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2007 DIGILAW 739 (GAU)

Prasenjit Debbarma v. State of Tripura

2007-11-13

BROJENDRA PRASAD KATAKEY, MAIBAM B.K.SINGH

body2007
JUDGMENT Mutum B.K. Singh, J. 1. Heard Mr. P.K. Biswas, learned Counsel appearing for the appellants and Mr. D. Sarkar, learned Public Prosecutor for the State-respondent. 2. This appeal is directed against the judgment dated 06.08.2004 passed by the learned Additional Sessions Judge, Khowai, West Tripura, in Sessions Trial No. 21(WT/K)/2002, convicting and sentencing the appellants to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each, in default thereof, to suffer simple imprisonment for six months for the offence punishable under Section 302 read with Section 149 IPC and also to suffer rigorous imprisonment for 2 years and 3 months for the offences punishable under Section 148 and 447 IPC respectively. 3. Brief facts, which led to the trial of the appellants are that in a massacre which took place on 16.02.1997 at Gourangatilla School and nearby houses, 14(fourteen) people were killed and 7/8 others were injured. As per the First Information Report (FIR) marked Exbt- 1 lodged with the Officer In-charge, Kalyanpur P.S. by Sri Swapan Das (P.W. No. 1), on 16.02.1997 at about 10 a.m. 50/60 tribal youths set on fire the houses at Laxminarayanpur colony, the inhabitants took shelter at Gourangatilla School. At about 11 a.m. 6(six) tribal youths, one armed with a gun and others with bows and arrows indiscriminately fired upon the refusees, killing 14 persons and causing injuries to others as stated above. On receipt of the FIR, the police registered Kalyanpur P.S. Case No. 19/1997 under Sections 148, 447, 436, 326, 302, 153A IPC and 27 Arms Act and swung into action. P.W. No. 18 initiated the investigation immediately but concluded by the P.W. No. 19 submitting charge-sheet against 44 accused persons. Out of charge-sheeted accused persons, charges under Sections 148, 447, 326, 302 read with Section 149 IPC were framed against 32 accused persons and out of them, 28 accused persons were acquitted vide orders dated 01.07.2003 and 28.08.2003 passed under Section 323 of the Code of Criminal Procedure. Further trial was proceeded only as against the appellants, as 10 charge-sheeted accused persons were absconding during the trial. By the impugned judgment dated 06.08.2004, the learned trial court convicted the appellants and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. Further trial was proceeded only as against the appellants, as 10 charge-sheeted accused persons were absconding during the trial. By the impugned judgment dated 06.08.2004, the learned trial court convicted the appellants and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each, in default of payment thereof, to suffer simple imprisonment for 6 months for the offence punishable under Section 302read with 149 IPC. The appellants were also sentenced to suffer rigorous imprisonment for 2 years and 3 months for commission of the offence punishable under Section 148 and 447 IPC respectively. 4. Hence, the appeal. 5. That, during the course of trial, as many as 19 witnesses were examined and also exhibited 30 documents on behalf of the prosecution, 2(two) defence witnesses were produced and examined. 6. That, upon hearing the submission for both the sides, it appears that the point for determination involved in this case is whether the accused persons (appellants) together with others formed an unlawful assembly and in prosecution of the common object of such assembly, committed the offences of criminal trespass, grievous hurt to the villagers and murder of one Smti Gita Chakraborty and 13 others? 7. That, out of 19 prosecution witnesses, 8 witnesses) P.W. Nos. 2, 6, 8, 10, 11, 13, 14 & 15) were declared hostile, P.W. No. 12 could not be examined as he refused to say anything, P.W. Nos. 16 & 17 are the Doctors who had conducted the post mortem examinations on the dead bodies. P.W. Nos. 18 & 19 are the police officers who investigated and submitted the charge-sheet of the case. 8. That, it is well settled proposition of law that Court should be show in relying upon the statement of the hostile witnesses but can be relied upon to the extent of such statement which supports the prosecution version. In other words, the statement of hostile witness does not lose its credibility, the acceptable part may be accepted but the Court should look for corroboration. 9. That, in the case at hand, P.W. No. 2 stated that when he went to Gourangatilla School with Assam Rifles personnel, the extremists already left the place. Exbt.-3 is his previous statement recorded under Section 161 Cr.P.C., in which he has stated that he could identify the appellant No. 1 and two others amongst the miscreants. 9. That, in the case at hand, P.W. No. 2 stated that when he went to Gourangatilla School with Assam Rifles personnel, the extremists already left the place. Exbt.-3 is his previous statement recorded under Section 161 Cr.P.C., in which he has stated that he could identify the appellant No. 1 and two others amongst the miscreants. P.W. No. 6 deposed that in February, 1997, Laxminarayanpur Village was attacked by the extremists, on 16.2.1997 at about 10 a.m. extremists fired on the villagers, as a result of which 14 villagers were killed and that he could identify 4 other persons out of the miscreants. P.W. No. 8 deposed that he did not see the occurrence and could not say who were the miscreants. However, in his previous statement recorded under Section 161Cr.P.C. marked Exbt.-l1, he stated that he could recognize the appellant Nos. 1, 2 and two others amongst the extremists. P.W. No. 10, whose wife has been killed in the occurrence, deposed that he could identify 3 miscreants namely, Jagatsen Debbarma, Sabuj Debbarma and Mantu Debbarma. P.W. No. 11 deposed that on hearing the gun-shot, he along with his wife and children fled away from the place of occurrence and took shelter in the field. He could not identify any of the miscreants. However, in his previous statement marked Exbt. 13, he has stated that amongst the persons who had committed the incident, he recognized appellant No. 1 who was armed with gun and four others. P.W. Nos. 13, 14 and 15 had also stated that they could not identify any of the miscreants but in their previous statement marked Exbts.-14, 15 & 16, they had stated to the police that they could identify some of the miscreants including the appellant No. 2 10. That, on proper examination of the statement of the hostile witnesses, we are of the firm view that their statement supports the prosecution version that on 16.02.1997 the villagers of Laxminarayan were attacked at Gourangatilla School and nearby houses by a group of persons in which the appellant Nos. 1 & 2 were also the members. The above statement is also supported by the evidences of P.W. Nos. 1 & 9. 11. 1 & 2 were also the members. The above statement is also supported by the evidences of P.W. Nos. 1 & 9. 11. P.W. No. 1 Sri Swapan Das, the informant, whose mother, sister and brother were killed along with other villagers, deposed that on 16.02.1997 at about 11 a.m. a group of extremists attacked the Gourangatilla School wherein they were residing and as a result of such attack, his mother, sister brother and other villagers were killed and some others were also injured. He could identify three persons namely, Satyajit Debbarma, Jagatsen Debbarma and Mantu Debbarma as the members of the miscreants group. He admitted that he lodged the ejahar marked Exbt.-1 in writing in which he had mentioned the names of the appellant No. 1 and five others as the member of the miscreants. This witness, however, stated that he had mentioned the names of the appellant No. 1 and two others namely, Tarun Debbarma and Chayan Debbarma as per dictation of the omers. 12. In the cross-examination he deposed the he could not recollect the identity of the person who told to him for inclusion of the names of the appellant No. 1 and said two others as miscreants in the FIR. He further deposed that the police officer also told him to incorporate their names in the ejahar. Whatever the clarification this witness has made about the inclusion of the names of the appellant No. 1 and others in the ejahar, the appellant No. 1 and five others are the named accused persons in the ejahar lodged on the day of occurrence i.e. 16.02.1997 at about 12.30 hours. It is well-known that the First Information Report is not a substantive piece of evidence and can be used to corroborate or contradict the matter at the time of giving evidence. Be that as it may, an ejahar is a very vital material as it is the First information about the incident and has less chances of altering the version and improvement (Sujoy Sen v. State of West Bengal 2007 CriLJ 3727). In the instant case, P.W. No. 1 exhibited the ejahar as Exbt.-1 and the contents' of it were not denied. In the instant case, P.W. No. 1 exhibited the ejahar as Exbt.-1 and the contents' of it were not denied. He simply stated that the names of the appellant No. 1 and two others were included on the dictation of the others but this witness nowhere stated that those named persons were not amongst the miscreants who had attacked the villagers on that fateful day. 13 P.W. No. 9, Sri Dipankar Chakraborty, the only eye witness in respect of the murder of his mother namely, Gita Chakraborty, in his examination in chief, deposed that on 16.2.1997 a number of refugees staying in Gourangatilla School were killed by the extremists armed with riffle and 'rama daos'. Thereafter, they proceeded towards his house and he had seen the appellants and two others as the members of the miscreants. One Jagatsen and the appellant No. 1 were armed with guns and others with daos. The door of his house was closed but they broke down the door and killed his mother by gun-shot. Thereafter, they attacked the other houses of the village and also killed one Dhananjoy Das, Sushila Das and others. He identified the appellants before the learned trial court. 14. This witness, in his cross-examination on behalf of the appellant No. 3 (Manu Debbarma), deposed that his mother was gunned down by Jagatsen Debbarma and Prasenjit Debbarma (appellant No. 1) and he witnessed the incident and also identified the accused persons from the gap in between the ceiling and the roof of his house where he took shelter to hide himself on seeing the miscreants attacked the School. He further deposed voluntarily, during his cross-examination on behalf of the appellant Nos. 1, 2 & 4, that the door of his house had not been broken but it was opened due to the thrust given by the accused persons. He admitted that Sri Hemendra Deb, Dhananjoy Das and Jogesh Bir are his neighbours but they did not visit his house after the incident. It appears that the attention of this witness was drawn to his previous statement, in which he has stated that the miscreants opened fire upon his mother through the gap in between two doors but the statement that he had seen the incident while lying on the ceiling were not made to the police. It appears that the attention of this witness was drawn to his previous statement, in which he has stated that the miscreants opened fire upon his mother through the gap in between two doors but the statement that he had seen the incident while lying on the ceiling were not made to the police. This witness further stated that his mother sustained one bullet injury on her forehead and there were marks of bullet on the wall of the room. He denied the suggestion that he had falsely implicated the accused persons because of previous rivalry. 15. The statement of P.W. Nos. 3, 4 & 5 did not extend any support to the prosecution case, the daughter of P.W. No. 4 and the mother of P.W. No. 5 were also killed in the said incident, however, these witnesses deposed that they could not identify any of the miscreants. P.W. No. 7 is not related with the alleged incident. 16. That, on scanning the evidences of the above witnesses, we do not find sufficient evidences against the appellants in connection with the murder of other 13 villagers and also for causing grievous or simple injuries to the villagers. However, the statement of P.W. No. 9 to the effect that on 16.02.1997 he saw the appellants and others armed with guns and daos, attacking the refugees in Gourangatilla School, therefrom they proceeded to his house, were not denied. The above statement of the P.W. Nos. 1, 2, 6, 8, 10, 11, 13, 14, 15 and 9, clearly depict that on 16.02.1997 a group of persons consisting of the appellants formed an unlawful assembly and attacked the villagers residing at Gourangatilla School and nearby houses. 17. That, the only evidence available on record in respect of the murder of Smti Gita Chakraborty is the statement of P.W. No. 9 who happens to be the son of the deceased. The solitary statement of P.W. No. 9 that his mother was shot to death by Jagatsen Debbarma and Prasenjit Debbarma and he saw the incident from the gap in between the ceiling and the roof of his house is not supported by the sketch maps of the place of occurrence prepared by the P.W. Nos. 18 & 19. The solitary statement of P.W. No. 9 that his mother was shot to death by Jagatsen Debbarma and Prasenjit Debbarma and he saw the incident from the gap in between the ceiling and the roof of his house is not supported by the sketch maps of the place of occurrence prepared by the P.W. Nos. 18 & 19. The house of the P.W. No. 9 wherein his mother was said to have been gunned down, has not been indicated in the sketch map as a place of occurrence. He had also not stated in his previous statement that he had seen the incident while lying on the ceiling of his house. Besides, according to P.W. No. 9, his mother sustained one bullet injury on the forehead whereas the post mortem report of Smti. Gita Chakraborty marked Exbt.-21. reveals that she died because of one bullet injury in the right side of the back of the head. The statement of P.W. No. 9 regarding the bullet injury sustained by his deceased mother is not supported by medical evidence. 18. It is settled that in case of inconsistency contradiction between the ocular and medical evidence, the benefit of doubt has to be extended to the accused person. On this point, reliance has been placed by the learned Counsel appearing for the appellants in the decisions of the Hon'ble Apex Court in (i) Raj Pal and Anr. v. State of Haryana AIR 2007 SCW 2643 and (ii) Ashim Das & etc. v. State of Assam. 19. That, the statement of P.W. No. 19 snows that the statement of P.W. No. 9 under Section 161Cr.P.C. was recorded by him on 25.02.1997 i.e. after 9 days of the incident. There is no evidence on record that P.W. No. 9 was not available at his residence during the said period. No explanation has been given by the prosecution for not recording the statement of such eye witness at the earliest opportunity. According to P.W. No. 18, he had visited the place of occurrence immediately after the incident but no explanation has been given why he has not recorded the statement of P.W. No. 9. Non recording of statement of such important witness is always fatal to the prosecution and the accused may be entitled to acquittal. According to P.W. No. 18, he had visited the place of occurrence immediately after the incident but no explanation has been given why he has not recorded the statement of P.W. No. 9. Non recording of statement of such important witness is always fatal to the prosecution and the accused may be entitled to acquittal. The learned Counsel appearing for the appellants, on this point, has placed reliance in the decisions of the Hon'ble Apex Court as well as the decision of this Court in (i) Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and Ors. 2004 CriLJ 3832 , (ii) State of Orissa v. Mr. BrahmanandaNanda 1976 CriLJ 1985, (iii) Ganesh Bhavan Patel and Anr. v. State of Maharashtra 1979 CriLJ 51 , and (iv) Yazid Ali and Anr. v. State of Tripura (1996) 2 GLR 99 : 1996 (3) GLT 473 20. That, from the above discussions it appears that the statement of P.W. No. 9 contains full of contradictions and also not corroborated by any other evidence. Such contradictions create a doubt as to whether P.W. No. 9 had actually witnessed the incident or not. He had also not stated anything what he had done to his deceased mother immediately after the alleged incident. 21. Looking into the facts and circumstances of the case, we are of the considered view that the statement of P.W. No. 9 cannot be relied upon for the various reasons given hereinabove. 22. That, the learned Public Prosecutor, while assisting the Court during the course of hearing, admitted that the prosecution has failed to prove the charge of murder of Smti Gita Chakraborty, levelled against the appellants and made no forceful submission on any other points. We have also carefully considered the statement of D.W. Nos. 1 & 2 but found not trustworthy and reliable. 23. That, for the foregoing reasons and discussions, we are of the considered view that the prosecution has been able to prove the charges levelled against the appellants for the offences punishable under Sections 148 and 447 of the Indian Penal Code but unable to prove the charges levelled against them for the offences punishable under Section 302 read with Section 149 IPC beyond all reasonable doubts. 24. 24. Accordingly, the conviction and sentence of the appellants under Section 302 read with Section149 IPC is set aside and they are acquitted from the charge of murder of Smti Gita Chakraborty on the benefit of doubt. However, the conviction and sentence passed by the learned trial court in respect of the offences punishable under Section 148 and 447 of the Indian Penal Code is upheld. 25. In the result, this appeal is partly allowed and the impugned judgment of conviction and sentence dated 06.08.2004 passed by the learned trial court in Sessions Trial No. 21(WT/K)/2002 is modified to the extent indicated above.