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2006 DIGILAW 1035 (GAU)

Benulal Debnath v. State of Tripura

2006-11-23

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. Two appellants in this criminal appeal are challenging the judgment-dated 10.9.1998 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Sessions Trial No. 13 (ST/D) of 1998 convicting them under Section 201 IPC and sentencing the appellant No. 1 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/-, in default to suffer further rigorous imprisonment for three months, and also sentencing the appellant No. 2 to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for six months. 2. I have heard Mr. A.C. Bhowmik, learned Counsel for the appellants and Mr. A. Ghosh, learned P.P. In-charge for the respondents. Both the appellant were charged under Section 302/201 IPC. The case of the prosecution is that the deceased Jyoti Rani Debnath aged about 32 years was given in marriage with the appellant No. 1 and from their marriage, two daughters and one son were born to them. Two years before the death of the deceased, the appellant No. 1 and his mother-in-law used to treat the deceased cruelly and used to beat her. On 29.1.1995, at about 7/7.30 p.m., the sister in law of the deceased came to the informant and informed him that his sister had consumed poison and was lying at Belonia hospital. The informant (P.W. 1) was stated to have at once gone to Belonia hospital where he learnt that his sister was already dead. The informant was also stated to have noticed severe injury marks on the right eye and the right side of the neck of the deceased whereupon he came to suspect that his sister was murdered by the appellant No. 1 and his brother Uttam Debnath. On the basis of the FIR lodged by the informant, the Belonia Police Station registered case No. 10/95 under Section 302 read with Section 34 IPC and investigated the case. 3. In the course of the investigation of the case, the IO held inquest over the dead body of the deceased, arranged post mortem examination of the dead body, examined some material witnesses, seized the viscera collected by the Autopsy Surgeon, which was sent to the Central Forensic Science Laboratory (CFSL), Calcutta to determine if any poison was found in the viscera. Though the medical officer conducting the post mortem examination could not give any definite finding about the cause of death, the CFSL in its report mentioned that there was no poison in the viscera examined by them. Thus, having found a prima facie case, the I.O. charge-sheeted the appellant No. 1, the said Uttam Debnath and the parents in law of the deceased, namely, Brajalal Debnath and Hemalata Debnath. Since the arrest could not be effected against the said Uttam Debnath, he was ultimately declared as an absconder by the court. 4. The learned Sub-Divisional Judicial Magistrate, Belonia took the cognizance of the offence and committed the case to the Court of Sessions for trial. The learned Sessions Judge, to whom the case was ultimately endorsed, framed the charges against the said Brajalal Debnath, the appellant No. 1 and Smt. Hemalata Debnath, the appellant No. 2 under Section 302, 201 & 498A IPC, to which they all pleaded not guilty and claimed to be tried. 5. It may be noted that during the pendency of the trial, the said Brajalal Debnath died and, as such, the case in so far as this accused is concerned came to be abated. 6. During the trial, the prosecution examined as many as fifteen witnesses and exhibited a number of documents and articles to substantiate the charges levelled against the appellant. The defence taken by the appellants appeared to be that of total denial. On the conclusion of the trial, the trial court did not find substantial evidence against the appellants for the offence punishable under Section 302 IPC and accordingly, acquitted them. The trial court, however, found two appellants guilty of the offence punishable under Section 201 IPC and thereupon passed the impugned judgment of conviction and sentence. In returning the verdict of conviction against the appellant under Section 201 IPC, the trial Court recorded the following findings: In the evidence of P.Ws. 1 & 5 I find that Benulal was present in the hospital when Jyoti Rani was taken to hospital. The circumstances leading me to the only hypothesis of that of murder of Jyoti Rani by accused Uttam Debnath, the brother of accused Benulal by throttling and to get rid of the charge of murder the other accused persons in a concerted manner administered or poured some poison on the mouth of Jyoti Rani to screen the evidence of murder. The circumstances leading me to the only hypothesis of that of murder of Jyoti Rani by accused Uttam Debnath, the brother of accused Benulal by throttling and to get rid of the charge of murder the other accused persons in a concerted manner administered or poured some poison on the mouth of Jyoti Rani to screen the evidence of murder. The evidence on record is not sufficient to held accused Benulal and Hemalata for the charge of murder but it is crystal clear and amply proved that these accused persons along with accused Brajalal (since deceased) and the absconder accused Uttam Debnath in a concerted manner tried to cause disappearance of evidence of murder with the intention of screening the principal offender Uttam Debnath. Accordingly, on the basis of the above appreciation of evidence I hold that the charge under Section 302 of IPC framed against accused Benulal Debnath and Hemalata Debnath cannot sustain but it is proved that Jyoti Rani was murdered by throttling and hence the accused persons namely Benulal Debnath and Hemalata Debnath are acquitted from the charge under Section 302 of IPC. It is proved that the accused persons Benulal Debnath and Hemalata Debnath knowing or having reason to believe that Jyoti Rani was murdered tried to cause disappearance of evidence by putting poison in her mouth with the intention of screening the offender and so they committed an offence punishable under Section 201 IPC. Hence the charge under Section201 of IPC is proved. The accused persons are accordingly convicted. 7. Before proceeding further, it would be appropriate to refer to and reproduce hereunder the provisions of Section 201 IPC. 201. Causing disappearance of evidence of offence or giving false information to screen offender--whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. If a capital offence-shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If punishable with imprisonment for life--and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; If punishable with less than ten years' imprisonment and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. 8. The Apex Court in Roshan Lal v. State of Punjab 1965 CriLJ 426 while reiterating the legal position, held that the first paragraph of Section 201 lays down the essential ingredients of the offence under Section 201 IPC. It must be proved firstly that an offence has been committed. Secondly, the accused must know or have reason to believe that the offence has been committed. Thirdly, the accused must either cause any evidence of the commission of that offence to disappear or give any information respecting the offence which he knows or believes to be false. Fourthly, the accused must have acted with the intention of screening the offender from legal punishment. In other words, it must be proved, among others, that an offence, the evidence of which the accused is charged with causing to disappear, has actually been committed and that the accused knew, or had information sufficiently to lead him to believe that the offence has been committed. For example, mere removal of dead body is not sufficient; it must further be proved that removal was made with intention of screening the offender from legal penalty. The accused must be proved to have actively participated in the matter of causing disappearance of the evidence. Therefore, unless the accused is proved to have had knowledge of the offence, Section 201 IPC is not attracted. The accused must be proved to have actively participated in the matter of causing disappearance of the evidence. Therefore, unless the accused is proved to have had knowledge of the offence, Section 201 IPC is not attracted. It is not proper to presume knowledge of offence only because the accused is the brother of the main offender See Nathu and Anr. v. State of Uttar Pradesh 1979 CriLJ 1066. There must be direct and legal evidence to prove the charge under Section 201 IPC. It may be that the identity of the person, who committed the main offence is not established in evidence, there must be material to indicate that the accused knows who the main offender was when the accused did the act of causing disappearance of evidence or giving false information regarding an offence. It is against the backdrop of the aforesaid legal principle that I propose to examine the evidence adduced by the prosecution. 9. Undoubtedly there is no direct evidence against any of the appellants. The only question to be determined is whether there is circumstantial evidence linking the appellants with the offence charged against them. P.W. 1 in his evidence claimed that on the date of incident, the sister-in-law of the deceased, namely Jyoti Rani Debnath (P.W. 4) came to their house and informed them that the deceased consumed poison and that she was taken to Belonia hospital. On reaching the hospital, according to this witness, he found the dead body lying on the table facing downwards and on moving the dead body, he found a swelling bruise mark on fore-head of the deceased and a radish mark around her neck, which caused him to suspect that his sister might have been murdered whereupon he and his friends lodged the FIR with the Belonia police station. He also gave a number of instances during the life time of the deceased in which the deceased was ill-treated or treated cruelly by her husband and her-in-laws. He also gave a number of instances during the life time of the deceased in which the deceased was ill-treated or treated cruelly by her husband and her-in-laws. He further deposed that a big size bottle allegedly containing the poison consumed by the deceased was given to the darogababu by the appellant No. 2 P.W. 5 in her deposition testified that on the date of the incident, she was walking in the paddy field and when she heard the cry of her mother-in-law, she rushed to her house and on reaching the house, she found the said Uttam Debnath carrying the Jyoti Rani on his shoulder towards Belonia hospital. She also deposed to the effect that she did not notice any injury on the person of the deceased and that her mother in law (appellant No. 2), mentioned that the deceased consumed poison. 10. P.W. 2, who is the younger sister of the deceased, deposed that she found swelling bruise mark over the right eye of her sister and reddish mark on her throat whereupon she suspected that the deceased might have been killed which prompted them to report the matter to the police. She also testified to the effect that her sister had been subjected to mal-treatment in her matrimonial home. Then comes the statement of P.W. 3, who is the tenant of a house situated adjacent to the house of the appellants. It is her deposition that on the fateful day, she had a talk with the deceased and she was invited by her to prepare her spices and that in the evening, she visited the house of the deceased for an iron pot to prepare fried rice for her. It is her further deposition that she found the appellant No. 1 and the sister-in-law of the deceased in the kitchen and when she enquired about the deceased, they told her that she was inside the room and was keeping her child to bed. She also testified that after a while she heard cry towards their house and rushed there where she found the deceased lying in the courtyard and rolling. She also testified that after a while she heard cry towards their house and rushed there where she found the deceased lying in the courtyard and rolling. According to this witness, she was told by the inmates of the house that the deceased might have consumed poison and that she also got smell of poison in the mouth of the deceased and that they tried to put tamarind water in her mouth but her teeth were tight and congested and could not be open, as such, they had put on her mouth. It is her further testimony that at that time, the said Uttam Debnath rushed in and cried that they were in trouble and then carried the deceased on his shoulder towards the hospital. This witness further deposed that she subsequently heard that the deceased had died and she also found a swelling mark above the right eye of the deceased. It is interesting to note that this witness categorically mentioned in her cross-examination that the appellant No. 1 and the said Uttam Debnath were not present at home when she went to collect iron pot from the house of the deceased and the shop of the appellant No. 1 was situated at a distance of about a quarter mile away from his house. 11. P.W. 4 in her cross-examination disclosed that there was good relation between the deceased and the P.W. 5 and between the deceased and the family members of her in laws. P.W. 6 also testified that the deceased had good relation with the members of matrimonial house. This witness also deposed that she found the deceased screaming in the courtyard and that P.W. 3 was trying to put tamarind water in her mouth, but her teeth were congested and after a moment, the said Uttam Debnath carried her towards hospital. P.W. 7 in his evidence testified that he found swelling injury over the right eye of the deceased and a reddish mark on her throat and that he suspected that it might not be a case of poison, but a case of assault and accordingly advised that the police be informed. P.W. 9 supported the statements of P.W. 6. Then comes the evidence of medical officer conducted the post mortem on the deceased. P.W. 9 supported the statements of P.W. 6. Then comes the evidence of medical officer conducted the post mortem on the deceased. According to this medical witness, the deceased died due to cardio respiratory failure as a result of poisoning, which is subject to confirmation by the chemical analysis of viscera so preserved. On the other hand, he also deposed that there were sign of homicidal wound on the right eye lid of the deceased and homicidal throttling signs on her neck. 12. On careful examination of the deposition of the aforesaid witnesses, no evidence is forthcoming suggesting even remotely that the deceased was physically assaulted by anyone including the appellants. On the contrary, the evidence of P.W. 3 categorically ruled out the presence of the appellant No. 1 at the place of occurrence at the time of incident. There is also no whisper of evidence to show that the appellant No. 2 knew that the deceased was murdered by anybody. As noted earlier, even though the identity of the person who murdered the deceased could not be established, yet there must be material to indicate that the appellants knew who the main offender was when they did the act of causing disappearance of evidence or giving false information regarding the offence. The production of the bottle containing the poison allegedly consumed by the deceased by the appellant No. 2 cannot raise any presumption that the same was done to remove the evidence of homicidal throttling or to screen the offender from the legal punishment. The fact that the appellant No. 2 stated that the deceased might have consumed poison, without anything more, cannot be sufficient to hold that she knew the culprits who throttled to death of the deceased and that such false evidence was given by her either to cause disappearance of the evidence of murder or with the intention of screening the offender from the legal punishment. Merely because the appellant No. 2 happens to be mother of the said Uttam Debnath, it could not be presumed as a matter of legal proof that she must be deemed to have the knowledge of murder of the deceased by the said Uttam Debnath. 13. The prosecution must show direct and legal evidence to prove the charge under Section 201. 13. The prosecution must show direct and legal evidence to prove the charge under Section 201. In the view that I have taken, the findings of the trial Court that the evidence on record proved that the appellants along the accused Brajalal (since deceased) and absconder accused Uttam Debnath in concerted manner tried to cause disappearance of evidence of murder with intention of screening of principle offender Uttam Debnath, are apparently perverse and are based on surmises, conjecture or presumption. In any case, in view of the contradictory statements of the prosecution witnesses in the manner in which the deceased died, there is no clinching or conclusive evidence to establish that the cause of the death of the deceased was homicidal in nature. As noted earlier, for proving the offence of Section 201 IPC, it must be established by the prosecution that an offence of murder has been committed and further that the appellants knew or had reason to believe that such offence was committed. When there is no sufficient evidence to prove the first two essential ingredients of Section 201 IPC, the question of establishing the remaining ingredients cannot also arise. No other circumstantial evidence could be pointed out by the learned P. P. In-charge to indicate that the appellants have committed offence of Section 201 IPC. 14. For the reasons stated in the foregoing the impugned judgment of conviction and sentence cannot be sustained in law and is, accordingly, set aside. The appellants are acquitted and they need not surrender to their bail bond. The appeal is, therefore, allowed. Appeal allowed.