Jaharlal Roy v. State of Tripura — 1996 DIGILAW 3 (GAU)

N.G. Das, J. — This appeal is directed against the judgment and order dated 12.8.1994 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Case No.34 (WT/K) of 1994 whereby the appellant was convicted under section 302IPC and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees five thousand), in default to suffer rigorous imprisonment for a further period of 6 (six) months. 2. A brief narration of the fact leading to the present appeal is that on 21 st of June, 1993 at about 8 AM when Ajit Deb Barma was ploughing his land near his house he heard the cries viz "save me, save me, I am being killed" coming from the near by jungle which is situate to the West of his house. On hearing the cries Ajit Deb Barma (PW 3) went to his house which is situate on a tilla land and therefrom he looked towards the jungle and found that one person was causing hurt to another person by means of a sharp cutting weapon. On seeing this, he raised alarm which attracted one Ramabrata Deb and another person named Rajendra Deb Barma (PW 2). These two persons on hearing the cries came to the house of Ajit Deb Barma when Ajit Deb Barma told him about the occurrence which he found from his house. Thereafter these three people along a few others encircled the jungle and after entering into the jungle they found the dead body of Joykrishna Das lying on the ground with marks of bleeding injuries on his person. At that time they also5 found the appellant named Jaharlal Roy sleeping on the ground near the bund of a chhara at a distance of about half a kani from the place where the deceased was lying. All the persons who assembled there apprehended the appellant and thereafter at about 13.05 hours one Jogendra Deb Barma came to the PS and informed Sub Inspector, Manindra Debnath (PW 16) that a deadbody was found lying in the jungle of village Tablabari and the villagers detained one person. 3. All the persons who assembled there apprehended the appellant and thereafter at about 13.05 hours one Jogendra Deb Barma came to the PS and informed Sub Inspector, Manindra Debnath (PW 16) that a deadbody was found lying in the jungle of village Tablabari and the villagers detained one person. 3. On receipt of this information Sub Inspector Manindra Debnath entered the gist of the information in the GD of the Thana under Entry No.743 dated 21.6.1993 and pursuant to this GD Entry Sub Inspector Benulal Kar (PW 17) left for the place of occurrence along with the staff for necessary investigation. 4. After coming to the place of occurrence Sub Inspector Benulal Kar found the dead body lying in the jungle of village Purba Tablabari. So he arranged for guarding of the dead body. At that time Ramkrishna Das (P W 1) lodged an ejahar with him and he recorded the ejahar as per the version of Ramkrishna Das. 5. During his investigation Sub Inspector Shri K!ar prepared the hand-sketch map of the place of occurrence, seized blood stained earth from the place of occurrence by means of a seizure list, prepared inquest report, sent the dead body to hospital for post mortem examination, arrested the accused appellant and thus after completing investigation charge sheeted the appellant for his prosecution under section 302 of IPC. 6. The case being exclusively triable by the Court of Sessions, learned Sub Divisional Judicial Magistrate, Khowai committed the case to the Court of learned Sessions Judge, West Tripura, Agartala who transferred the case to the Court of learned Additional Sessions Judge, West Tripura, Agartala for disposal. Accordingly the accused was produced before the learned Additional Sessions Judge who, after hearing the learned counsel for the parties framed a charge under section 3 02 of IPC against the appellant for having committed the offence of murder by intentionally causing the death of Joykrishna Das on 21st of June, 1993 at about 8/8.30 AM. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. In order to bring home the charge, the prosecution examined 18 witnesses in all and also took the aid of documentary evidence, namely, inquest report, seizure list, GD Entry, hand-sketch map, post mortem examination report etc. The accused led no evidence in support of his defence. 7. In order to bring home the charge, the prosecution examined 18 witnesses in all and also took the aid of documentary evidence, namely, inquest report, seizure list, GD Entry, hand-sketch map, post mortem examination report etc. The accused led no evidence in support of his defence. However, his defence so far as it can be ascertained from the trencl of cirbss-examination as well as the statement he gave at the time of his examination under section 313 of CrPC is that he has been falsely implicated in this case. His defence is a total denial of the prosecution case. 8. On consideration of the evidence on record, learned trial Court convicted the appellant under section 302 of IPC and sentenced him as aforesaid. 9. In recording a finding by the learned trial Court for basing the conviction seven circumstances were taken into consideration : (1) First is that on the previous night of the occurrence Joykrishna Das told his wife (PW 7) and his mother (PW 10) that he would go to purchase fish on that night and that he would go along with the appellant and for the purpose of purchasing fish he took an amount of Rs.3,200/- from PW 10. (2) The second is that PWs 9 and 12 saw the appellant proceeding with the deceased along the 'ail' (ridge) of the land towards the jungle of the village Tablabari before the occurrence. (3) The third is that the appellant was fond of money as disclosed by PW 13. (4) The fourth circumstance relied on by the learned Additional Sessions Judge is that PW 3 Ajit Deb Barma heard the cry coming from the jungle and he also found that some person causing injuries to another. (5) The fifth circumstance is that PW 3 raised cries which attracted the villagers and all of them surrounded the jungle and found the appellant lying on the ground at a certain distance from the deceased. (6) The sixth circumstance is that Ganjee and Shirt which were found close to the place where the appellant was lying were washed and (7) The seventh circumstance is that the dead body of Joykrishna Das was found lying with multiple cut injuries and the handle of the weapon of offence which was found near him was stained with blood. 10. 10. Admittedly there is no ocular evidence to testify as to who inflicted the injuries on the deceased. The entire case is based on circumstantial evidence. It is also not disputed at the Bar that if the conviction is to be based on circumstantial evidence, the circumstance must be such that it is the appellant and none else could have committed the offence. It must be categorically shown from the evidence that the circumstances lead to the irresistible conclusion that it was the appellant and none else who was responsible for causing the death of the deceased. 11. In the case of Hanumant vs. State of Madhya Pradesh reported in AIR 1952 SC 343 (1953 Crl LJ 129) the Apex Court made the following observations in respect of evaluation of circumstantial evidence : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that with all human probability the act must have been done by the accused." 12. In this case it is not disputed that the deceased Joykrishna Das died on account of the injuries the sustained on his person. The post mortem examination on the deadbody of the deceased was held by PW 15 Dr Ranendra Kumar Barman and he found as many as eleven injuries which are as follows : 1. Incised wound over the fore-head measuring 3"x ½" x 1/3". 2. Incised wound over the left neck measuring 2"x 1 "x ½*". 3. Incised wound over the left cheek measuring 1½'' x 1" x 1/3". 4. Incised would over left shoulder measuring 3½" x 1" x 3/4". 5. Incised would over left uper chest with bevelling 2 in number (a) 3 ½" x 1" x 3/4". 2. Incised wound over the left neck measuring 2"x 1 "x ½*". 3. Incised wound over the left cheek measuring 1½'' x 1" x 1/3". 4. Incised would over left shoulder measuring 3½" x 1" x 3/4". 5. Incised would over left uper chest with bevelling 2 in number (a) 3 ½" x 1" x 3/4". It is situated 1" above the left nipple, (b) measuring 21/2" x 1" x 3/4". It is situated just below the left nipple. 6. Incised would over the anterolateral aspect of the mid-left leg-measuring 2"x1"x'/2". 7. Incised would over the posterior aspect of the mid-right fore-arm- measuring l½"x1"x3/4". 8. Chop wound over the right wrist. By the said wound the right wrist of the deceased wan almost severed from his right hand. The edges of the above mentioned injuries No. 1 to 8 are clean-cut and well defined and caused by sharp-cutting weapon like dao. 9. Cut laceration over the posterior aspect of the right elbow joint-measuring 1½" x 1". 10. Cut laceration over the posterior aspect of the mid-right arm-measuring 1" x ½". 11. Cut laceration over the chin : measuring 1"x 3/4". The margines of the injuries mentioned under SI No.9 to 11 are irregular and caused by sharp cutting instrument. 13. In the opinion of the doctor all the wounds he found on the person of the deceased were caused by sharp cutting weapon and that those were homicidal in nature. He further opined that the death was caused due to cardiorespiratory failure and shock resulting from the injuries. The doctor also opined that the injuries he found on the person of the deceased were sufficient in the ordinary course of nature to cause the death. 14. Now the only question is as to whether the prosecution has been able to prove without any reasonable doubt that it was the appellant who caused the death of the deceased. In this regard we may, at first, turn to the first information report. The first information report marked as Ext 1 was lodged by PW 1 Shri Ramkrishna Das. Now the only question is as to whether the prosecution has been able to prove without any reasonable doubt that it was the appellant who caused the death of the deceased. In this regard we may, at first, turn to the first information report. The first information report marked as Ext 1 was lodged by PW 1 Shri Ramkrishna Das. A perusal of this first information report indicates that on 21.6.1993 at about 10/10.30 AM informant came to know from some persons that his cousin viz the deceased had been murdered at Tablabari and on receipt of this information he along with a few other rushed to that locality and came to know from Ajit Deb Barma and others that on that date at about 8/8.30 AM Joykrishna Das, the deceased was murdered by the appellant and that the appellant was apprehended by the villagers when he made an abortive attempt to flee away. This ejahar further shows that Sub Inspector Benulal Kar recorded this ejahar and thereafter he forwarded it to OC, Khowai PS. But it has been argued on behalf of the appellant that this first information report has been hit by section 162 of CrPC and we also feel that this first information report (Ext 1) has been hit by section 162 of CrPC for the reason that it will appear from the evidence of PW 16 Manindra Debnath that on 21.6.1993 at about 13.05 hours one Jogendra Deb Barma came to the PS and informed him that a dead body was lying in the jungle of Tablabari village. Sub-Inspector Shri Debnath also deposed that on receipt of this information he entered the gist of the information in the GD of the PS vide GD Entry No.743 dated 21.6.1993 and thereafter Sub-Inspector Shri Benulal Kar being senior to him proceeded to the place of occurrence along with the staff for investigation. Sub-Inspector Benulal Kar(PW 17) also deposed to the effect that in connection with the GD Entry No.743 dated 21.6.1993 he along with the staff proceeded to the place of occurrence for investigation. The GD Entry has been marked as Ext 7. 15. Sub-Inspector Benulal Kar(PW 17) also deposed to the effect that in connection with the GD Entry No.743 dated 21.6.1993 he along with the staff proceeded to the place of occurrence for investigation. The GD Entry has been marked as Ext 7. 15. The GD Entry being numbered 743 dated 21.6.1993 recorded at 13.05 g hours reads: "This time one Jogendra Deb Barma S/o Late Rabi Charan of Khamarbari PS Khowai and Budrai Deb Barma S/o Shri Baulk Chandra Deb Barma of Tablabari called at PS and reported that one unknown Bengali youth lying dead at Purba Tablabari with a sharp cut bleeding injury. They also reported that one person detained of that locality in connection with the above noted incident. Noted the fact in the GD and SI BL Kar with staff left for Purba Tablabari to enquire the matter and taking necessary action. 16. So the contents of the GD Entry No.743 dated 21.6 that this information disclosing commission of a cognizable offence was received by Sub Inspector Shri Manindra Debnath before the Ext I ejahar was lodged with PW 17 Sub Inspector Shri Benulal Kar. 17. In view of the facts we feel no hesitation to hold that this Ext 1 ejahar has been hit by section 162 of CrPC. 18. Coming now to the first circumstance relied on by the learned Additional Sessions Judge it will be found that learned Additional Sessions Judge accepted the version of PW 7 Smti Sipra Rani Das, the wife of the deceased that on the date of occurrence at dawn the deceased left the house with a sum of Rs.3,200/-for the purpose of purchasing fish. But during cross-examination her; attention was drawn to the statement that was recorded under section 161 CrPC and was found that she did not make any statement to the Investigating Officer to the effect that on that fateful day at dawn her husband left the house with a sum of Rs.3,200/-. PW 10 Smti Shyamalibala Das who is the mother of the deceased, however, stated that on the previous night of the day of occurrence deceased took a sum of Rs.3,200/- from her for the purpose of business and that on the following morning at 5 AM deceased left the house. It does not, however, appear from her version made in the examination-in-chief that she saw the deceased leaving the house with a sum of Rs.3,200/-. It does not, however, appear from her version made in the examination-in-chief that she saw the deceased leaving the house with a sum of Rs.3,200/-. Further during cross-examination her attention was drawn to the statement that was recorded under section 161 of CrPC and it was found that while giving the statement to the Investigating Officer she did not make any statement to the effect that .on die previous night deceased took a sum of Rs.3,200/-from her. 19. In view of the evidence discussed above we are at a loss to understand how learned Additional Sessions Judge could place reliance upon such a circumstance which has not at all been proved. 20. The next circumstance relied on by the learned Additional Sessions Judge is that both PWs 9 and 12 found the appellant and die deceased proceeding along a 'ail' (ridge) towards the jungle of village Tablabari. According to learned Additional Sessions Judge the deceased was last seen by these two witnesses before he met a homicidal death. It is, therefore, necessary to scrutinize the evidence of these two witnesses. 21. PW 9 Sonatar. Tanti deposed about this circumstance in the following words: "...... On that day in the morning I was working in a field as a paid labourer (Miui') at that time I found accused Jahar being accompanied by another person were proceeding towards East through the 'Ail' of paddy lands. On the eastern side of the land where I was working there were tilla land, jungle and thereafter there is a bund. After one and half hour I heard a hue and cry and went to the eastern side of my land following other people I went and found the dead body of the person who proceeded with Jahar through 'Ail' land when I was working in the field." 22. During cross-examination it was elicited from him that on that day he was working in the field of Sanjit Deb Barma and that his house is situate at a distance of about 2/3 miles. The evidence of the Investigating Officer shows that during interrogation of the appellant, the latter disclosed that a person having the surname 'Tanti' saw him going with the deceased and on the. basis of that statement he examined this witness on 25.6.1993. 23. The evidence of the Investigating Officer shows that during interrogation of the appellant, the latter disclosed that a person having the surname 'Tanti' saw him going with the deceased and on the. basis of that statement he examined this witness on 25.6.1993. 23. PW 12 Shri Bimal Chandra Rudra Paul is the other witness who claimed to have seen the deceased proceeding with another person, deposed that on the date of occurrence in the morning while he was proceeding to the field he met Joykrishna near the Gramin Bank at Chhebri. According to him while he was cutting paddy from his field he found the deceased and another person proceeding towards East along the ail of his land. His evidence does not in any manner indicate that at that time PW 9 was also working in the field and he could see the deceased going along with the appellant. This is important because during cross-examination he stated that at that time he saw no other cultivator present at the adjoining field. His categorical statement in verbatim words is "At that tune while I was cutting paddy no other cultivator was present in the adjoining paddy field. So far my sight goes I found no other person while I was cutting paddy". His evidence, therefore, contradicts the evidence of PW 9 who claims to have seen the deceased proceeding along the ail (ridge) of his paddy land. So, how this circumstance is proved, is not at all clear to us. 24. The third circumstance relied on by the learned Additional Sessions Judge is that the appellant was fond of money as disclosed by PW 13. We are of the view that this is not at all a circumstance. PW 13 practically said nothing. There is nothing in the record to show that the appellant could do any harm to any one for money. 25. The fourth circumstance relied on by the learned Additional Sessions Judge is that PW 3 Ajit Deb Barma heard the cry coming from the jungle and that he saw someone striking blows on the person of another. Learned Public Prosecutor also laid much stress on the evidence of this PW 3. It is, therefore, necessary to examine the evidence of PW 3 Ajit Deb Barma. Learned Public Prosecutor also laid much stress on the evidence of this PW 3. It is, therefore, necessary to examine the evidence of PW 3 Ajit Deb Barma. This witness deposed that on the date of occurrence at about 8 AM when he was ploughing his land he suddenly heard the alarm "save me, save me, I am being killed". According to him on hearing this cry he went to his house which is situate on a tilla land and thereform he looked towards the jungle when he found through the three plants that one person was causing hurt to another person by means of a sharp cutting weapon. According to him that place is at a distance of about one/one and half kani of his place and on seeing this he raised alarm when Ramabrata and Rajendra came to his house and then he disclosed to them what he had seen. He further deposed that Ramabrata also looked towards the jungle and found one person causing injuries to another person but this Ramabrata has not been examined in this case. Apart from this it is an acceptable story that 2/3 persons seeing one person striking blow on the person of another remained silent without taking any step to save the life of another. The witnesses stated that, that place is at a distance of about one/one and half kani on land from their house ie they witnessed the occurrence at a distance of about 100/150 cubits. Apart from that it is most interesting that these three people were waiting until some villagers came there and encircled the jungle. The witness further stated that after encircling the jungle they found the appellant lying on the ground near the bund of the chhara about half a kani away from the place where the deceased was lying. It is also quite apparent from his evidence that villagers came after hearing his cries and thereafter they encircled the jungle. PW 4 has stated in his cross-examination that after hearing the cries the people assembled within half an hour and thereafter they encircled the jungle. 26. The question then arises is, is it probable that a murderer will wait for such length of time after committing the murder. PW 4 has stated in his cross-examination that after hearing the cries the people assembled within half an hour and thereafter they encircled the jungle. 26. The question then arises is, is it probable that a murderer will wait for such length of time after committing the murder. While some witnesses stated that the appellant was found lying on the ground, some stated mat he was sleeping whereas PW 2 stated that was hiding himself. 27. In view of the conflicting version of the witnesses and the probability of the appellant's remaining there after committing such heinous crime, we are of the view that it is not at all acceptable mat the appellant remained inside the jungle for over half an hour after committing such a heinous crime. This finding also disposed of die fifth circumstance relied on by the learned Additional Sessions Judge. 28. The sixth circumstance relied on by die learned Additional Sessions Judge is that one Ganjee and one Shirt were found at a certain distance from the place where the appellant was found lying. It was observed by learned Additional Sessions Judge that those Ganjee and Shirt were stained with blood but those were washed. There is no evidence to show mat those wearing apparels contained blood. That apart those wearing apparels were not chemically examined to ascertain that those actually contained human blood. 29. The seventh circumstance is that the dead body of Joykrishna Das was found lying with multiple cut injuries. It is not disputed that the deceased had a number of cut injuries on his person and mat he died on account of the injuries he sustained on his person. 30. Learned Additional Sessions Judge made a finding that the evidence of PW 3 being supported by other witnesses it can be considered as direct evidence in this case. We are really at a loss to understand how, in view of all the improbabilities we have shown above, learned Additional Sessions Judge could make such an observation that the evidence of PW 3 could be considered as direct evidence. 31. We are really at a loss to understand how, in view of all the improbabilities we have shown above, learned Additional Sessions Judge could make such an observation that the evidence of PW 3 could be considered as direct evidence. 31. It is found from the evidence of PW 3 that as soon as he saw the miscreant striking blows on the person of the deceased by means of some sharp cutting weapon, he raised cries and on hearing his cries two persons, namely, Ramabrata and Rajendra came to his house and thereafter they also raised cries and on hearing their cries the villagers came and thereafter they encircled the jungle. Is it a probable story that after hearing their cries when so many villagers came there the appellant would lie on the ground or wait for them until the jungle was encircled. As already stated, Ramabrata has not been examined in this case and the prosecution also did not assign any reason as to why he was not examined. Learned Public Prosecutor has, however, argued that even though Ramabrata has not been examined, the evidence of PW 3 clearly indicates mat the appellant was guilty for commission of the offence. In our opinion, in view of the discussion of the evidence and for the reasons stated above, the submission made by the learned Public Prosecutor does not seen to have much force. After going through the evidence we find that there are serious and inherent improbabilities in the prosecution case. 32. In conclusion we find that the learned trial Court overlooked the inherent improbabilities and infirmities of the prosecution case as discussed above. We are of firm opinion on consideration of the evidence on record that the conviction and sentence passed against the appellant are not sustainable in law and accordingly those are set aside. 33. The appeal is allowed. The appellant who is in jail shall be set at liberty forthwith, unless he is wanted in connection with any other case.