Gauhati High Court
Laba Chandra Dutta And Ors. vs State Of Tripura on 26 November, 1999
Equivalent citations: 2000CRILJ1523
Author: A.K. Patnaik
Bench: A.K. Patnaik, P.K. Sarkar
JUDGMENT A.K. Patnaik, J.
1. This Criminal Appeal (Jail) has been filed by Laba Chandra Dutta, Kusha Chandra Dutta and Pradip Dutta under Section 374(2) of the Criminal Procedure Code, 1973, against the judgment and order dated 15-12-97 of the Additional Sessions Judge, West Tripura, Agartala, in Sessions Trial No. 21 (WT/A) 93, convicting them under Section 302 read with Section 34, IPC and sentencing them to undergo life imprisonment and also fine of Rs. 2000/- each, in default to undergo further imprisonment for another six months.
2. The facts briefly are that on 13-6-84 at about 9.15 pm. Shri Sudhir Deb, the informant, lodged an oral complaint in the Police Station of Sidhai stating that at about 8.00 p.m. on 13-6-84 when he was in his office at Narendrapur Tea Garden, Shri Jiten Kanda, a labourer of the tea garden and a boy of about 5/6 years old came to his office room panting and told him that when he along with Haran Sarkar, brother of Nirmal Sarkar and the little boy who is the son of Nirmal Sarkar were returning to their house from market along a road in the tea garden, in the mid-way all of a sudden, Bhuttu Roy of Sidhai and four others jumped in front of them and started cutting blows on the person of Haran Sarkar and Nirmal Sarkar at Randum with sharp weapons but Jiten Kanda and the son of Nirmal Sarkar managed to save themselves and came to the garden office. Thereafter Shri Sudhir Deb and some people of the garden rushed along the western side road of the garden and on the mid-way they saw that Nirmal Sarkar was lying dead on the road with throat half cut and Nirmal Sarkar was lying with deep bleeding injuries. Thereafter the informant lifted Nirmal Sarkar to the garden jeep and rushed to the Police Station. The oral complaint of Shri Sudhir Deb was recorded by the Officer-in-Charge of Sidhai Police Station and registered as Sidhai PS Case No. 7(6) 84 under Sections 302/326/34, IPC. Nirmal Sarkar was sent to Mohanpur PHC but he succumbed to his injuries on the same night. Investigation was taken up by the Investigating Officer and a charge-sheet was filed under Sections 120B/302/34, IPC, against Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta alias Paidya Dutta as well as Parimal alias Bhutto Roy showing him as absconder. The learned Chief Judicial Magistrate, West Tripura, Agartala, took cognizance of the offences and committed the case to the Court of the learned Sessions Judge, West Tripura, Agartala. The learned Sessions Judge, West Tripura, Agartala, thereafter, transferred the case to the Court of the Additional Sessions Judge, West Tripura, Agartala, who framed charges against the accused persons under Sections 120B, 302/34, IPC. Before the learned Additional Sessions Judge, the aforesaid three accused persons pleaded not guilty. The prosecution examined as many as 23 witnesses and adduced documentary evidence such as the FIR, inquest report, seizure list, dead body challan and two post-mortem examination reports. The prosecution also produced some seized materials. No evidence was adduced on behalf of the defence. By the impugned judgment, the learned Additional Sessions Judge acquitted the three accused persons from the charge under Section 120B, IPC but convicted them under Sections 302/34, IPC and sentenced them to undergo life imprisonment and fine of Rs. 2000/- each in default to undergo imprisonment for another six months.
3. At the hearing of this appeal, Mr. P.K. Biswas, learned counsel for the appellants, submitted that the conviction of the three accused persons was based on the evidence of only two eye-witnesses, namely Jiten Kanda (PW-21) and Hachan Sarkar (PW-22). But the FIR lodged by Shri Sudhir Deb (PW-1) would show that PW-21 had only identified Bhutto Roy of Sidhai having dealt the cutting dao blows on the person of Haran Sarkar and Nirmal Sarkar and he had not been able to identify the four other miscreants. Similarly, PW-22 who was 5/6 years old at the time of occurrence had also not been able to identify the miscreants other than Bhutto Roy of Sidhai at the time of incident. This was confirmed by the evidence of Shri Sudhir Deb (PW-1), the informant who in his deposition stated that Jiten Kanda and a boy aged about 5/6 years old came to his office running and panting and informed him that some miscreants caused serious injuries on the person of Nirmal Sarkar and Haran Sarkar by assaulting them by sharp cutting weapons on the road and they disclosed that among the miscreants they were able to recognise one Bhutto Roy. According to Mr. Biswas, if PWs-21 and 22 had really seen the accused persons Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta, dealing blows with sharp weapons on the person of Haran Sarkar and Nirmal Sarkar, they would have certainly disclosed this fact to PW-1 who would have accordingly informed the police and the names of the aforesaid three accused persons would have found place in the FIR dated 13-6-84. He further contended that the FIR as well as evidence of PW-1 would show that soon after the fact of assault on Haran Sarkar and Nirmal Sarkar was disclosed by PWs-21 and 22 to PW-1, the employees and labourers of the tea garden went along with PW-1 to the place of occurrence but none of the emplolyees or labourers of the tea garden or PW-1 have stated in their evidence that they were informed either by PW-21 or PW-22 that Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta gave cutting blows with sharp weapons on the person of Nirmal Sarkar or Haran Sarkar. Mr. Biswas vehemently argued that in a similar case in Gopal Deb v. State of Tripura, Criminal Appeal (S) Nos. 720-722/95, the Supreme Court having found that the two eye-witnesses who had seen the incident and seen the miscreants fled away from the place of occurrence did not divulged the names of the assailants to the informant who lodged the FIR and on this ground alone the Supreme Court held that the appellants were entitled to benefit of doubt. He further pointed out that in the said judgment, the Surpeme Court further observed that if really PW-12 had seen the incident and PW-2 had seen the miscreants running away immediately after the occurrence, it was expected in the fitness of the things that they would have divulged the names of the assailants. In the present case, according to Mr. Biswas, if PW-21 and PW-22 had seen the three accused persons Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta dealing cutting blows with sharp weapons on the person of Nirmal Sarkar and Haran Sarkar, they would have divulged the names of aforesaid three accused persons to others if not to PW-1. But the evidence of other witnesses such as PW-2, P.W. 3 and PW-7 would show that the names of the aforesaid three accused persons had not been divulged to them by PW-21 and P.W. 22 and that only the name of Bhutto Roy had been disclosed. Mr. Biswas pointed out that it was only P.W. 4 and P.W. 11, the wives of the two victims, who implicated the three accused persons but they were not eye-witnesses to the occurrence. Mr. Biswas further submitted that the evidence of PW-21 was that he could identify Laba Chandra Dutta and Kusha Ranjan Dutta out of 5 or 6 miscreants who had dealt cutting blows with sharp weapons on the person of Nirmal Sarkar and Haran Sarkar with the help of light of a mashal cannot be relied on because in his statement under Section 164, Cr.PC, before the Magistrate on 19-6-84, he had not stated that he had identified the said accused persons with the help of a mashal. Mr. Biswas further pointed out that PW-22 was a minor aged about only 5/6 years old when the occurrence took place on 13-6-84. His evidence that Pradip Dutta dealt a cutting blow on his uncle Nirmal Sarkar and thereafter Laba Chandra Dutta and Kush Ranjan Dutta dealt dao blows on his father Haran Sarkar cannot be believed because he had not disclosed the names of the aforesaid three accused persons to PW-1 soon after the occurrence on 13-6-84. Mr. Biswas further pointed out that in his cross-examination, PW-22 has further stated that he had not known anybody named Bhutto Roy. This statement contradicted his earlier statement to PW-1 soon after the occurrence on 13-6-84 that Bhutto Roy of Sidhai had jumped in front of them and dealt cutting blows on the person of Nirmal Sarkar and Haran Sarkar. According to Mr. Biswas the only two eye-witnesses PWs-21 and 22 had sought to fabricate a false story after the FIR was lodged implicating the three accused persons and, therefore, the conviction should be set aside. He cited the decision of the Supreme Court in the case of Hate Singh v. State of MB 1953 Cri LJ 1933 : (AIR 1953 SC 468) to the effect that where the facts which the prosecution themselves do not controvert in the witness-box are found to accord with the accused's story, the Court should not overlook it, by drawing presumptions against it.
4. Mr. H. Sarkar, learned Additional PP, Tripura, however, sought to sustain the impugned judgment of the learned Additional Sessions Judge. He submitted that the two eye-witnesses PWs-21 and 22 have supported their evidence before the police under Section 161, CrPC. He vehemently argued that it is clear from the evidence that the said two eye-witnesses PWs-21 and 22 were very much present at the time of occurence. Their evidence, therefore, cannot be lightly discarded. He cited the decision of the Supreme Court in the case of State of U.P. v. Ranjha Ram AIR 1986 SC 1959 : (1986 Cri LJ 1906) in which the Supreme Court held that where the witness are the sons of the deceased, their evidence does not lose credibility on that score and their evidence has to be scrutinised with greater care in order to find out whether it suffers from embellishments or exaggerations due to interestedness. According to Mr. Sarkar, even though PW-22 was a son of the deceased Haran Sarkar, his evidence cannot be discarded altogether. Mr. Sarkar pointed out that in the impugned judgment, the learned Additional Sessions Judge has given his reasons as to why he was relying on the evidence of PWs-21 and 22, although they did not disclose the names of the aforesaid three accused persons soon after the incident on 13-6-84. Mr. Sarkar referred to the evidence of PW-13 who stated that out of fear the crowd which had assembled at the place of occurrence soon after the incident asked nothing to PWS-21 and 22 and they also disclosed nothing as to how the double murder was caused. Mr. Sarkar relied on the statement of PW-21 recorded under Section 164, CrPC, Ext-6, to show that the three accused persons had committed the offence.
5. A statement of witness recorded under Section 164, CrPC, by the Magistrate is not substantive piece of evidence. It is not recorded in presence of the accused. Nor is the accused given the opportunity to cross-examine the witness. Hence Ext-6 which is the statement of PW-21 recorded by the Magistrate under Section 164, CrPC, on 19-6-84 cannot be used by the prosecution except for the purpose of contradiction or corroboration of the evidence of PW-21 given in the Court. On a perusal of the evidence of PW-21, it appears that he has stated in his examination-in-chief that on the day of the incident when he along with others reached the middle of the tea garden, he noticed that about 5/6 persons jumped and came to the road and one of them dealt dao blows on the person of Haran Sarkar and Nirmal Sarkar and then started running and he and Hachan Sarkar started running towards the office of the tea garden. He has also stated that he could identify Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta out of those 5/6 persons with the help of light of a mashal. He left all the grocery articles and bamboo stick and after going to the office of the tea garden, he found PW-1 to whom he disclosed that Haran Sarkar and Nirmal Sarkar were severly assaulted by sharp weapons and then he became senseless. He regained sense after 2 1/2 hours and found many persons of the tea garden. PW-21 has also stated that he knew the aforesaid three accused persons as they were his neighbours and identified them as Laba, Kusha and Pradip in the dock. He has also stated that he was brought before the Magistrate at Agartala and he narrated about the incident. In the cross-examination, PW-21 has admitted that he stated to PW-1 that out of 5/6 miscreants, he could identify only Bhutto. PW-21 had met PW-1 soon after the incident when he ran away from the place of occurrence and had narrated the incident to PW-1. If PW-21 had been able to identify Laba and Kusha with the help of light of a mashal, he would have divulged the names of Laba and Kusha also to PW-1. The learned Additional PP, Tripura, however, sought to explain relying on the evidence of PW-13 that it was out of fear of double murder that PW-21 did not disclose the names of the accused persons. It is difficult to accept the aforesaid argument of the learned Additional PP, Tripura, as admittdly PW-21 had disclosed the name of one of the accused persons Bhutto Roy to PW-1. That apart, PW-21 had stated that after he regained his sense after 21/2 hours, he found there so many persons of the garden. He would have divulged the names of Laba and Kusha to some of them who had assembled there after he regained his sense. None of the witnesses out of those persons who had been examined by the prosecution have stated in their evidence before the Court that PW-21 had disclosed the names of the aforesaid three accused persons.
6. The other eye-witness of the incident was PW-22, the son of the victim Haran Sarkar. He was a minor aged about 5/6 years old when the occurrence took place in the year 1986. He had stated in his evidence in examination-in-chief that his uncle Nirmal Sarkar had a burning mashal and Laba, Kusha and Pradip were in a bush by the Northern side of the road and suddenly they came to the road and attacked his father and his uncle. Laba and Kusha dealt dao blows on the person of his father. He got afraid and immediately thereafter PW-21 filed away from there rescuing him. Then they went to the garden office and disclosed the incident to PW-1. He has also stated that Laba, Kusha and Pradip were their neighbours and therefore he knew them and has identified all the aforesaid three accused persons in dock. But in the cross-examination, he has stated that he did not know anybody named Bhutto Roy. He has also stated that he did not state the name of Bhutto to Daroga Babu. The attention of PW-22 was drawn to his statement before the police and his statement was marked as Ext-A subject to proof by the IO. At the end of the cross-examination, however, he admitted that Bhutto is the brother of Bimal Roy, his neighbour. The IO has been examined as PW-23 and he proved the statement of PW-22 marked Ext-A. A reading of Ext-A shows that PW-22 in his statement recorded under Section 161, CrPC, clearly stated that Bhutto and others jumped from the roadside and struck his paternal uncle with a dao. There is, therefore, a clear contradiction between the statement of PW-22 before the Police under Section 161 CrPC, and his evidence before the Court relating to the involvement and identification of Bhutto in the offence. The contention of Mr. Sarkar that the PW-22 has stood by his version before the police under Section 161, CrPC, is, therefore, not correct, in the State of U.P. v. Ranjha Ram (1986 Cri LJ 1906) (SC) (supra) cited by Mr. Sarkar, the Supreme Court has held that the evidence of witnesses who were the sons of the deceased does not lose credibility on the score that they are sons of the deceased but has cautioned that their evidence has to be scrutinised with greater care in order to find out whether it suffers from embellishments or exaggerations due to interestedness. As discussed above, when the PW-22 stated before the police that Bhutto was one of the accused persons who had jumped and attacked, in his evidence before the Court he sought to change his version and has gone far and stated that he did not even know Bhutto and it was only when he was cross-examined more on the point he admitted at the end of the cross-examination that Bhutto is the brother of Bimal Roy, his neighbour. Such a witness cannot be relied on for the purpose of conviction of the offence of murder.
7. Soon after the incident on 13-6-84 at about 7.30 p.m. both PWs-21 and 22 ran away from the place of occurrence and informed PW-1 at 8.00 p.m. about the incident. PW-1 in his evidence has stated that PWs-21 and 22 disclosed that among the miscreants they were able to recognise only one who was known as Bhutto. In the FIR lodged by PW-1 before the officer-in-charge of Sidhai PS it was also stated that PWs. 21 and 22 came to the office room of PW-1 panting and told that when Haran Sarkar and Nirmal Sarkar as well as PWs-21 and 22 were returning along the garden road, in the mid way all of a sudden Bhutto Roy of Sidhai and four other persons jumped in front of them from the Northern side of tills and started cutting dao blows on the person of Haran Sarkar and Nirmal Sarkar with sharp weapons. It is thus clear that the accused persons Laba, Rusha and Pradip had not been identified by both PWs-21 and 22 when they reported to PW-1 within half an hour or one hour of the incident. It is for this reason that in the FIR the names of the said accused persons did not find place.
8. In the unreported judgment of the Supreme Court delivered on 7-5-97 in Criminal Appeal (S) Nos. 720-722/95 the Supreme Court did not rely on the evidence of the witnesses and has held that the accused persons were entitled to benefit of doubt for the following reasons :
As earlier noticed Anil Debnath (PW. 1) lodged the FIR after having met PWs 2 and 12. In spite thereof he did not disclose the names of the miscreants in the FIR. While on this point it need be mentioned that in cross-examination P.W.I admitted that nobody told him the names of the assailants even though he tried to ascertain. Coming now to the evidence of P.W.2 we find that she admitted in cross-examination that many people had come at the spot including PW-1 but she did not tell anybody that she saw accused persons fleeing. So far as P.W. 12, the sole eye-witness is concerned, he also gave a similar statement in cross-examination and admitted that he did not tell any of the persons who assembled there that he saw the occurrence and that he could recognise the miscreants. Such being the state of evidence obtaining on record we are unable to place implicit reliance upon the evidence of P.Ws. 2 and 12 to sustain the conviction of the appellants. If really P.W. 12 had seen the occurrence and P.W. 2 had seen the miscreants to run away immediately after the occurrence it was expected, in the fitness of things, that they would immediately divulge the names of the assailants more so when P.W. 1 categorically stated that he asked the names of the assailants from P.Ws. 2 and 12.
The present case is identical to the case in Criminal Appeal (S) No. 720-722/95. In the present case, PW-1 had lodged the FIR on the basis of the information furnished to him by PWs-21 and 22. In the FIR he has not stated the names of the accused persons obviously because PWs-21 and 22 had not been able to identify the accused persons amongst 5/6 miscreants who had assaulted the deceased.
9. In Ram Kumar Pande v. State of Madhya Pradesh AIR 1975 SC 1026 : (1975 Cri LJ 870) the Supreme Court has held :
9. No doubt, an F.I.R. is a previous statement which can strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered body to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m.on 23-3-1970, were bound to have been communicated. If his daughter had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
The aforesaid decision of the Supreme Court equally applies to the present case. If PWs-21 and 22 had seen the appellants inflicting blows on the person of Haran Sarkar and Nirmal Sarkar, they would have certainly disclosed this fact to PW-1 and the names of the appellant have found place in the FIR. Omission of such an important fact of involvement of the appellants in the offence affected the probability of the case and is relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
10. There is other important feature in the prosecution case on account of which the appellants are entitled to benefit of reasonable doubt. PW-21 had stated in his examination-in-Chief that he could identify the appellants out of 5/6 miscreants with the help of light of a mashal but the fact that he identified the appellants in the light of a mashal has not been corroborated in his statement under Section 164, CrPC, recorded by the Magistrate on 19-6-84 (Ext-6). This has been put to him in his cross-examination and he stated that he did not remember that whether he stated before the Magistrate that he could identify the appellants with the help of light of a mashal. PW-22 has also stated in the examination-in-chief that his uncle had a burning mashal in his hand. But the seizure list Ext-2 does not disclose that any mashal was seized from the place of occurrence. PW-23, the Investigating Officer has stated in examination-in-chief that a Kupabati was seized from the place of occurrence but has sought to explain in his cross-examination that although mashal was seized, Kupabati was mentioned in the seizure list. But the description of the lamp as given in the seizure list Ext-2 against item No. XII is one flat lamp made of coconut oil can?. The incident occurred at about 7/7.30 p.m. when admittedly it was dark and the accused persons could not be identified without light. Thus the prosecution story of identification of the appellants by PWs-21 and 22 with the help of light of a mashal appears to be an afterthought introduced to lend credence to the prosecution story. It is, therefore, difficult to rely on the prosecution case that PWs-21 and 22 identified the appellants out of 5/6 miscreants particularly when the first verson of PWs-21 and 22 before the PW-1 soon after the incident at about 8.00 p.m. on the same night was that they could identify only Bhutto out of 5/6 miscreants.
11. In the result, appellants are entitled to benefit of reasonable doubt. The appeal is allowed and the conviction of appellants, namely Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta under Section 302/34, IPC is set aside and they are acquitted of the charges. The appellants are in custody. They shall be released forthwith.
P.K. Sarkar, J.
12. I agree.