof the chain of circumstances remains incomplete and unreliable. In the present case, the prosecution has failed to prove the motive of the appellant to kill Bithika Barman [the victim]. The investigating officer, after the preliminary phase of the investigation, had directed the investigation in the offender-centric mode. Such investigation is found to be counter-productive and grossly unfair. Mr. Chakraborty, learned counsel has submitted that it has been contended by the appellant definitely [see his statement recorded under Section 313 of the Cr.P.C.] that the disclosure statement has been extracted under physical torture meaning intimidation. Not only that, the witness who had attested the said disclosure statement, was not examined in the trial.
10. Mr. Chakraborty, learned counsel has further submitted that no bed head ticket was produced before the court creating an Page 7 of 50 opportunity to the trial Judge to get himself apprised of the nature of injuries that the appellant did suffer and the treatment that was followed in the hospital. Mr. Chakraborty, learned counsel has further submitted that the Call Details Report (CDR) in respect of the conversation with the named accused has not been produced before the trial court. The claim of the appellant is that at the time of recovery of his body from the place of occurrence, he was senseless and that aspect of the matter was not properly investigated. Else the prosecution would have come in terms with the actual facts that the injuries were not self-inflicted. Since none was present at the place of occurrence as per the version of the prosecution, the appellant cannot be saddled with the criminal liability of murdering Bithika Barman or for planting false story to the police. Mr. Chakraborty, learned counsel has quite succinctly submitted that without any legal evidence, the appellant has been convicted. In support of his contentions, Mr. Chakraborty, learned counsel has placed his reliance on few reports.
11. In Badam Singh versus State of Madhya Pradesh reported in AIR 2004 SC 26, the apex court has dwelled upon the importance of proof of motive in the following words:
"There is evidence on record led by the prosecution itself that the appellant and the deceased were with the eye witnesses from the evening of the earlier day, and that the appellant had slept with the eye witnesses at the house of Amar Singh. However, the prosecution has projected a case through the eye witnesses that they met accidentally while they were on their way from Kachnaria to Achhroni. The eye witness have tried to conceal the true facts from the Court that the appellant as well as the deceased had Page 8 of 50 met them in village Kachnaria in the earlier evening and they were with them throughout the night, and again accompanied them next morning. Moreover, from the evidence on record it does not appear that any altercation took place between the appellant and the deceased while on their way to village Achhroni. Without any reason whatsoever, the appellant pointed his gun at the deceased and fired. If really he entertained a motive to kill the deceased, though we have found none, and he had planned to kill him, it appears rather incredible that he should do so in the presence of three eye witnesses who were employees of the forest department."
12. Mr. Chakraborty, learned counsel has also placed reliance on a judgment of this court Chitta Malakar versus State of Tripura reported in (2014) 1 TLR 189 where this court had occasion to observe inter alia as under :
".......the law in this regard by now is well crystallized. Motive is not an integral part of the crime or an ingredient of it just like mens rea or actus reus. Even without any motive at all crimes could be committed. Absence of motive will not make an act which is otherwise an offence, not an offence. It is only an aid in the assessment of criminality. That is relevant in the scale mainly for those cases hinge on the circumstantial evidence. It is only a ratiocinative aid in the assessment of evidence to fix up criminality. In a given case it may help the court to tilt the balance in assessing evidence. For want of motive a criminal who is otherwise liable to be brought to justice cannot escape. In another case it may act as a guide to negative the otherwise available presumption of innocence while considering the evidence which the court may have an inclination to accept with a little more of assurance. When there is the direct evidence, motive loses much of its importance and significance. When the direct legal testimony is so clear, cogent and convincing as to satisfy the judicial conscience of the court in fixing up criminality, motive is absolutely irrelevant in the sense that even in the absence of any proof of motive itself conviction can be returned. Therefore the argument based on motive has no force at all in this case."
[Emphasis added]
13. A reference has also been made for purpose of showing that motive in a case based on circumstantial evidence may be very Page 9 of 50 relevant. Rohtash Kumar versus State of Harayana reported in (2013) 14 SCC 434 where the apex court had succinctly laid down the law as under :
"The evidence regarding the existence of a motive which operates in the mind of the accused is very often very limited, and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. In a case of circumstantial evidence, motive may be a very relevant factor. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggests adequately, the existence of the necessary motive required to commit a crime, it may be conceived that the accused has in fact, committed the same. (Vide:
Subedar Tewari v. State of U.P. and Ors.: AIR 1989 SC 733; Suresh Chandra Bahri v. State of Bihar: AIR 1994 SC 2420 and Dr. Sunil Clifford Daniel v. State of Punjab: (2012) 11 SCC 205)."
[Emphasis added]
14. In Chitta Malakar(supra) this court however had clearly noted that it is not motive alone in a case based on circumstantial evidence that would determined the fate of the trial, but the trial Judge would verify whether the prosecution had proved every episode of the circumstances. In Sharad Birdhichand Sarda versus State of Maharashtra reported in AIR 1984 SC 1622 it has been stated that "a false defence may be called into aid to lend assurance where the various links in the chain of circumstantial evidence are in themselves complete."
15. In Sharad Birdhichand Sarda (supra), the apex court has culled out certain requisite to be proved by the prosecution in a Page 10 of 50 criminal case which rests completely on circumstantial evidence. Those requisites are as follows :
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established:
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty: (3) The circumstances should be of a conclusive nature and tendency :
(4) They should exclude every possible hypothesis except the one to be proved : and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
16. Reference has also been made to Sujit Biswas versus State of Assam reported in 2013 Crl.L.J. 3140 to put emphasis on the following observation made by the apex court in the said report :
"17. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself."
17. For the purpose how to lead and appreciate the circumstantial evidence, reference has been made to Harilal Hrishi Das versus State of Tripura reported in (2013) 2 TLR 1000 where this court had observed as follows :
"17. From the cumulus of unexplained ends as well as suspicions circumstances, it appears unsafe to rely on the evidence of PW-7 for returning a finding of the conviction against the appellant as his conduct does not instill any confidence in the court and the attempt of the prosecution to establish the guilt of the appellant in commission of the offences by the ornaments has failed as the chain was broken for non-examination of the rickshaw-puller namely, Page 11 of 50 Pradip as this court did not find evidence of PW-13 trustworthy for embellishment to the extent that appellant has made an extra-judicial confession to him, but he did not disclose it to anyone. The law is now fairly settled. In Padala Veera Reddy v. State of Andhra Pradesh and Ors. : 1989 Supp(2) SCC 706 whereby the Apex Court held the following test unless satisfied no person can be convicted on the basis of circumstantial evidence :
"(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 (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."
18. Mr. Chakraborty, learned counsel in support of his objection in respect of relying on the discovery of the weapon of offence [the knife] following the disclosure made by the appellant in presence of the Executive Magistrate [the Deputy Collector and Magistrate], has relied a decision of the apex court in Harivadan Babubhai Patel versus State of Gujarat reported in (2013) 7 SCC 45 where the apex court in the context of that case had observed thus:
"16. The next limb of attack relates to the confessions made by the Accused persons and the issue of leading to discovery of articles. It is submitted that the confession part is absolutely inadmissible and that apart, when the panch witnesses had not supported the panchnama, the recovery or discovery of the seized articles cannot be utilized against the Appellant. There can be no shadow of doubt that the confession part is Page 12 of 50 inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile but the facts remains that the place from where the dead body of the deceased and other items were recovered was within the special knowledge of the appellant.
17. In this context, we may usefully refer to A.N. Venkatesh and Anr. v. State of Karnataka: (2005) 7 SCC 714 wherein it has been ruled that :
"9. By virtue of Section 8 of the Evidence Act, the conduct of the Accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the Accused pointed out to the police officer the place where the dead body of the kidnapped person was found would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the Accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 [of the Evidence Act] or not....."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admin.): AIR 1979 SC 400. It is worth noting that in the said case, there was material on record that the Accused had taken the Investigating Officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.
18. In State of Maharashtra v. Damu.: (2000) 6 SCC 269, it has been held as follows:
"35......It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor: AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the Accused as to it, but the information given must relate distinctly to that effect.
19. The same principle has been laid down in State of Maharashtra v. Suresh: (2000) 1 SCC 471, State of Punjab v. Gurnam Kaur and Ors.: (2009) 11 SCC 225, Aftab Ahmad Anasari v. State of Uttaranchal: (2010) 2 SCC 583, Bhagwan Dass v. State (NCT) of Delhi:
AIR 2011 SC 1863, Manu Sharma v. State: AIR 2010 SC 2352 and Rumi Bora Dutta v. State of Assam :
(2013) 7 SCC 417 Page 13 of 50
20. In the case at hand, the factum of information related to the discovery of the dead body and other articles and the said information was within the special knowledge of the present Appellant. Hence, the doctrine of confirmation by subsequent events is attracted and, therefore, we have no hesitation in holding that recovery or discovery in the case at hand is a relevant fact or material which can be relied upon and has been correctly relied upon."
19. Harivadan Babubhai Patel(supra) has also been relied by Mr. S. Debnath, learned Addl. P.P. appearing for the state contending that the law exposited by the said report may be applied as a tool to verify whether the prosecution has succeeded to prove the discovery of the weapon of offence within the exception made under Section 27 of the Indian Evidence Act. According to Mr. Debnath, learned Addl. P.P., the testimony of PW-22 in particular, has proved to the hilt that the discovery of the weapon of assault was made by the appellant. The investigating officer has made the memorandum of pointing out by the appellant and such memorandum has been vouched by the independent witnesses.
20. That apart, Mr. Debnath, learned Addl. P.P. has further submitted that the said weapon of offence was purchased by the appellant and that piece of evidence has been proved by PW-6, a blacksmith. He has categorically stated that the appellant had personated as the meat seller and purchase one knife and one kitchen dao from him. PW-6 had identified the appellant as the person who had purchased the knife from him [Exbt. M.O.1]. Just before the occurrence at about 7/30 p.m. PW-5 had seen both the appellant and Page 14 of 50 the victim together in a scooty and they appeared in his shop at Nandannagar School Chowmohuni and purchased cold drinks. They were in his shop for about half an hour. After that the female drove the scooty. PW-5 also identified the appellant in the trial.
21. Mr. Debnath, learned Addl. P.P. has further submitted that the appellant had taken a loan from Bithika Barman from the sale proceeds of the land of PW-9. PW-9 had badly required money for admission of his son in the college and PW-9 has stated in the trial as follows :
"Sometimes in the month of April, 2015 when I was in need of further money to deposit in the college of my son my sister Bithika told that he gave loan to accused Bidyut Kanti Das out of the money kept with her. My presumption is that my sister was killed by accused Bidyut Kanti Das when she demanded for the refund of money from accused Bidyut Kanti Das."
22. Mr. Debnath, learned Addl. P.P. has submitted that injuries sustained by the appellant were self-inflicted. A team of three doctors headed by Dr. Ranjit Das [PW-20] has clearly observed in their report that in their opinion-the injury No.01 to 09 in the injury report [Exbt.9] are fabricated wounds [self-inflicted or inflicted by other persons with his consent] and injury No.10 is caused by blunt force. The details of the injuries are mentioned in the bed head ticket of Bidyut Kanti Das [the appellant].
23. Mr. Debnath, learned Addl. P.P. has pointed out that the shirt which was in the wearing of the appellant and was seized by the seizure list dated 20.03.2015 [Exbt.12] was not cut even slightly Page 15 of 50 though the injuries of the appellant were all above the abdomen. However, there was bloodstain on that shirt. Mr. Debnath, learned Addl. P.P. has further submitted that the bloodstain in the shirt had no relation with the blood of the appellant. For this purpose, he has made reference to SFSL report [Exbt.25]. In the serological report, it has been observed that bloodstain was found in Exbt.D [the said shirt] and the said blood was determined to belong to Group-B which is the blood group of the victim. Hence, the blood on the shirt was not matching with his sample blood group [Exbt.F]. The blood group of the appellant was determined to belong to Group-O [Exbt.F].
24. Mr. Debnath, learned Addl. P.P. therefore contended that on any part of his shirt, his [the appellant‟s] blood group was not found. Absence of any cut or tear or his safari shirt only shows that before inflicting injury on his person the shirt was taken off and later on those injuries were inflicted. It is really surprising that if in the scooty the appellant was the pillon rider as claimed by him, how he was spared from getting injury at his back side and how the injuries can be inflicted on the back of the victim unless the appellant is the assailant. From the circumstantial evidence, so well established, it clearly transpires that it is the appellant but none who had murdered Bithika Barman. Even the motive has been indicated by PW-9 and there is no reason to disbelieve her.
25. Mr. Debnath, learned Addl. P.P. has further submitted that the lodging of the ejahar to the police by presenting a false story Page 16 of 50 is another important circumstance in the chain. The appellant had deliberately made the said oral ejahar knowing that the same was brazenly false. As such, the finding of conviction as returned by the trial Judge under Sections 302 and 203 of the IPC cannot be faulted with.
26. For purpose of appreciating the submission made by the learned counsel for the parties, it appears apposite to us to make a meaningful survey of the evidence as recorded in the trial. As noted earlier, even the survey of evidence would be restricted to the fact related to the offence for commission of which the appellant has been convicted.
27. PW-1, Smt. Anima Barman (Sarkar) is the sister of the deceased, Bithika Barman. She has testified in the trial that the deceased was a member of Zila Parisad under Kalyanpur block. On 19.03.2015 she was murdered. On 16.03.2015 she had visited her house and stayed there till the day of her death. She came to their house riding her own scooty. On 19.03.2015 at about 4/45 p.m., her sister told her that Bidyut [Bidyut Kanti Das, the appellant herein] called her in connection with an LIC policy of big amount. She went out by her scooty. At about 8/8.30 p.m. she had received a phone call from an unknown person, but the call was made from the mobile of her deceased sister. The caller asked her about the relationship with the owner of the mobile. When PW-1 disclosed that she was her sister then the caller informed her that her sister was lying on the road with Page 17 of 50 bleeding injury at Chanmari Lichubagan by-pass road. The caller requested her to attend her sister immediately. PW-1 being accompanied by her neighbour namely Sujit Debnath and Ajitesh Sutradhar went to that place by taking an auto rickshaw when her companions reached there by their motor bike. Reaching there, PW-1 found her sister lying with bleeding injury on the road. Her scooty was also lying on the road. She noticed one knife having bloodstain was lying on the road by the side of her sister. Another person was lying there on the road. The police arranged light at that place of occurrence and the place was therefore visible. She took her injured sister to the GBP Hospital with help of the police personal. The other person was lying injured was also transported to the GBP Hospital. Her sister was declared dead immediately after taking her to the GBP Hospital. In the hospital PW-1 came to know the name of the other person who introduced himself to the police as well as to the media persons as Bidyut Kanti Das. He told the police that her sister was his wife, which was not known to PW-1 and she became astonished. He told the police that she was coming to the house of PW-1 through Khayerpur Banikya Chowmohuni and when they reached at Chanmari- Lichubagan road some miscreants attacked them. Those miscreants cause injury to her sister and also to that person. Thereafter PW-1 has made a significant statement which for purpose of reference is reproduced hereunder :
Page 18 of 50
"I saw some superficial injury on the belly of accused Bidyut Kanti Das. But his dress was fresh and there was no mark of dirt and injury. I noticed multiple bleeding injury on the body of my sister. Though I saw the accused first time on the date of occurrence, I heard his name from my deceased sister who told us that he took money from him on several occasion. But accused did not give refund the said money when my deceased sister made demand to refund the money for the purpose of helping of my another elder sister."
PW-1 identified the appellant in the dock. On 20.03.2015, the following day of the occurrence the police prepared the inquest report of the dead body of her deceased sister in the hospital morgue. She stood witness to the procedure and signed on the inquest report [Exbt.1]. On 25.03.2015 she produced the registration certificate of the scooty bearing No.TR06351. The seizure list by which the said registration certificate was seized [Exbt.2] has been admitted in the evidence by her. The wearing apparels of the deceased were also seized by the police. In the trial, those materials namely saree, blouse, petty coat and bra were identified by her as exhibit M.O.1,M.O.1(a), M.O.1(b) and M.O.1(c) respectively. The scooty was also identified as M.O.2. The knife that PW-1 found by the side of the body of her sister at the place of occurrence was identified by her and marked as Exbt.M.O.3. On a different date i.e. 28.09.2016 the cross- examination was carried out of PW-1. In the cross-examination nothing could be dented but the statement regarding scooty and the bloodstained knife was not found by her in her previous statement, recorded under Section 161 of the Cr.P.C. Even her statement that she found the male person lying on the road was not available in her Page 19 of 50 previous statement. Similarly, the transportation of the said male person to the GBP Hospital was not available. PW-1 has denied her knowledge about a criminal case, which was suggested, being East Agartala P.S. Case No.37/11 under Section 489 of the IPC or that her sister was booked in that case. she denied the suggestions that the appellant did not called her in respect of the LIC policy. She has admitted that the place of occurrence during the night remains dark. She denied all other suggestions as those stood contrary to her statement in the examination in chief.
28. PW-2, Swapan Pal, a rifleman of Tripura State Rifles, was posted on 19.03.2015 at the dog-squad of the SP(CID) at A.D. Nagar Agartala. On that day he was returning to his home at Bamutia Kalibazar from GBP Hospital after visiting the police constable, Sudhranjan Debbarma who was admitted in the hospital on that day for his treatment. He testified in the trial that he was returning to his home through the Chanmari-Lichubagan by-pass riding his motor bike. When he had reached near the army camp, he saw some persons had gathered on the road. He noticed one female and one male person were lying on the road. On seeing them, he stopped his motor bike and enquired as to what happened there. He was told that probably there was an accident. He saw the female person sustained bleeding injury but he did not see any bleeding injury on the male person lying on the road giving his hand under his head. A mobile phone was also found at the place of occurrence, nearby the body of Page 20 of 50 the female injured person. On scrutiny of the contact list of the mobile phone, he found there was a name entered as "Anima, sister." He called to the said number from the mobile found at the place of occurrence. One female person received the call and told him that the mobile phone from which PW-2 made the call belonged to her sister. Then, PW-2 told her to come immediately to the place of occurrence as her sister had sustained injury and lying on the road. After a short while, a police vehicle came there and the sister of the injured female also reached there. When the body of the injured was taken to the vehicle he saw one knife was lying there. Thereafter, he made the statement that he also noticed some superficial injuries on the stomach of the male person [there appears a typographical mistake. In lieu of the male person it had been typed as the female person.] One scooty was also lying there. The injured woman was having helmet on her head and the injured woman was taken to the hospital in a auto rickshaw and the male person was also shifted to the hospital. The knife that was recovered and seized from the place of occurrence has been admitted in the evidence at the instance of PW-2 as Exbt.M.O.3. PW-2 in the cross-examination has denied the suggestion that he did not see the deceased and one male person lying on the road nearby the Army Camp on the Chanmari-Lichubagan by-pass. He denied the other suggestions made to him in the cross- examination.
Page 21 of 50
29. PW-3, Ajitesh Debnath is a person who accompanied PW- 1 and has testified in the trial that at the request of PW-1 he along with Sujit Debnath came to the place of occurrence and found gathering of some people. They saw one female person lying on the road and by her side one male person was lying "keeping his hand under his head." The female person was the elder sister of Anima Barman [PW-1] and her name was Bithika Barman. Almost on the same time, PW-1 reached that place in a auto. One scooty was lying on the road and one knife with bloodstain was found lying by the side of the injured person. Thereafter, PW-3 has made the following statement :
"The injured was taken to the hospital by the police vehicle. I also went to the hospital in the said police vehicle. In the hospital the said male person disclosed his name but I cannot remember now. He told to the police in the hospital that injured Bithika Barman was his wife and they were going to the house of Anima Barman and on the way some miscreants attacked them and caused injury with a knife. In the hospital I saw some superficial injury on the stomach of a male person. Bithika Barman sustained severe injury and the doctor after examination in the hospital declared her dead. I can identify the knife which was found at place of occurrence. The said knife was of Iron made and its handle was also of iron-made."
No cross-examination was carried out as the defence counsel was not available to cross examine the witness despite giving the opportunities.
30. PW-4, Sri Sachindra Debbarma [a constable of police] was posted on 19.03.2015 at the N.C.C. P.S., Agartala. He has testified in the trial that having received information of „an accident‟ Page 22 of 50 over telephone, Pranjit Malakar, an S.I. of police, and he went to that place. They found at that place, one female was lying on the road with bleeding injuries and another male person was also lying nearby the injured female. By the police vehicle, they shifted the male injured person to the hospital but they did not shift the female person at the first instance and she was left there for a while. He heard later on that the female person was shifted to the hospital by her sister. The male person was alive and he had no sense.
31. PW-5, Sri Sunil Saha a shop keeper, was having his shop at Nandannagar School Chowmohuni. He has testified in the trial that at about 7- 7.30 p.m. one day, about one and half years ago, one male person came in his shop with one female and purchased cold drinks and water. They were at his shop for about half an hour. They came to his shop by riding a scooty. When they left his shop, the female person was driving the scooty. After about twelve days, the police came and he shared that information. He identified the appellant as the male person who purchased the cold drinks from his shop. In the cross-examination, nothing material could be extracted from him but he has admitted that the male person was last seen by him when the police brought him in his shop. He denied to have made the statement being tutored.
32. PW-6, Sri Swapan Karmakar is a black smith from whom the appellant purchased one bati dao [kitchen cutter] and knife introducing him as a meat-seller. About one month after that sale, the Page 23 of 50 police came with the purchaser in his shop. The person who was brought by the police had also admitted that he had purchased the knife and bati dao from his shop. PW-6 has identified the appellant in the dock as the same male person. In the cross-examination, he has identified the knife as Exhibit-M.O.3. In the cross-examination, he had however, stated that he had manufactured similar knives for sale.
33. PW-7, Sri Gautam Dhanuk, a dry sweeper, who was working in the N.C.C. P.S. was declared hostile as he did not support his previous statement in the trial. But during the cross-examination, he has made several admissions. PW-7 has admitted the seizure list [Exbt.3] by which the scooty, nokia mobile set and the iron made knife with blood stain was seized by the police. He had also admitted the seizure list [Exbt.4] by which blood in gauze, one pair of lady shoes and torn pieces of clothes were seized. Those articles, according to PW-7, was seized from the road nearby Chanmari Army Camp. He had identified the knife [Exbt.M.O.2]. No further material could be extracted from him during his cross-examination.
34. PW-8, Smt. Sita Chanda (Das) has claimed in the trial to be the second wife of the appellant. She has narrated how her marriage with the appellant was solemnized and how for a marital discord she had approached Tripura Commission for Women for claiming maintenance etc. She has also narrated that the appellant had started living in her house in the year 2014 with his first wife, Smt. Tandra Sarkar and his son. Later on, she was forced to leave Page 24 of 50 that house. She did not state anything about the occurrence and involvement of the appellant
35. PW-9, Smt. Pratima Barman is the elder sister of the deceased. She has stated that on 16.03.2015 the deceased came to stay in the house of their aunt to attend her sradh ceremony by riding her scooty. On 19.03.2015, she was killed at Chanmari area. She got the information from her another younger sister namely Anima Barman. She has also stated that she did not know the appellant. In the year 2014, her son was admitted in Satyavama College at Chennai and for bearing the educational expenses of her son, they sold out a plot of land for an amount of Rs.5,00,000/-. From that amount, they could save Rs.3,00,000/-. The said amount was kept with her sister, Bithika Barman. Sometimes in the month of 2015, when she was in further need of money to deposit in the college, Bithika Barman [deceased] was asked to give back that money. At that time, she told her that she gave loan to the appellant out of the money kept with her. Her presumption, as eloquently expressed is that her sister had been killed by the appellant as she demanded refund the money from the appellant who borrowed a big amount from the said money. She denied the suggestions made to her during the cross-examination but claimed that the deceased was unmarried.
36. PW-10, Sri Kalam Uddin Borobhaiya has stated that the appellant was known to him as she used to supervise construction of Shahi Baba Temple at Amtali near that by-pass road. He was working Page 25 of 50 there as the mason. On a certain day at about 4.30-5 p.m. When they were working in that site, a lady came with a scooty. After having a discussion for a short while, the lady left the said place with the appellant. At that time, the appellant was driving that scooty and the lady was in the pillion. But to a question to the court he had stated that he did not see himself the lady was riding to the place of occurrence. The police did not examine him, but the other suggestions made to was denied by him.
37. PW-11, Sri Pranab Muhuri is a constable of police. On the day of occurrence, Rita Debbarma, an S.I. of police from East Agartala Women P.S. seized four plastic containers containing different body- materials of the deceased namely Bithika Barman. Those body- materials were collected by the doctor during the post-mortem examination of the dead body. He identified the seizure list [Exbt.6] where he had signed as the witness of seizure. On 21.03.2015, one document containing the opinion of the medical officer was seized in his presence by the seizure list [Exbt.7]. On 12.05.2015, the bed ticket [32 sheets] in respect of the treatment of the appellant was seized in the GBP hospital by preparing the seizure list [Exbt.8] where he put his signature as the witness. He has denied the suggestion that no document was seized in his presence.
38. PW-12, Dr. Shyam Sundar Saha attended the injured appellant on 19.03.2015. The appellant was admitted in the ward No.M.S.I in the bed no.25 with the history of alleged physical assaults Page 26 of 50 [with multiple stab injury] on abdomen on 19.03.2015 at around 8.30 p.m. The patient was conscious but drowsy. Thereafter, he has stated in the trial as follows :
"On examination I have seen multiple insisted wound over abdomen. Plain X-ray of abdomen, chest and urgent USG of whole abdomen were done. We also took expert opinion from forensic department from AGMC and GBP hospital regarding the nature of injuries on 20.03.2015. Blood samples of the patient was collected on 28.03.2015 and handed over to the SI of police for further forensic examination. On local examination of the patient I found :
1. Multiple incised would (total 7 in number) over lower part of abdominal wall, just below and at the level of umbilicus and placed from left to right in a horizontal line (almost). Varying from 0.5 centimeter to 2.5 centimeter in length, 0.1 cm to 0.5 cm in breath and 0.1 cm to skin deep in depth. The injuries was fresh in nature caused by sharp cutting weapon and were simple. According to me all the multiple fresh incised wounds in abdominal wall probably fabricated wounds.
2. Multiple abrasion injuries (3 in number) present over the front of right knee joint ranging from 1.5 cm X 1 cm to 2.5 cm X 1.5 cm. The injuries were fresh abrasion (simple) and caused by blunt. In my opinion the injuries were simple, fresh abrasion injuries possibly caused by blunt force.
3. USG of whole abdomen showed normal study.
4. Plain X-ray of abdomen and chest showed no abnormality.
The patient was discharged on 28.03.2015 after removal of the stitches."
PW-12 has further clarified that injuries on the knee as reflected in the report might be sustained during scuffling or scrolling [sic.crawling] on the road. The said injury report was prepared in connection with NCC P.S. case No.23/2015 which had been admitted by PW-12 as Exhibit-9. He has further stated in the cross-examination that the bed head ticket was the basis for preparing the said injury report. PW-12 has further stated that the doctors in the ward had requested the forensic department in the hospital to examine the said Page 27 of 50 patient for giving their expert opinion regarding the injury sustained by the patient. The doctors working in the said ward had given the requisition to the forensic department "as we suspected the injuries of the patient was self-inflicted" but he did not record such opinion in the bed head ticket. He has testified in the trial that out of total ten injuries in the body of the patient, seven injuries were found on the abdomen and the remaining three injuries on the right knee of the patient. To a query by the court he has stated that he did not get any report from the forensic department but he has denied the suggestion that he prepared the injury report mechanically and following the instruction of the police.
39. PW-13, Dr. Rupnarayan Roy is an associate professor of NIT, Agartala. He has testified that he did know Dr. Sujit Kumar Pal, a colleague of the same institution. Even he did know much about the appellant who used to work as the Junior Engineer at NIT. He continued to serve the NIT in that capacity till June, 2014. The appellant was appointed in the NIT on contract basis for one year. PW- 13 identified the appellant in the trial. PW-13 has also revealed that he came to know from the newspapers that the appellant lodged a complaint against Dr. Sujit Kumar Pal and the police on the basis of the said complaint made enquiry. The police had also talked to him. When the service of the appellant was not extended by the Department of Planning and Development where Dr. Sujit Kumar Pal was, at the relevant point, Dean of that department, the appellant Page 28 of 50 made complaints against Dr. Sujit Kumar Pal to different authorities including the Director, NIT. No cross-examination was carried out.
40. PW-14, Sri Sujit Debnath who after having the information that Bithika Barman met an accident at Chanmari Salbagan Road from Anima Barman, a neighbor rushed to the place of occurrence with his close friend Ajitesh Debnath by riding his bike, found at the place of occurrence the body of Bithika Barman lying on the road and she was bleeding. One male person was lying on the ground keeping his hand under the head. There was a small gathering. When he reached to the place of occurrence, the police had already been there. The police asked him whether the lady lying on the ground was known to her. He replied in the positive. The male person who was lying on the ground was wearing safari suit. The trouser was torn just below the knee. He found one knife lying nearby the scooty. Anima Barman came in the spot by an auto rick-shaw. The police sent the male person to the hospital by their vehicle. Bithika Barman was sent to the hospital by an auto rickshaw which was brought by Anima Barman to reach the place of occurrence. PW-14 went to the GBP hospital by his bike. The doctor attending Bithika Barman had declared her dead. Before the journalist and the police, the male person introduced himself as Bidyut Kanti Das and he has narrated to the police that while he was proceeding towards Natunnagar from Banikya Chowmohuni „certain people‟ attacked him and he was assaulted. The appellant has been identified by PW-14 in Page 29 of 50 the trial. In the cross-examination he has stated that there was no street light nearby the place of occurrence. The appellant was not in acquaintance and he saw him for the first time in the place of occurrence. He denied the suggestions made to him in the course of the cross-examination.
41. PW-15, Sri Sadhan Chandra Gope, being a driver of the police vehicle posted at NCC P.S. took Pranjit Malakar, an S.I. of police, with the contingent of police to the place of occurrence where he found two persons including one female was lying on the ground besides a scooty. He had noticed one knife at the place of occurrence lying beside the persons lying on the ground. In the hospital, the male person disclosed his identity and told his name as Bidyut Kanti Das. He had identified the knife [Exbt.M.O.1]. He identified the appellant in the trial. He has stated in the cross-examination that the knife that was lying in the place of occurrence was ordinarily available in the market for purchase.
42. PW-16, Smt. Rita Debbarma, a Women Sub-inspector of police from East Womens Police Station, had prepared the inquest report [Exbt.1] in presence of the witnesses. He has also stated that the victim [the deceased] suffered cut injuries by sharp weapon and when she was brought to the GBP hospital she was declared dead. There was no cross-examination.
43. PW-17, Smt. Santa Acharjee was the witness of seizure of two mobile phones and two framed photographs from the rented Page 30 of 50 residence of the appellant on 20.03.2015. She has identified the seizure list [Exbt.10 and Exbt.10/1] and also the materials those were seized as Exbt.M.O.2(a) and Exbt.M.O.2(b) and the framed photographs were marked as Exbt.3(a) and Exbt.3(b) respectively. During the said time, the police officers seized one marriage certificate by the seizure list [Exbt.11]. In the cross-examination by the defence she had revealed that she had no knowledge wherefrom the police recovered the mobile phones. After the seizure, the room was kept under lock and key. Even she had expressed her lack of knowledge as to how the police collected the key of the room.
44. PW-18, Smt. Apu Rani Deb being the land lady of the rented residence has testified in the trial that the name of the appellant wife was Bithika Barman. She saw her visiting that rented residence twice and lastly on 19.03.2015 when Bithika Barman came to that resident last time she was riding her own scooty and Bidyut Kanti Das [the appellant] was the pillon rider. Witness identified the photographs of the accused [the appellant] and Bithika Barman by seeing the exhibits marked as M.O.3(a) and M.O.3(b) respectively. In the cross-examination, she did not reveal much either to affect the prosecution case or to provide materials for building up the defence case, but she had failed to give the registration number of the scooty.
45. PW-19, Sri Bhulan Rudrapaul, a sweeper of the GBP hospital, had testified in the trial and stated that he assisted the appellant to put off the dress and the police seized those dress [the Page 31 of 50 wearing apparels of the appellant] by preparing the seizure list [Exbt.12] to which he stood witness. He denied the suggestion in the cross-examination that he did not assist the appellant to put off his wearing apparels.
46. PW-20, Dr. Ranjit Kr. Das who was an associate professor in the AGMC and GBP hospital had led the postmortem examination as the member of the board which was formed to conduct the postmortem examination over the dead body of Bithika Barman, who was brought dead to the hospital on 19.03.2015 at about 9.29 p.m. with multiple wounds on her body. The dead body was identified by one police constable namely C/1586 B Reang and the investigating officer Gita Debbarma, a women Sub-Inspector from East Agartala Women P.S. According to him, death took place about 12 hrs. to 20 hrs. before the examination had commenced. The autopsy had started on 02.05 p.m. on 20.03.2015 and it was completed by 0330 p.m. on 20.03.2015. In the opinion of the board which carried out the postmortem examination, the cause of death was shock and hemorrhage resulting from multiple stab wounds which was caused by sharp cutting weapon and were sufficient to cause death in the ordinary course of nature. All the injuries were anti-mortem and fresh during the autopsy. He has also stated in the trial that viscera was preserved to rule out the death from concommitant drug intoxication or poisoning. The written postmortem report was prepared in seven pages and were signed by the other member of the board as well. Dr. Page 32 of 50 Prasenjit Das and Dr. Anamika Das were the other members of the board who signed the postmortem report [Exbt.13]. On perusing the chemical examination report, death from concommitant drug intoxication or poisoning was ruled out. The chemical examination report [Exbt.14] has been admitted by PW-20. Thereafter, PW-20 testified in the trial as follows :
"On the requisition of IO, Principal, Agartala Govt. Medical college and hospital constituted a committee to give opinion whether the injuries of Bidyut Kanti Das were self inflicted or inflicted by other person with his consent. Accordingly, on 20.03.15 myself along with Dr. Maniranjan Debbarma and Haripada Saha examined Sri Bidyut Das and opined that injury Nos.1 to 9 are fabricated wounds (self inflicted or inflicted by other person with his consent). And injury No.10 is caused by blunt force. The details of the injuries were mentioned in the bed head ticket of patient Bidyut Das. This is our report submitted to the principal AGMC and GBP hospital on 21.03.15 signed by all of us. The report is marked as Exbt.15."
PW-14 has also opined that on being shown the knife [Exbt.M.O.3] that the injuries found on the dead body of Bithika Barman might be possible by that kind of weapon. In the cross- examination he has accepted that in the report dated 21.03.2015, it has not been separately mentioned about the nature of each injuries on the basis of bed head ticket. Age of all the injuries found on the appellant was 12 to 18 hrs old. He has denied to have submitted a fabricated report.
47. PW-21, Sri Prajit Malakar has testified in the trial that on 19.03.2015 at about 8.15 p.m., he had received an information that one person was stabbed at Salbagan area. He had recorded that Page 33 of 50 information in the station diary [GDE No.818 dated 19.03.2015] at the instruction of the officer in charge of NCC PS. He visited the place of occurrence and the information that was received revealed a cognizable offence. When he reached the place of occurrence with a small contingent of police personnel, he found one lady was lying on the road with injuries and close to her, a man was found lying on the road. One scooty, one bloodstained knife, chappal, mobile phone etc. were scattered on the road. The male person was immediately shifted to the GBP hospital by a police vehicle. By one auto rickshaw the injured female was transported to the GBP Hospital. He had prepared the hand sketch in connection with the said GDE. He admitted the hand sketch map with index [Exbt.16 and Exbt.16/1] in the trial. Thereafter, he had proceeded to examine the witnesses. He had called the dog squad to find the initial lead. Finger print experts and the experts from State Forensic Science Laboratory [SFSL] had visited the place of occurrence. The Officer-in-Charge of NCC PS had also visited the GBP Hospital where the appellant [the male injured person] and the injured female were brought. An oral ejahar was lodged to the OC, NCC PS which was reduced into writing by the officer in charge, NCC PS namely Sri Pannalal Sen. On the basis of the said ejahar, NCC PS Case No.2015/NCC/023 was registered under Sections 341/302/34 of the IPC. The case was endorsed to PW-21. After the place of occurrence was surveyed by the dog squad and the SFSL expert, the scooty bearing No.TR-06-5341, mobile set, one bloodstained knife and Page 34 of 50 some bloodstained gauze cloth, one pair of female shoes, torn pieces of saree were seized by preparing the seizure list [Exbt.17] in presence of witnesses. Thereafter, PW-21 had visited he GBP hospital and noticed some simple injuries on abdomen of the appellant [Bidyut Kanti Das]. He has succinctly stated in the trial "that there no sign of injury or anything in his shirt." On that night, he had returned to the police station and received the FIR. On that very night at about 0030 hrs., out of 6, 3 FIR named persons namely Dipankar Nath Bhowmik, Dilwar Hossain and Tanmay Das were brought to the police station. During the investigation, it was revealed that there had been certain financial transaction of those person with the appellant, but it could be ascertained that they had no role in the alleged offence and as a result, they were released in the morning. The injured female was declared dead by the GBP Hospital. Thereafter, he has given a brief narrative how he had conducted the subsequent part of the investigation, out of which the requisition made through the officer in charge, NCC PS to the Principal, AGMC and GBP Hospital is mentionworthy. By the said requisition, he was asked to give opinion about the injuries found on the body of the appellant as at that point, the doubt ranged as to whether those injuries were self-inflicted or inflicted by some other person. After the inquest over the dead body, the dead body was sent for postmortem examination. PW-21 has submitted that on the following day i.e. 20.03.2015 he had searched the rented residential accommodation of the appellant with the help of Page 35 of 50 the land lady and he had recovered some materials and seized those materials by the seizure list [Exbt.10/2] in presence of witnesses. On that day itself, the wearing apparels of the appellant at the time of occurrance were seized in presence of the witnesses by the seizure list [Exbt.12/1]. The witnesses were examined. PW-21 has testified that he had collected CDR of the mobile phones of the deceased [Bithika Barman] and the appellant [Bidyut Kanti Das]. On analysis of CDR, it was revealed that Bidyut Kanti Das called Bithika Barman from her sister‟s house on her mobile phone prior to the said gruesome incident. PW-21 continued to examine the witnesses on the basis of the evidentiary materials collected till 21.03.2015. The opinion of the team of doctors in respect of the injuries on the person of the appellant, PW-21 arrested the appellant in the hospital but he was produced to the court on giving due intimation that the appellant was under treatment in the hospital. On 24.03.2015, 25.03.2015 and 26.03.2015 he had recorded the statements of the witnesses namely Rishikanti Mitra, Suman Debnath, Birendra Das, Minoti Barman and Pratima Barman. On 27.03.2015 he had collected the SFSL report, on 28,03,2015 he had collected the sample of blood from the appellant. Dr. Abhijit Deb who was examined by PW-21 collected the blood sample. On that day, the appellant was produced in the court as the hospital authority discharged the appellant. On 29.03.2015 PW-21 interrogated the appellant on remand and thereafter he had examined witnesses on 30.03.2015, 31.03.2015 and 01.04.2015. During that Page 36 of 50 course, he examined one Gautam Dhanuk, Prakash Dhanuk, Asish Kumar Das, Sikha Barman, Sita Chandra Das, the wife of the appellant and his elder son, Joseph Das. He had identified the seizure list [Exbt.18 and Exbt.5/1] in the trial. On 02.04.2015 a certificate of marriage between the deceased and the appellant was seized from the rented residence by the seizure list [Exbtg.11/1]. In presence of the Executive Magistrate, the total transaction of crime as per description of the appellant reenacted and videographed. One witness namely Swapan Karmakar was examined by PW-21. The said witness had claimed that from his shop the weapon of offence was purchased. The investigation continued. The bank statements of the appellant was seized. Thereafter he examined the team of doctors who gave the opinion on the injuries of the appellant and by one of them, the postmortem examination was also carried out with assistance of two other doctors. On 12.05.2015 one witness namely Kalam Uddin Borobhuya was examined by PW-21. He had completed recording of the witnesses on 23.07.2015. On 20.07.2015, he received the SFSL report. On 23.07.2015 he did receive the final PM report of the deceased. Having found out a primafacie case, he filed the police report vide CS No.33/15 dated 10.08.2015 under Sections 341/302/201/494/495 of the IPC. He has categorically stated that no incriminating evidence surfaced against the FIR named persons. In the cross-examination, he has admitted that there was a case against the deceased for keeping fake currency notes of Rs.40,000/-. In the said Page 37 of 50 case, both the appellant and the deceased were jointly charge- sheeted. He had denied the suggestion that Bidyut Kanti Das [the appellant] was not charge-sheeted. He has clearly stated in the cross- examination that he did not make any attempt for conducting TI parade of the appellant. He has further stated that from the documents that he had collected and seized, presence of financial transaction between the appellant and the FIR named accused persons did surface. He had also admitted that he did not ask for recording of the confessional statement of the appellant, but it had surfaced nowhere that ever the appellant had expressed intention to confess. He has denied the suggestion made contrary to his definite statements made either in the examination-in-chief or in the cross-examination. He has denied that the prosecution case is concocted and it had falsely made out the case against the appellant. He had further stated to the query of the court that as there was no guarder of the said knife to lift the finger print from that knife I did not send it to the SFSL for opinion of the finger print experts.
48. PW-22, Sri Tapan Kanti Sarkar is the deputy collector and the magistrate [DCM] attached with the office of the SDM, Sadar. On 02.04.2015 in his presence Bidyut Kanti Das [the appellant] disclosed to how he had committed the offence and from where he had procured the weapon of offence. After recording the said disclosure statement [Exbt.19], the appellant was taken to the route which he had travelled to reach the place of occurrence. The accused was in the Page 38 of 50 police vehicle and the vehicle of PW-22 followed it. First of all, the appellant took them in the house of Tapash Dey where he used to reside as the tenant and he had shown the brief case in which he used to keep the knife after purchase. PW-22 identified the pointing out memorandum prepared by the police officer [Exbts.20/1 and 20/2]. As shown by the appellant they took that road and the important landmarks had been narrated by PW-22 in the trial. When they reached Banikya Chowmuhani, being shown by the appellant, he had shown one shop from where the appellant and the deceased consumed Mazza cold drinks and thereafter they had proceeded towards Salbagan, Agartala. From that place, they had proceeded to Maharajganja Bazar [Gol Bazar] and the appellant had shown a shop of one Swapan Karmakar from where he procured the alleged weapon of offence [knife]. A separate pointing out memorandum [Exbt.21] was prepared for discovery of that shop at the instance of the appellant. In the investigation, there had been role of several police officers, but he did not disclose their names during his cross- examination. PW-22 has given the time of preparing the disclosure statement and getting it typed. The said pointing out memorandum was prepared in presence of PW-22. The other suggestions contradicting the said stand taken by PW-22 was denied.
49. PW-23, Sri Panna Lal Sen was the Officer in Charge of NCC PS. He recorded the oral ejahar [Exbt.22] from the appellant and registered the case on filling up of the FIR form [Exbt.23]. He has Page 39 of 50 testified in the trial and stated that he recorded the oral ejahar and took the signature of the appellant after he was read over the content of the said ejahar. He has admitted in the trial that he had deputed Prajit Malakar [PW-21] to look after the occurrence and at his instance, both the injured persons were brought to the hospital.
50. PW-24, Sri Sumesh Debbarma is a formal witness who has testified and stated in the trial that he had signed the certificate of Hindu Marriage between the appellant and the deceased. He admitted the said certificate [Exbt.24] in the evidence. In the cross- examination, however, PW-24 had admitted that there was no signature of marriage register, K.D. Chaudhury, in the said certificate of marriage but he had vouched that the content of the certificate tallied with the content of the register of marriage. He had denied the suggestion that Exbt.24 was not a marriage certificate.
51. PW-25, Dr. Sabyasachi Nath is a Forensic Scientist being the Senior Scientific Officer and Assistant Chemical Examiner in the SFSL. He had received one sealed cover containing ten Exbts. Out of those ten exhibits, four exhibits were marked for toxicological department and for their report. He has testified in the trial further by stating as follows :
"Exbt.A contains one knife, exhibit B Blood stain collected from PO, exhibit C blood sample of deceased Bithika Barman, Exhibit D one suffari half shirt having blood stain, Exhibit E one suffari toujer having blood stain, exhibit F sample of blood of Bidyut Kanti Das and Exhibit J contained sample of blood of Bithika Barman.
On examination I found :Page 40 of 50
1. Blood stain of human origin could be detected in the exhibits A, B, D and E.
2. Blood group of the exhibits B, C, D and J could be determined as B Group.
3. Blood group of some part of exhibit E could be determined as O group and some part as B group.
4. Blood group of the exhibit F could be determined as O group.
5. Blood group of the exhibit A could not be determined.
6. No tear was observed on the front side of the exhibit D. The quantity of bloodstain detected in exhibit A was insufficient for group determination. After examination the remnants of exhibits have been sealed and subsequently sent back along with report.
This is my report in two pages with my initial. The report is marked as Exbt.25."
52. As already noted that the state or anyone for the victim has filed any appeal against the order of acquittal in respect of the charges framed under Sections 494/495 and 201 of the IPC. That apart, in this regard we have appreciated the findings of the trial Judge and found the finding of acquittal is well reasoned inasmuch as the prosecution has failed to prove the ceremonies constituting the marriage. In Kanuwal Ram and Others versus Himachal Pradesh Administration reported in AIR 1966 SC 614, the apex court had observed that in a case relating to bigamy, the second or the subsequent marriage has to be proved through the ceremonies constituting it. The prosecution has not examined one single witness to prove the ceremonies of marriage. However, PW-24 had produced the certificate of marriage [Exbt.4] which is admittedly a secondary evidence inasmuch as the Hindu marriage is registered after solemnization of marriage. Similarly, for the offence of concealment of the former marriage from the person with whom subsequent marriage Page 41 of 50 is contracted could not be proved by the prosecution. Even, PW-8 also did not state that there was any concealment of the former marriage to her as she has herself claimed to be the second wife of the appellant. Hence, the acquittal from the charge under Section 495 of the IPC cannot be faulted with. On a serious scrutiny of the evidence some materials can be traced out from the oral ejahar, but the said ejahar has not been proved inasmuch as during the examination under Section 313, the appellant had raised a serious objection that the oral ejahar was not written as per his statement. That apart, PW- 23 who had reduced the oral ejahar into writing did not vouch what the appellant did state to him and as such it cannot be held that the charge framed under Section 201 of the IPC for causing disappearance of evidence of offence or giving false information to screen the offender has been proved by the prosecution.
53. Let us now examine whether the charge under Section 203 has been proved or not. Ingredients of the offence punishable under section 302 are (1) an offence has been committed (2) the accused knew or has reason to believe that such offence has been committed (3) he gave false information in respect of such offence and (4) when he gave such information he knew or had reason to believe that it was false.
Even the appellant did not deny that he did give the information of being attacked by six persons who had been identified by him and their identity had been revealed in his oral statement. Page 42 of 50 Even learned counsel appearing for the appellant has quite strenuously argued before this court that the discharge of those persons were made incomplete disregard to the relevant law. We have noticed that the physical evidence such as (a) absence of any tear or bloodstain of the appellant in his safari shirt and (b) the injuries found on her person were all identified as superficial injuries inflicted by the injured himself [the appellant] or the injuries were fabricated. On the safari shirt of the appellant bloodstain of the victim was found inasmuch as the victim was driving the scooty and the appellant was the pillon rider. All the multiple injuries of the victim were close to her back. As such, there cannot be any different opinion that from the very beginning of the transaction the appellant knew none was involved in causing grievous injuries on Bithika Barman [the deceased] whom the appellant had claimed as his wife. Thus, we are of the considered view that the finding of conviction under Section 203 of the IPC does not call for any interference.
54. As the CDR has not been proved, the testimony of PW-21 that after collecting the CDR of mobile phones of Bithika Barman [the deceased] and Bidyut Kanti Das [the appellant] he found on analysis that the appellant called the deceased when she was in her sister‟s house on her mobile phone prior to the incident, cannot be treated as substantive evidence. However, the statement of PW-18 has squarely been proved that on 19.03.2015 the appellant and Bithika Barman, as referred to by the said witness as the appellant‟s wife was found at Page 43 of 50 her house where the appellant maintained a rental accommodation. At about 6/6.30 p.m. on that, from the said rented house, photographs of the appellant with the deceased were seized in witness of PW-18 and as such, her identification cannot be questioned. Thereafter, it appears from the statement of PW-22 that the appellant took the route through the by-pass and proceeded toward Chaturdash Debata Mandir, Khayerpur and thereafter they entered into the road towards Banikya Chowmuhani. The entire trail was shown by the accused himself. Thereafter, they were last shown before a shop near Nandannagar School Chowmuhani. They had purchased cold drinks from the shop of PW-5 and spent sometime there. PW-5 has categorically stated that when they left his shop the female person was riding the scooty. His shop has been identified from the disclosure statement made by the appellant in presence of witnesses. Moreover, the shopkeeper [PW-5] has identified the appellant in the trial and stated the story as noted before. Thereafter, they entered into the road connecting Chanmari-Salbagan area near the Army camp whereon the occurrence took place. The first witness who identified them is a dispassionate witness namely Swapan Pal who was working as the rifleman in TSR. He did call from the mobile phone of the female person [Bithika Barman] to her sister.
55. PW-1 narrated the fact and thereafter, the people mostly the passersby gathered there and the appellant and the deceased were taken to AGMC and GBP Hospital, at Agartala. From the place of Page 44 of 50 occurrence, on that very night, the police seized the scooty and the knife. The knife was apparently bloodstained. In the chain of the circumstances, the evidence of PW-6 has played a vital part, inasmuch as PW-6, a blacksmith has categorically stated that the knife was purchased by the appellant from his shop in the end of February, 2015, whereas the incident took place on 19.03.2015. Moreover, the appellant had personated as a meat seller, which PW-6 has proved to be a blatant lie. The said knife was used in the assault on Bithika Barman [the deceased]. PW-1 has categorically stated that the deceased had stated to her that the appellant had taken loan of a substantive amount from the money they gathered by selling the land for purpose of defraying the educational expenses of son of PW-9. PW- 9 had in the trial corroborated that fact of giving loan to the appellant. Both PWs-1 and 5 have stated that the family required further money to deposit in the college of the son of PW-9 and Bithika demanded refund of the loan. According to them, over that issue, the personal relation of the deceased and the appellant deteriorated and the appellant planned the murder pre-meditatively. Apart those episodes having proved substantively by the witnesses, the certain physical evidence as brought in the evidence, are sufficient to prove that it is the appellant and none else who stabbed Bithika Barman from behind.
56. In this regard, we may mention that even though the appellant has questioned the version recorded by PW-23 but he has not given any explanation how the stab injuries could be made when Page 45 of 50 Bithika Barman was driving the scooty and the appellant was the pillon rider. While the appellant was examined under Section 313 of the Cr.P.C. he had given another version which is akin to his oral ejahar. He has stated in response to question No.103 that the place of occurrence was dark. He was in the pillon of the scooty his wife Bithika was driving the scooty at that time suddenly four persons attacked them from behind and they fell down on the ground and he lost his sense. He received for his injuries on the abdomen he was operated twice. But he did not explain how the blood of Bithika was found on his safari shirt. That apart, his blood did not smear on his safari shirt, though, he had several injuries over his abdomen. There is no explanation for such physical evidence.
57. In the postmortem examination report [Exbt.13], the following anti-mortem injuries have been recorded. Those were not question by the defence :
"1. One stab wound measuring 2.5 cm x 0.2 cm, elliptical in shape, vertically placed, is present over the upper part of right side of chest, upper end of which is 08 cm below the clavicle and 10 cm right to midline and lower end is 131 cm above the heel. The lower angle of the wound is more acute than the upper angle. The wound is directed from front to backwards, inwards and downwards, piercing the soft tissues and muscles of anterior chest wall, 2nd intercoastal space, pleura and ultimately producing a stab wound in the anterior surface of upper part of upper lobe of the right lung measuring 2.5 cms x 0.2 cm x 5 cms. Haematoma is present along the margins of the track of wound. Right pleural cavity contains 600 ml of fluid and clotted blood. Weight of right lung is 200 gms and is pale.
2. One stab would measuring 1 cm x 0.2 cm x sterna bone deep, elliptical in shape, obliquely placed, is present on the front of right side of chest, midpoint of the wound is 3 cm right to midline and 127 cm Page 46 of 50 above the heel. The lower angle of the wound is more acute than the upper angle. The wound is directed from front to backwards, inwards and downwards, piercing the soft tissues and muscles of anterior chest wall and ultimately producing a 1 mm deep cut wound in the anterior surface of body of the sternum. Haematoma is present around the wound.
3. One stab wound measuring 3 cm x 0.2 cm, elliptical in shape, obliquely placed, is present on the front of left side of chest, midpoint of the wound is 08 cm from midline and 121 cm above the heel. The lower inner angle of the wound is more acute than the upper outer angle. The wound is directed from front to backwards, inwards, and downwards, piercing the soft tissues and muscles of the anterior chest wall, 4th inter costal space, upper part of 5th rib, pleura and ultimately producing a stab wound in the left dome of diaphragm measuring 0.5 cm x 0.2 cm x 0.1 cm and ends in the peritoneal cavity. Haematoma is present along the margins of the track of wound. Left pleural cavity contains 300 ml of fluid and clotted blood and peritoneal cavity contains 1.5 litres of fluid and clotted blood. Haematoma is present on the surface of small intestinal part of mesentery. Weight of left lung is 200 gms and is pale.
4. One stab would measuring 1cm x 0.1 cm x muscle deep, horizontally placed, is present over the outer aspect of left side on the anterior chest wall, which is 5 cms below anterior axillary fold and 17 cms from the midline.
5. Multiple abrasions (04 in number) ranging from 1 cm x 0.2 cm to 15 cms x 11 cms are present over the right side of lower part of anterior chest wall including the adjoining upper part of anterior abdominal wall over an area of 21 cms x 15 cms.
6. Multiple abrasions (06 in number) ranging from 16 cms x 4 cms to 1 cm x 0.5 cm are present, extending from the mid part of back of right arm to mid part of back of right forearm, upper end of which is situated 19 cms below top of right shoulder and lower end is situated 12 cms above right wrist joint.
7. One abrasion measuring 2 cms x 1 cm is present over the right ulnar styloid process.
8. One abrasion measuring 2 cms x 0.5 cm is present over the inner aspect of dorsum of right hand which is situated 6 cms below the right wrist.
9. One incised wound (defense wound) measuring 2 cms x 0.5 cm x 0.4 cm is present over the inner aspect of palm of right hand, which is situated 6 cms below the right wrist. Part of skin is missing.
10. One incised wound (defense wound), "U" shaped, measuring 2 cms x 0.2 cm x 0.2 cm is present on the inner aspect of right index finger in the mid part, which is situated 4 cms below the base of the finger. A skin flap of 1 cm x 1 cm is raised.Page 47 of 50
11. One abrasion measuring 2.5 cms x 0.2 cm is present on the back of left elbow.
12. One stab wound measuring 2.5 cms x 0.2 x 3 cms is obliquely present on the lateral aspect of left forearm, which is 5 cms below the left elbow. The lower outer angle is more acute than the upper inner angle.
13. One abrasion measuring 3 cmsx 2 cms is present over the left ulnar styloid.
14. Multiple abrasion (03 in number) ranging in measurement from 2 cms x 1 cm to 3 cms x 1.5 cms, are present over the dorsum of left hand over an area of 6.5 cms x 5 cms, which are 4 cms below the leftr wrist joint.
15. One incised wound (defense wound) 3 cms x 0.2 cms x 1.3 cms is present on the first webbed space of left hand. Underlying muscles and bone are exposed and tendons are cut.
16. one incised wound measuring (defense wound) 1.2 cms x 0.1 cm x 0.1 cm is present over the palmar aspect of left ring finger, 3.5 cms below the base.
17. One incised wound measuring (defense wound) 1 cm x 0.1 cm x 0.1 cm is present on the palmar aspect of left little finger, 3 cms below the base.
18. One incised wound measuring 10 cms x 1 cm x 1 cm is present over the outer aspect of lower part of left thigh, which is 38 cms below the anterior superior iliac spine.
19. Multiple abrasions (03 in number) ranging in measurement from 0.2 cm x 0.2 cm to 3.5 cms x 3 cms are present over the left knee over an area of 8 cms x 5 cms. "
58. As stated, every injury excepting two or three, was abrasive injuries or defence wounds and had been caused at the back of the body shows the person just behind her has caused those injuries, else the pillon-rider would have suffered injuries on his back but he had suffered only on his abdomen. For that reason, out of apprehence to be identified as the offender, by means of intelligible maneuver, the appellant had stated that they fell on the ground and thereafter they were attacked. This theory cannot be sustained for the simple reason that in that event, most of the injuries would have been on the frontal part of the body but mostly the injuries were close to Page 48 of 50 the back of the body of the deceased. What surfaces as the circumstances when the episodes are put together is that while the deceased was driving the scooty, the appellant by the knife [Exbt.M.O.1] had fiercely assaulted the deceased. That is the reason in the safari shirt the sprinkled bloodstain of the deceased was found.
59. The team of the doctors led by PW-20 has categorically stated that injuries on the abdomen of the appellant were all superficial and fabricated injuries. Those injuries have been either inflicted by the appellant himself or by someone else at his directive. Even his blood from those injuries were not found on his safari shirt. That either indicates to the probability that the safari shirt was pulled up at the time of fabricating those injuries or the safari shirt was removed for causing those injuries. Injuries were caused by sharp cutting weapon but there is no tear, even slightest one, on the safari shirt. As such, we are left with no other inference to draw, but to hold that those injuries on the person of the appellant were self-inflicted. The appellant had planned to murder the deceased and after that to screen him from the liability of the said murder, he had planted the story and to support such stories he had caused self-inflicted injuries on his abdomen. Later on, the appellant gave false information in respect of six persons committing murderous assault. Their presence was verified from their mobile location at the relevant hour. Interestingly, in the oral ejahar the appellant had named six persons, but during the examination, under Section 313 of the Cr.P.C. he Page 49 of 50 referred four persons without naming anyone. The objection as raised for absence of motive, this court is of the view that the motive that has surfaced apparently is that the appellant was annoyed by the demand of refund of the loan made to him by the deceased and hence it has been suspected that Bithika Barman has been murdered by the appellant. Absolute proof of motive even in a case based on circumstantial evidence cannot be treated as the foundation of all other evidence. On the contrary, substantially the proved episodes constituting the chain of circumstances may lead to perception of motive. Such evidence is sufficient to convict the accused. Moreover, in this case, it is apparent that the appellant planned the murder beforehand and for that purpose he had carried the knife from his residence. In Chitta Malakar(supra), this court had occasion to observe that even without any motive, the crime can be committed. Absence of motive will not make an act which is otherwise an offence. Strong motive in a case based on circumstantial evidence provides exculpated additional assurance only.
60. What Mr. Chakraborty, learned counsel for the appellant has submitted that the discovery of fact may not be covered by Section 27 of the Indian Evidence Act. But we find that the appellant did not only disclose the places of transaction but also had shown those places to the police officer who had prepared the memorandums of pointing out where the independent witnesses have signed in confirmation. Further confirmation has come from the subsequent Page 50 of 50 events of disclosure those took place before PW-22. Thus, the requirement, as underlined in Haryvadan Babubhai Patel (supra) to conform the doctrine of confirmation by subsequent events is met.
61. We have no hesitation therefore to place our reliance on the discovered fact or materials which the trial Court has correctly relied on. On cumulative reading of the circumstances as proved by the prosecution, we affirm the view taken by the trial court.
In the result, the appeal stands dismissed. The appellant shall serve out the remaining part of the sentence.
Send down the LCRs forthwith.
JUDGE JUDGE Sabyasachi B