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2000 DIGILAW 162 (GAU)

State of Tripura v. Bijoy Gowala

2000-04-28

P.G.AGARWAL

body2000
This appeal by the State of Tripura is directed against the judgment and order passed by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Trial No.7 (NT/K) 1994 on 30.11.1994 acquitting the respondents from the charges under section 302 IPC. 2. The accused Shri Bijoy Gowala and Shri Malin Tantubaya were tried for the offence under section 302 read with section 34 IPC. The prosecution allegation,' in brief, is that on 24.5.1991 at about 8 PM while the deceased Hariprasad Gowala along with Shri Arjun Bhuiya were returning home from grocery shop, the two accused persons who were waiting on the road, assaulted Hariprasad Gowala and Shri Arjun Bhuiya with lathies. Arjun, however, managed to escape by running to the jungle but Hariprasad sustained injury on his head and fell down at the spot. Later on, the villagers brought Hariprasad to his house, but he ( succumbed to the injuries at night. 3. During trial, the prosecution examined as many as 13 witnesses. The learned Sessions Judge by the impugned judgment and order acquitted the accused persons and hence the present appeal. 4. Before proceeding to consider the evidence and materials on record, it will be useful to consider the ambit of power of the High Court in an appeal against the order of acquittal. Upon considering the various decisions of the Apex Court and other High Court, this Court had observed that the High Court should give appropriate weight and consideration to the following aspects : (i) the views of the trial Court as to the credibility of the witnesses should be properly weighed and considered; (ii) the presumption of innocence in favour of the accused in never weakened by the fact that he has been acquitted at the trial; (iii) the right of the acquitted persons to the benefit of reasonable doubt should not be denied on the score that they have been acquitted and are no longer accused; (iv) the appellate Court should be slow in disturbing the findings of fact reached by the trial Judge who had the advantage by personally seeing the witnesses; and (v) when the High Court does not agree with the view of the trial Court' yet reaches the conclusion that the view expressed by the trial Court is reasonably possible, the same should not be disturbed. 5. 5. In two recent decisions, Banwari Ram & others vs. State of UP, (1998) 9 SCC 3 and K. Ramakrishnan Unnithan, vs. State of Kerala, (1999) 3 SCC 309 ? the Apex Court reiterated that the powers of the High Court are not distinct in nature in dealing with an appeal against the order of acquittal. The High Court has full power to reappreciate the evidence and to arrive at a different conclusion, but no interference is called for only because another view is possible. But if the reasons given by the trial Court are not sustainable and the appreciation of evidence is per se bad, there will be no limitation on the power of the High Court to set aside the order of acquittal. 6. In the present case, so far the factum of death of Hariprasad as a result of injury sustained by him on the date of occurrence is concerned, the same stands fully established in view of the overwhelming evidence on record. The learned trial Court also held that the deceased was assaulted on the date of occurrence at Murticherra Tea Estate and he sustained head injuries and later on succumbed to the injuries. PW 10 is Dr. Bapi Sen who held the post mortem over the dead body. The doctor found as follows : "1. There was haemotoma extending from right temporal region, hole of right cheek to right side of back of the neck. 2. Haemotoma 2" x 1" on right elbow. Thereafter I dissected the dead body and after dissection I found -(1) There was fracture of right temporal bone of scalp. (2) There was laceration of membrane covering the right temporal lope of brain. (3) Laceration of right temporal lobe of brain with intra celebral haemorrhage. Other organs were found healthy. Details of injury-Haemotoma extending from right temporal region of head, whole of right cheek to right side of the back of neck. Fracture of right temporal bone of scalp with laceration of membranes covering the right temporal lobe of brain with laceration of temporal lobe of brain with intra celebral haemorrhage. Death in my opinion was due to comma following head injury." 7. PW 6, Shri Kunja Behari Koiri and others found Hariprasad lying in injured condition at the place of occurrence. Fracture of right temporal bone of scalp with laceration of membranes covering the right temporal lobe of brain with laceration of temporal lobe of brain with intra celebral haemorrhage. Death in my opinion was due to comma following head injury." 7. PW 6, Shri Kunja Behari Koiri and others found Hariprasad lying in injured condition at the place of occurrence. PW 6 informed the family members of the deceased and thereafter, the wife and son of the deceased and others went to the place of occurrence and brought home the injured. The learned trial Judge also held that it is a case of homicide and the moot point for consideration is who killed the deceased. 8. As regards the participation of the accused persons in the above incident, the prosecution has relied on the evidence of the solitary eye witness, Shri Arjun Bhuiya, PW 5 and the dying declaration. Let us examine the evidence of PW 5. This witness had deposed that on the date of occurrence at about 8 PM he went to the grocery shop of Sheodhan Koiri to purchase some grocery items'. There he found Hariprasad Gowala, the deceased. After completing their purchases, both of them proceeded towards their house and while they were returning they saw a bullock cart standing under the banian tree by the side of the road and the two accused persons were sitting in the said bullock cart with lathies in their hands. The accused Bijoy Gowala asked them to stop and when they stopped, they started beating them. In order to save himself, PW 5 went towards the jungle and spent the night inside the jungle. On the following day, he came out and after purchasing certain medicines he returned home and then he was informed about the death of Hariprasad. In the impugned judgment, the learned trial Judge has reproduced the entire evidence of PW 5. The learned trial Judge was not sure whether PW 5 recognised the accused persons without any source of light as the incident took place at about 8 PM and that too under the shed of banian tree. The learned trial Court also found fault with the subsequent conduct of this witness in running to the jungle and taking shelter. The learned trial Judge was not sure whether PW 5 recognised the accused persons without any source of light as the incident took place at about 8 PM and that too under the shed of banian tree. The learned trial Court also found fault with the subsequent conduct of this witness in running to the jungle and taking shelter. So far the recognition of the accused persons is concerned, PW 5 has categorically stated that he saw the two accused persons there from a distance of 2 to 3 cubits and he knew the two accused persons from before. It may be mentioned here that there was no cross-examination of this witness on the point of his identification or recognition of the accused persons. But still the learned trial Judge in his wisdom raised doubts about the recognition of the accused persons by this eye witness mainly on the ground that there were two trees near the place of occurrence and it was night. Even during night, a known person may be recognised if seen from a distance of 2 to 3 ft. There cannot be any doubt about the recognition. In the instant case, the accused persons asked this eye witness (PW 5) and the deceased to stop and thereafter, they assaulted them with lathies which implies that the accused persons were not far off from the witness. The learned trial Judge has observed If he (PW 5) had really recognised the accused persons then it was perhaps natural on his part to report about the occurrence to the adjoining shop owners or even he could run to the Hanuman Temple." When a person is faced with murderous assault, how he re-acts cannot be predicted. Different person re-act in different manner. PW 5 is an unsophisticated illiterate labourer and when he was assaulted, he took to his heels and saved himself by hiding in the jungle. It was natural reaction and no fault can be found with the conduct of PW 5. The question of recognition or non-recognition of the assailants is in no way concerned with the subsequent conduct of this witness. The fact that there were 10/15 persons in the Hanuman Temple witnessing TV was known to PW 5, but it cannot be presumed that this witness PW 5 also know that there were many persons assembled in the Hanuman Temple. The fact that there were 10/15 persons in the Hanuman Temple witnessing TV was known to PW 5, but it cannot be presumed that this witness PW 5 also know that there were many persons assembled in the Hanuman Temple. It is further stated that in all probabilities this witness should have atleast gone to the house of the deceased and reported the incident to the family members of the deceased. The witness stated that he got so much frightened that he did not come out of the jungle during the whole night. Moreover, on his way to the jungle he did enter into a house, but found no one in the said house. On the mere fact that instead of reporting the matter to the family members of the deceased, PW 5 ran to the jungle, the learned trial Judge was convinced that this witness was not deposing the truth. In a murder trial, an eye witness cannot be disbelieved on he basis of such imaginary improbabilities or judging the conduct of eye witness through one's own angle. The learned trial judge discarded the evidence of this eye witness by observing "Therefore, the subsequent conduct of this witness as deposed by him does not at all convince this Court that what he deposed is true. There is no evidence on record that this witness has at any time subsequently to the occurrence disclosed the name of the accused to anyone. Even his evidence does not show that on the next day when Kunja Behari reported to him about the death of his friend Hariprasad, this witness disclosed the names of the assailants to him." 9. I have perused the entire evidence of PW 5 and found that there is no cross examination of PW 5 as to whether he reported the name of any of the assailants to any witness including PW 6, Shri Kunja Behari Koiri. In absence of any evidence or cross-examination on this point, it is not understandable how the Court could observe in the above line. There is no contradiction in the statement of PW 5 as regards the reporting of the names of the assailants to the I/O. Except giving some suggestion, not a single material contradiction has been suggested to this witness. There is no contradiction in the statement of PW 5 as regards the reporting of the names of the assailants to the I/O. Except giving some suggestion, not a single material contradiction has been suggested to this witness. The evidence of eye witness (PW 5) found full corroboration and support as regards the place of occurrence as the deceased was found lying at the very place where the deceased was assaulted according to PW 5. The medical evidence on record also supports the statement of PW 5 as regards the weapon of assault. The fact that this witness was with the deceased at the time of the occurrence or just prior to the occurrence is fully supported by PW 8, the shop keeper from whose shop this witness and the deceased purchased their merchandise. PW 8, Shri Sachindra Bowri has categorically stated that on the night of occurrence at about 8 PM the deceased and Shri Arjun Bhuiya had purchased certain articles from his shop and thereafter, both of them left together. The learned trial Judge has not discussed his aspect of the evidence which lends credence to the evidence of PW 5. On the contrary, there is mis-reading of the evidence. It is stated that the prosecution has not examined Shri Sachindra Bowri, the shop-keeper. The learned trial Judge found fault with the non-examination of the nephew of PW 3, the another shop-keeper, but did not consider the evidence of material witness. 10. On perusal of the evidence of PW 5 and in view of the foregoing discussion, I find that the learned trial Judge was on wrong footing in discarding the reliable testimony of the eye witness on some non-existing grounds. 11. Besides the testimony of eye witness in this case, there is dying declaration of the deceased implicating the accused persons. PW 6, Shri Kunja Behari Koiri has stated that on the night of occurrence at about 8 PM, while he was returning from the shop of one Mantab Kaluar after purchasing some Bidi, he saw Mithailal Koiri and Ramdhan Koiri standing on the road. On the road side, he saw a bag lying on the ground and he also saw Hariprasad lying in injured condition. When he approached Hariprasad, he started crying saying 'Bachao Bachao' and requested him to take him to his house and save his life. On the road side, he saw a bag lying on the ground and he also saw Hariprasad lying in injured condition. When he approached Hariprasad, he started crying saying 'Bachao Bachao' and requested him to take him to his house and save his life. There was bleeding from his nose and on being asked Hariprasad further told that Bijoy Gowala and Malin Tantubaya had assaulted him. After asking Mithailal to remain there, this witness ran to the house of Hariprasad and informed the matter. He also informed that Hariprasad had been assaulted by Bijoy Gowala and Malin Tantubaya. The family members and the neighbours of the deceased came with him and they took the injured to his house where he was nursed by the family members. PW 6, thereafter; returned home and on the next day he was informed that Hariprasad has expired during the night. 12. In this case, Mithailal Koiri has not been examined but the fact that said Mithailal saw the deceased lying injured on the road is corroborated by PW 3, Shri Manila Koiri. 13. PW 2, Smti Sarati Goala is the wife of the deceased. PW7, Smti Sabita Goala is the daughter of the deceased and PW 9, Shri Gakul Goala is the son of the deceased. They have deposed that the deceased went out to make some purchase and at about 9 O'clock in the night PW 6 came to their house and informed about the incident and also the fact that Hariprasad has been assaulted by Shri Bijoy Gowala and Malin Tantubaya. They brought Hariprasad in injured condition in their house and gave him water etc. Hariprasad after regaining consciousness on their asking told them that he has been assaulted by two accused persons. Thus, I find that there are two sets of dying declaration, one before PW 6, Kunja Behari Koiri at the place of occurrence and the other before the wife and children at his residence. The dying declaration before PW 6 was disbelieved by the learned trial Judge for non-examination of the other witness Mithailal and because of the statement of PW 6 that after reporting the name of the assailants, the injured became unconscious. The dying declaration before PW 6 was disbelieved by the learned trial Judge for non-examination of the other witness Mithailal and because of the statement of PW 6 that after reporting the name of the assailants, the injured became unconscious. According to the learned trial Judge, there is an inherent suspicion as to the truth of the evidence because it is difficult to believe that the victim lost his sense only after he was seen by the witness and disclosed the names of the assailants. In this case, the incident took place at about 8 PM and the injured died at 2 AM that is after six hours of the occurrence. The witness has also stated that after the initial nursing Hariprasad had regained consciousness and had reported the names of the assailants before the family members. So, there can not be any question of inherent suspicion. The learned trial Judge did not discuss the dying declaration made by the deceased in presence of PW 2, PW 7 and PW 9. There is not a single word in the entire judgment as to why the dying declaration made before the witnesses was not acted upon or not relied. A criminal trial cannot be disposed of in such a slip shod manner. So far the declaration made before PW 6 is concerned, the Court did not rely on the same for the following reasons : "Firstly, the witness has not stated the exact words used by the injured. Secondly, the other two persons namely Mithailal and Ramdhan who were with him have not been produced as witness in the case and thirdly, the occurrence took place at about 8 PM or may be after that and the place of occurrence was just below a banian tree and very close to that place there was another banian tree also and further there is no clear evidence that there was sufficient light so as to make it possible to the victim to recognise the assailants. Moreover, there is corroborative evidence that on that night it was raining heavily at Murthicherra and as such the night must have been very dark. Therefore, this is also quite doubtful as to whether the victim himself could have at all recognised the assailants. Moreover, there is corroborative evidence that on that night it was raining heavily at Murthicherra and as such the night must have been very dark. Therefore, this is also quite doubtful as to whether the victim himself could have at all recognised the assailants. Since a dying declaration is a very vital piece of evidence it is the settled law that the exact words used by the deceased should b£ brought on the record because otherwise there remains a scope for improvement of the statement or changing it in any manner by the interested ones. Now from the medical evidence and also from the oral evidence of the witnesses, it is proved that the deceased was seriously injured the attack and in that position when the deceased was left at the place of occurrence after such assault it is also doubtful whether he was in a position to give that statement to anyone much after the occurrence." 14. In absence of any evidence or any meaningful cross-examination that there was sufficiency or insufficiency of light,.! am constrained to hold that the learned trial Judge erred in presuming that the night must have been dark and the victim could not have recognised the assailants. There is no scope for such presumption or inference. Moreover, the doctor who held the post mortem of the dead body was examined by the prosecution, but for the reasons best known to them the defence did not cross-examine him to show that the injured was not in a position to make any dying declaration or that the injury was such that the victim would go in comma immediately. The defence had the opportunity to establish the same, but they remained silent. But the learned trial Judge in his wisdom observed that in view of the nature of injuries it is doubtful whether he (deceased) was in a position to give the statement to anyone much after the occurrence, The learned trial Judge was oblivious of the fact that the deceased survived for long six hours after the incident. The learned trial Judge also found fault for the alleged negligence on the part of the witnesses including the family members of the deceased in not arranging immediate medical help, although there is evidence on record to show that due to heavy rains during night, no medical help could be arranged. 15. The learned trial Judge also found fault for the alleged negligence on the part of the witnesses including the family members of the deceased in not arranging immediate medical help, although there is evidence on record to show that due to heavy rains during night, no medical help could be arranged. 15. The four witnesses as stated above have deposed that the deceased named the two accused persons as the persons who assaulted him. There was no cross examination on this point, but still the learned trial Judge held that as the exact words spoken by the deceased were not given, the dying declaration cannot be relied upon. On perusal of the entire judgment, I find that the learned Sessions Judge has relied on conjectures based on his personal assumption as to how a witness or person should have acted in a given circumstances and as the witness has not behaved in a particular manner it cannot be relied upon. I find that the entire exercise was misconceived and the order of acquittal recorded is against the weight of evidence on record. The evidence of the eye witness, PW 5 is clinching. It is natural, true and reliable. The evidence of the eye witness that the two accused persons assaulted the deceased is corroborated by the oral dying declaration made before PW 6, PW 2, PW 7 and PW 8. 16. In the light of the above, I hold that the findings of the learned trial Judge are perverse and not based on evidence on record. This is not a case of another view - there was no scope for giving benefit of doubt to the accused persons. It has been fully established that the two accused persons killed the deceased on the night of occurrence. There was also motive for the killing. The evidence on record shows that prior to the incident the deceased had warned/cautioned the accused persons not to loiter at odd hours in their locality. It seems that the two accused persons retorted by killing the deceased. 17. In the result, the appeal is allowed. The impugned order of acquittal is set aside. The accused Shri Bijoy Gowala and Shri Malin Tantubaya are convicted of the offence under section 302 IPC read with section 34 IPC and they are sentenced to imprisonment for life. It seems that the two accused persons retorted by killing the deceased. 17. In the result, the appeal is allowed. The impugned order of acquittal is set aside. The accused Shri Bijoy Gowala and Shri Malin Tantubaya are convicted of the offence under section 302 IPC read with section 34 IPC and they are sentenced to imprisonment for life. The accused persons shall be taken into custody immediately to serve out the sentence. 18. Send a copy of this order to the learned Sessions Judge, North Tripura, Kailashahar. Send down the records.