Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 580 (GAU)

Bimal Kapali v. State of Tripura

2008-08-07

BIPLAB KUMAR SHARMA, MAIBAM B.K.SINGH

body2008
JUDGMENT Mutum B.K. Singh, J. 1. This appeal is directed against the judgment dated 29.10.2003 passed by the learned additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 23(WT/A) of 2002 convicting the Appellant for the offences punishable under Sections 302, 201 read with 34 of IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000, in default to suffer simple imprisonment for 6 (six) months for the offence punishable under Section 302 read with 34, IPC and to suffer R.I. for one year and to pay a fine of Rs.500 for the offence punishable under Section 201, IPC and in default to suffer further S.I. for one month. 2. Heard Mr. P.K. Biswas, learned Counsel appearing for the Appellant and Mr. B.R. Das Roy, learned Special Public Prosecutor appearing for the State-Respondent. The learned Counsel appearing for the Appellant contended that the Appellant was falsely implicated and convicted on the basis of unreliable and uncorroborated testimonies of prosecution witnesses including the testimony of hostile witness (PW No. 8). The prosecution has failed to prove the chain of circumstances from which an inference of the guilt of the Appellant could be drawn conclusively. The learned trial court convicted the Appellant merely on presumption without evidence on record. In view of the evidences available on record, the learned trial court should not have convicted the Appellant. The learned Special Public Prosecutor reacting to the arguments advanced by the other side submits that the prosecution has proved the circumstances cogently beyond' all reasonable doubt leading only to the guilt of the Appellant. 3. Upon hearing the rival submissions of the learned Counsels appearing for the parties, we are satisfied that there is no direct evidence of the occurrence in the case in hand and the conviction was based solely on the circumstantial evidences. Thus, we have scanned carefully the facts and evidences available on record satisfy ourselves whether the conviction is sustainable in law or well-proved by the prosecution. 4. This case relates to the recovery of the dead body of a young girl, namely, Smt. Surabala Sarkar on 6.5.2001, in highly decomposed condition, from Baramura, who was found missing from her residence from the evening of 3.5.2001. 4. This case relates to the recovery of the dead body of a young girl, namely, Smt. Surabala Sarkar on 6.5.2001, in highly decomposed condition, from Baramura, who was found missing from her residence from the evening of 3.5.2001. A written missing report was lodged on 5.5.2001 to the concerned police station alleging that the deceased was taken away by the Appellant along with Askir Miah and Harish Chandra Sarkar. On receipt of the charge-sheet, the learned trial court framed charges under Sections 366/ 302/ 201 read with Section 34, IPC against the three accused persons, but the Appellant alone faced the trial as the other two accused persons were found absconding during the trial. The prosecution examined 15 witnesses to bring home the charges and no defence witness was adduced from the side of the Appellant. At the conclusion of the trial, the Appellant was convicted under Sections 302/ 201 read with Section 34, IPC and sentenced him as stated above. 5. PW No. 1, the informant and the elder brother of the deceased, stated in his deposition that his mother told him about the missing of the deceased. He along with other brothers and relatives including villagers searched the deceased in the night but she was not available anywhere. After two days, the dead body of the deceased was found in the jungle near Baramura. 6. PW No. 2, the mother of the deceased stated in her deposition that in the evening of the relevant day the deceased served rice to her at about 6/7.00 PM and thereafter, the deceased went out of the house stating that she would return soon but she did not return. She reported the matter to the PW No. 1 who along with others went out on her search. In the same evening, she was told by her daughter-in-law (PW No. 3) that the deceased was found talking with accused Harish Chandra Sarkar and she cautioned the deceased. 7. P.W. No. 3, sister-in-law of the deceased, stated that about two years ago in the evening, she found the deceased with Harish Chandra Sarkar in an isolated place at the back of her house and both of them left the place when she cautioned them. She narrated what she had seen to the PW Nos. 1 and 2 in the same evening. 8. She narrated what she had seen to the PW Nos. 1 and 2 in the same evening. 8. PW No. 4 is the witness of the inquest report and PW No. 5 is a member of Gram panchayat, who simply stated about the recovery of the dead body from the jungle of Baramura. PW No. 6 is a local villager who found the dead body first while going to Baramura to collect grass. 9. PW No. 7, another brother of the deceased, stated that his sister was found missing from the evening of 3.5.2001 and they searched for her but found untraceable in the night but subsequently recovered the dead-body of his sister from the jungle of Baramura. 10. PW No. 8, a neighbour of the deceased, stated in his deposition that he knew the accused persons. About two years ago, one day in the evening, he found the deceased going alone towards Baramura through the field. After declaring this witness hostile, he stated in the cross-examination by the prosecution that he told to the Darogababu that he found the accused parsons along with the deceased talking under a jackfruit tree at the eastern side of the house of Trivanga Sarkar on 3.5.2001 at about 7.00 PM and the accused Harish Chandra told him that there will be a video programme and he should come with jumper. When he returned with jumper, all the accused persons along with the deceased were found going to the western direction through a lane towards Baramura. In his cross-examination by the defence counsel, he stated that he made the said statement as tutored by Darogababu. 11. PW No. 9, Akhil Sarkar, another brother of the deceased, stated in his deposition that on getting information about the missing of his sister, he along with his friends went out and searched in the neighbourhood but she was not available anywhere. In the midnight at about 12.00 PM they found Bimal Kapali and Askir Miah at the Satkania School spreading their wearing and sitting with their underwear. When his party disclosed about their visit, they advised them to search near the jungle of Baramura where they went but, the deceased was not available. When they returned to Satkania School both of them were already left. When his party disclosed about their visit, they advised them to search near the jungle of Baramura where they went but, the deceased was not available. When they returned to Satkania School both of them were already left. On the following day of the missing of Surabala, PW No. 8, Bishu told him that he saw the deceased was going with Bimal Kapali, Askir Miah and Harish Chandra Sarkar towards Baramura. He further stated that the villagers captured Chandra on the next morning of the night of missing of the deceased. He further stated through court that Chandra was detained when he was going to Bangladesh, on asking about Surabala, Chandra told that he handed over Surabala to Bimal Kapali and Askir Miah on that night and he cannot say whereabouts of Surabala and thereafter he was handed over to Ramnagar Police Outpost. Bimal Kapali and Askir Miah were not available in the village from the morning of the following day of missing Surabala. 12. PW No. 10, Sri Akhil Sarkar, a villager of Dharma Lunga stated that about two years ago he went with PW No. 9 to search for deceased and at the midnight they found Bimal Kapali and Askir Miah sitting inside the Satkania School and when we disclosed that Surabala was missing, they advised them to search for her. Thereafter they returned home and Surabala was not available. On the 4th day of her missing her dead body was found buried in the jungle of Baramura. Bimal Kapali and Askir Miah were not available in the locality from the next morning of the day of missing of Surabala. 13. PW No. 11, Sri Nikhil Sarkar, a neighbour of the deceased, stated almost the same statement as stated by the PW No. 10. PW No. 12, was tendered by the prosecution and he was not crossed. PW No. 13, is the scribe of the FIR, who stated that on 5.5.2001 on the request of PW No. 1 he wrote a complaint to O/C, West Agartala P.S. about the missing of the deceased. 14. PW No. 14, Sri Swapan Chakraborty, the investigating officer or the case, stated in his deposition that on 5.5.2001 the case was entrusted to him and on the same day he visited Sharma Lunga, prepared sketch map and recorded statement of the witnesses. 14. PW No. 14, Sri Swapan Chakraborty, the investigating officer or the case, stated in his deposition that on 5.5.2001 the case was entrusted to him and on the same day he visited Sharma Lunga, prepared sketch map and recorded statement of the witnesses. He conducted raid in the house of Harish Chandra Sarkar and arrested him but the Askir Miah and Bimal Kapali are found absconding. On, 6.5.2001, on getting information about a dead body lying in the Baramura jungle, he immediately rushed to Baramura Jungle and found the dead body in a highly decomposed condition in whole covered with leaves and branches of trees. The dead body was identified to be that of missing Surabala and prepared inquest report of the dead body. He recorded the statements of other witnesses and also sent the dead body for autopsy to ascertain whether the victim was rapped or not before her death. After postmortem examination, the dead body was handed over to the relatives. He conducted raids the houses of the Bimal Kapali and Askir Miah on different dates but they were found absconding. On 31.10.2001 he submitted charge-sheet against Harish Chandra Sarkar, Bimal Kapali and Askir Miah showing Bimal Kapali and Askir Miah as absconders. 15. PW No. 15, Dr. Ranjit Das, stated in his deposition that the post mortem report was done by Dr. P.K. Dey and he knew the hand writings of the said doctor. According to the opinion of Dr. P.K. Dey, the cause of death was due to shock as a result of injuries produced by sharp cutting weapon which was sufficient to cause death in ordinary course of nature. 16. That, the inquest report marked Ext.-3/1 reveals that the dead body was recovered from an unabandoned hole lying in Baramura after a tilla situated at 50 yards to the East of Indo-Bangladesh border. No mark of injuries or wounds were found in the hands, legs and other parts of the body of the deceased except a wound approximately 6" to the right side of the neck. The deceased's physique started getting decomposed and bad smell was spreading, no other apparel were found except big black colour printed maxi in the lower portion of the deceased's person and she was aged about 16 years having dark tan complexion. The deceased's physique started getting decomposed and bad smell was spreading, no other apparel were found except big black colour printed maxi in the lower portion of the deceased's person and she was aged about 16 years having dark tan complexion. As per hand-sketch map of the place of occurrence marked Ext.4, there are huts/houses near the place of occurrence from where the dead body was recovered. The post mortem report marked Ext.7 discloses that the autopsy was done on 7.5.2001 at 12.30 PM, one incised wound of 5 x 3 x 2.5 cm. was found on the neck, vaginal orifice swollen due to decomposition and maggots present and the cause of death was due to shock as a result of injuries produced by sharp cutting weapon which was sufficient to cause death in ordinary course of nature. The approximate time of dated has been given as two days since the date of postmortem examination. 17. That, as regards the point whether the prosecution has proved the circumstantial evidences from which an inference can be drawn conclusively, unerringly, pointing only to the guilt, of the case, has to be examined in the above evidences on record. It is well settled that where a case rests solely on circumstantial evidences, the conviction of the accused can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt or the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances Venkatesan v. State of Tamil Nadu AIR 2008 SCW 3913 . In the above case, the Hon'ble Apex Court referred to its earlier decision held in Padala Verra Reddy v. State of A.P. and Ors. In the above case, the Hon'ble Apex Court referred to its earlier decision held in Padala Verra Reddy v. State of A.P. and Ors. AIR 1990 SC 79 , in which it was laid down that when the case rests upon circumstantial evidences, such evidence must, satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Without multiplying other decisions on this point suffice is to say that the prosecution has to prove each circumstance to be relied upon by cogent, succinct and reliable evidence and the facts so established, should be consistent only with the hypothesis of the guilt of the accused unexplainable on any other hypothesis except the guilt of the accused. 18, Reverting to the case in hand, it has been established that the deceased went out of her residence after 6/7.00 PM on 3.5.2001. Her dead-body was recovered from Baramura jungle on 6.5.2001. The post mortem examination of the dead body of the deceased was conducted on 7.5.2001 at about 12.30 PM and the time of death has been reflected since two days of the date of post mortem examination. The death was caused due to shock as a result of the cut injuries on the neck of the deceased. There was no sigri of sexual, assault or rape of the deceased in the post mortem examination. The deceased was seen talking with the accused Harish Chandra Sarkar in the evening of 3.5.2001. In the midnight of the same day, the Appellant and the accused Askir Miah were found in the Satkania School, wearing underwears and drying their clothes in the air. The deceased was seen talking with the accused Harish Chandra Sarkar in the evening of 3.5.2001. In the midnight of the same day, the Appellant and the accused Askir Miah were found in the Satkania School, wearing underwears and drying their clothes in the air. Police apprehended the accused Harish Chandra Sarkar on 6.5.2001 and could not apprehend the other two accused persons despite attempts made to arrest them. However, PW No. 8 who was declared hostile by the prosecution, stated that he had seen the deceased in the evening of the day of her missing going alone towards Baramura through field. In his cross-examination by the prosecution, he admitted that he told to the Darogababu that on 3.5.2001 at about 7.00 PM he found the accused persons talking with the deceased under a jackfruit tree and from there, they went to the western direction toward Baramura. 19. The learned Counsel appearing for the Appellant has strenuously argued that the statement of PW No. 8 is wholly unreliable and the same is not corroborated by any reliable evidence. It appears that the learned trial court relied upon the statement of the PW No. 8 and also held that the same was corroborated by the PW Nos. 1 and 9. 20. That, regarding the evidentiary value of the statement of the hostile witness, it is well settled principle of law that evidence of hostile witness can be relied upon to the extent to which it supports the prosecution version. Evidence of hostile witness cannot be treated as washed off the record, it remains admissible in the trial and there is no legal bar on relying upon such testimony if corroborated by other reliable evidences Koli Lakhmanbhai Chanabhai v. State of Gujarat AIR 2000 SC 210 . In Radha Mohan Singh and Ors. v. State of U.P. (2006) Cri. LJ 1121, the Hon'ble Apex Court held that the evidence of the prosecution witnesses cannot be rejected in toto merely because the prosecution chose to neat him as hostile and cross-examine him. The evidence of such witness cannot be treated as effaced or washed off the record altogether the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof (para 7). The evidence of such witness cannot be treated as effaced or washed off the record altogether the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof (para 7). In a catena of cases, it has been held that testimony of hostile witnesses should not be rejected outright, a hostile witness does not lose its credibility, the entire evidence has to be scrutinized and the acceptable part maybe accepted. But the court should be slow in relying upon hostile witness and look for corroboration. On the other hand, whatever the previous statement of a hostile witness recorded after declaring him hostile cannot be treated as substantive piece of evidence Baluk Das v. State of Bihar 1998 SCC 130 . 21. Record reveals that PW No. 8 was aged about 16 years when his statement was recorded on 13th February, 2003. He was a young boy of 14 years old on the alleged day of missing of the deceased. He stated in his deposition that about two years ago, one day in the evening, he found the deceased going alone towards Baramura through the field. He was told by the accused Harish Chandra to come with worm clothes to enjoy video programme in the house of Dilip. When he went with warm clothes, the accused Harish Chandra left the place and it was a winter day. He stated what he has seen on that day to the villagers and the brothers of the deceased. This part of the statement is corroborated by the statement of PW No. 3, who also stated that in the evening of the day of missing of the deceased, she found the deceased talking with the accused Harish Chandra Sarkar in an isolated place at the back side of her house. In the cross-examination by the prosecution, after declaring him hostile, he admitted that he told to the Darogababu that the accused persons and the deceased were found talking under a jackfruit tree in the eastern side of the house of Trivanga Sarkar on 3.5.2001 at about 7.00 PM and Harish Chandra told him to come with jumper to witness video programme. When he went with jumper, the accused persons and the deceased were found going to the western direction through a narrow lane towards Baramura. When he went with jumper, the accused persons and the deceased were found going to the western direction through a narrow lane towards Baramura. This second part of his statement is the reproduction of his previous statement given to the police even though recorded the same by the court while cross-examining him by the prosecution. Such previous statement recorded by the court cannot be taken as a piece of substantive evidence. It appears that the learned trial court relied upon such previous statement as substantive evidence while passing the impugned judgment. We have considered the statement of the PW No. 8 and unable to accept the said previous statement as a piece of substantive evidence. Admittedly, PW No. 1, in his deposition stated that he was told by PW No. 8 that the accused persons with the deceased were seen going together towards Baramura direction through jackfruit garden in the evening of the day of deceased's missing. The above statement of P.W. No. 1 is hearsay evidence. Besides, the direction given by the PW No. 8 is not tallied with the rough sketch map marked Ext. P/4. The jackfruit garden is marked W in the sketch map and the Baramura jungle from where the dead-body of the deceased was recovered is marked 'A' and it lies near the road towards the northeastern direction from the jackfruit garden. Whereas PW No. 8 stated that the accused persons and the deceased went to the western direction towards Baramura. For the reasons what has been discussed above, the second part of the statement of PW No. 8 cannot be relied upon. 22. That, from the above facts, we are of the view that the prosecution could not establish that the deceased was last seen together with the accused persons except the fact that the deceased was seen talking together with one of the accused persons, namely, Harish Chandra Sarkar in the evening of the day of her missing. PW Nos. 3 and 8 also did not mention at what exact time they saw the deceased on the said day. 23. That, the prosecution was, however, successful in establishing the fact that in the midnight of the day of missing of the deceased, the Appellant and the accused Askir Miah were found inside the Satkania School wearing underwears and drying their clothes in the air. 23. That, the prosecution was, however, successful in establishing the fact that in the midnight of the day of missing of the deceased, the Appellant and the accused Askir Miah were found inside the Satkania School wearing underwears and drying their clothes in the air. The above fact is too remote to connect with the principal issue of murder of the deceased. It is in the evidence of PW No. 9 that both the accused persons advised the search party for searching the deceased in the Baramura jungle. Had they committed the offence and buried the dead-body in the Baramura jungle is alleged by the prosecution, it would not be logical to believe why they should have advised the search party to go at that place from where the dead body was recovered subsequently at their risk. Besides, the post mortem report reveals that the death was occurred within 48 hours of the date of post mortem examination. It shows that the deceased was alive till 4/5.5.2001 and the said two accusea persons were found at the said School in the midnight of 3.5.2001, but the deceased was neither with them at the said School nor at Baramura. The learned trial court completely overlooked the above fact while passing the impugned judgment. 24. The prosecution has also failed to prove the motive of the commission of the offence which is very much essential in the case rests on the circumstantial evidences. The proof of motive may be dispensed with even in the case of murder when there is clear-cut direct evidence of the occurrence but in the instant case, admittedly, there is no direct evidence of the occurrence. We also do not find any evidence from which an inference can be drawn that the accused persons had common intention either to kidnap or rape or murder the deceased. 25. That, according to the prosecution, the deceased was last seen together with the accused persons but we are of the firm view that the prosecution failed to prove the same as discussed hereinabove. 25. That, according to the prosecution, the deceased was last seen together with the accused persons but we are of the firm view that the prosecution failed to prove the same as discussed hereinabove. Moreover, in Ramreddy Rajesh Khanna Ready v. State of A.P. (2006) 13 SCC 172, the Hon'ble Apex Court held that the theory of last seen together comes into play where the time gap between, the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case, the court should look for some corroboration. In the case in hand, the deceased was last seen together with the accused Harish Chandra Sarkar on 3.5.2001 and the dead-body was recovered on 6.5.2001. According to the post mortem examination report, the time or death of the deceased was either on 4th or 5th May, 2001. There is no evidence that the deceased was seen together with the Appellant either on 3.5.2001 or on any day before her death. Hence, in the absence of any reliable evidence, this theory must fail. 26. That, as regards the absconsion of the Appellant, it may be mentioned that the act of absconding itself does not necessarily mean that the accused is guilty. The FIR was lodged on 3.5.2001, mentioning the names of the accused persons as culprits and on coming to know the said facts they might have fled away due to fear of their arrest as the IO made attempts on 5.5.2001 and on subsequent dates to arrest them. However, the Appellant was surrendered subsequently and faced the trial. 27. That, the evidences being as stated above and for the reason what has been discussed, we are of the view that the prosecution could not prove the circumstantial evidences from which an inference of guilt of the Appellant can be drawn completely and conclusively and we find no reliable evidence to accept that the Appellant was seen together with the deceased before the day of occurrence. Thus, we are left with no option except to set aside the impugned conviction of the Appellant dated 29.10.2003 passed by the learned additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 23(WT/A) of 2002. Thus, we are left with no option except to set aside the impugned conviction of the Appellant dated 29.10.2003 passed by the learned additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 23(WT/A) of 2002. Resultantly, the Appellant is acquitted of the charges levelled against him. The bail bond and surety bond stand discharged. No order as to costs. Appeal allowed.