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2008 DIGILAW 683 (GAU)

Tapan Debbarma v. State of Tripura

2008-09-11

B.D.AGARWAL, HRISHIKESH ROY

body2008
JUDGMENT B.D. Agarwal, J. 1. The sole appellant stands convicted Under Section 302 of the Indian Penal Code vide judgment and order dated 18-9-2002 passed by the Addl. Sessions Judge, West Tripura, Agartala in Sessions Trial No. 98 (WT/A) of 2002. By the impugned judgment, the appellant has been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/- with default stipulation of 2 years SI. Being aggrieved with the conviction, the convict has preferred this appeal. 2. We have heard Sri. A.K. Bhowmik, learned Sr. Counsel for the appellant. The State was represented by Sri D. Sarkar, learned Public Prosecutor. We have also gone through the impugned judgment and the evidence proffered by the prosecution. The defence case was by and large of total denial. It appears that the appellant had taken an alibi to rebut the prosecution evidence that he had absconded after the incidence, but no evidence was produced by the accused to prove that he was always at home. 3. At the outset, it would be apposite to give a summary of the prosecution story which is as below: 3.1 The accused-appellant is the brother-in-law of the deceased Sapan Debbarma since their wives are sisters. It is also the prosecution story that the accused was also living in the same locality and was a frequent visitor to the house of the deceased due to their close relation. During the course of investigation, it was also revealed that the appellant had developed affairs and illicit relation with the wife of the deceased and with a view to fulfill his desire to continue with this illicit relationship smoothly the appellant eliminated his brother-in-law. 3.2 According to the prosecution case, the murder took place in the night of 27-10-2001, the day of Vijaya Dashami, in the house of the deceased. The story of murder that surfaced during investigation and trial is that on the relevant night at about 9.30 p.m., the deceased returned home with the appellant Tapan Debbarma and both of them spent sometime in the house of the deceased and had their dinner together. On the relevant night, the deceased was alone at home. The story of murder that surfaced during investigation and trial is that on the relevant night at about 9.30 p.m., the deceased returned home with the appellant Tapan Debbarma and both of them spent sometime in the house of the deceased and had their dinner together. On the relevant night, the deceased was alone at home. In the morning when the deceased did not come out of his dwelling house and since his doors were still found closed till 8 am, his nephew (PW2) went to enquire about his uncle only to find him lying dead in the kitchen room with bleeding injuries. Thereafter, the relatives and nearby people were informed about the murder. Within few hours a formal written FIR was lodged by PW 1, the brother of the deceased. 4. The FIR (Ext. 1) was registered as Sidhai PS Case No. 78 of 2001 Under Section 302 of the Indian Penal Code. During investigation, the needle of suspicion for committing the offence was pointed towards the appellant since the accused was seen visiting the house of the deceased. Accordingly, the Investigating Officer made repeated attempts to apprehend the appellant who could not be apprehended for nearly five and a half months. In other words, the appellant was apprehended from a different locality on 8-4-2002. In the meanwhile, the dead body was forwarded to the hospital where post mortem examination was done. Statements of witnesses were recorded. The Investigating Officer also seized one iron rod and one dao which was lying just by the side of the dead body. These weapons were seized vide Ext.4. Before that, inquest on the dead body was also conducted. Ext. 2 is the Inquest report. As usual, a hand-sketched map of the site of the offence was also prepared. After completing the investigation, the accused was accordingly challaned vide charge-sheet dated 29-7-2002. 5. During the course of trial, the prosecution examined altogether 10 witnesses. The calendar of witnesses includes family members of the deceased, independent witnesses from the locality, Medical Officer and the Investigating Officer. After trial, the appellant was convicted Under Section 302 of the Indian Penal Code. 6. Admittedly, there was no ocular evidence before the prosecution to prove the offence of murder. The calendar of witnesses includes family members of the deceased, independent witnesses from the locality, Medical Officer and the Investigating Officer. After trial, the appellant was convicted Under Section 302 of the Indian Penal Code. 6. Admittedly, there was no ocular evidence before the prosecution to prove the offence of murder. Hence, the prosecution relied upon the following circumstances to establish the complicity of the appellant for the offence of murder: (i) The accused/appellant, was last seen together with the deceased. (ii) The accused/appellant was found missing from the village since early morning of the day of incidence. (iii) The accused/appellant was found perturbed and behaving abnormally in a marriage gathering nearly after one hour of the murder. (iv) The accused did not visit the house of the deceased in the morning. (v) Extra-marital relation with the wife of the deceased being the motive for the crime. 7. Before addressing the circumstances, it is necessary to ascertain whether the death of Sapan Debbarma was homicidal one and if so, whether it amounted to murder. 8. Sri Bhowmik, learned Counsel for the appellant did not address the Court assailing the findings of the learned Sessions Judge with regard to the homicidal death of Sapan. Hence, we do not feel it necessary to dwell upon this issue at length. Suffice is to mention here that during necropsy, the Medical Officer noticed as many as 5 numbers of incised wounds on the vault, occipital region and on the face of the deceased. The force of the blows were so severe that the skull was found fractured. The Doctor has opined that the death was homicidal in nature due to multiple injuries. In the cross-examination, the doctor (PW 6) has further deposed that on dissection he found partially digested food in the stomach which corroborates the prosecution evidence that the murder must have been committed between 9.30 pm and 11 pm. Keeping in mind the number of assaults inflicted upon the deceased, nature of heavy and sharp weapons used in the assault as well as the situs of the wounds, we find no difficulty to agree with the finding of the trial Court that the assailant had definite intention to kill the person and thus, the offence falls under clause firstly to Section 300 of the Indian Penal Code, punishable Under Section 302, IPC. 9. 9. As mentioned earlier, the prosecution case entirely rests upon certain incriminating circumstances. Sri. Bhowmik, learned Counsel for the appellant submitted that if a criminal offence is to be proved on the basis of circumstances, the prosecution must fully establish the incriminating circumstances and all the circumstances must form a complete chain consistent only with the hypothesis of the guilt of the accused leaving no scope of doubt of innocence of the accused. In support of the submission, the learned Counsel relied upon a few judgments rendered by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Annappa, 1979 Cri LJ 1089; Harendra Narayan Singh vs. State of Bihar, 1991 Cri LJ 2666 and Sharad Birdhichand vs. State of Maharashtra 1984 Cri LJ 1738. 10. The judgment of the Apex Court rendered in the case of Hanumant vs. State of M.P. 1953 Cri LJ 129 can be said to be one of the earliest judgments wherein the legal principle to record conviction on the basis of incriminating circumstances appears to have been crystallized. The relevant observations made in the said authority are as follows: 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 within all human probability the act must have been done by the accused. 11. The aforesaid view has been consistently followed in the last more than five decades. In the case of Sharad Birdhichand (supra), the Hon'ble Supreme Court has culled out golden principles with regard to circumstantial evidence cases. 11. The aforesaid view has been consistently followed in the last more than five decades. In the case of Sharad Birdhichand (supra), the Hon'ble Supreme Court has culled out golden principles with regard to circumstantial evidence cases. Their Lordships have held that the following conditions must be fulfilled before an accused is held guilty of a criminal offence on the basis of circumstantial evidence: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstance concerned 'must or should' and not 'may be' established. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstance should be of a conclusive nature and tendency. (iv) There should be excluded every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Case law discussed. 12. The other noticeable judgments ex pounding legal principles for cases based on circumstantial evidence are C. Chenga Reddy vs. State of Andhra Pradesh 1996 Cri LJ 3461; Pedala Veera Reddy vs. State of Andhra Pradesh AIR 1990 SC 79 and the recent judgment of Vinay D. Nagar vs. State of Rajasthan 2008 Cri LJ 1907. In this case, the Hon'ble Supreme Court has reiterated the criteria of recording conviction on the basis of circumstantial evidence in the following words: The principle of law is well established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so 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 within all human probability the act must have been done by the accused. 13. In the light of the law enunciated by the Apex Court briefly discussed hereinabove, we now proceed to examine whether incriminating circumstances against the appellant have been rightly proved by the Sessions Court: Last Seen Together Admittedly, the mere fact that the accused was last seen in the company of the deceased would not necessarily lead to the irresistible inference that the accused must have committed the murder. However, if the fact of "last seen together" is established and the accused fails to explain as to how his companion met with an unnatural death, then this fact would become highly incriminating and an inference of the guilt of the accused can be drawn. We would hasten to add here that consistent with the settled legal position the complicity of the accused must be proved beyond all shadow of doubt. An accused should ordinarily be not held guilty of the crime on the sole ground that the accused was "last seen together" with the deceased. In other words, some additional circumstances must also be proved by the prosecution to complete the chain of circumstances ending with the hypothesis of the guilt of the accused and inconsistent with his innocence. In the case of Babu vs. Babu, (2003) 7 SCC 37 , the Apex Court has held that once the fact of "last seen together" is proved, it is for the accused to explain the said circumstance. 14. Coming to the case at hand, we find that PW 2 was the first person who saw both the appellant and the deceased together. PW2 is the nephew of the deceased. At the relevant time, he was a young boy of 13 years. This witness has deposed that since the deceased was his maternal uncle and living adjacently and since his wife went to her parents' house, the deceased had left the key of his house with this witness. PW2 is the nephew of the deceased. At the relevant time, he was a young boy of 13 years. This witness has deposed that since the deceased was his maternal uncle and living adjacently and since his wife went to her parents' house, the deceased had left the key of his house with this witness. PW 2 has further deposed that at about 9 pm, the deceased returned home with his brother-in-law Tapan and collected the key from him and both of them entered the house of the deceased together. This witness has further deposed that he had also heard little conversation in between them wherefrom he could realize that both the deceased and the appellant dined together. 15. The aforesaid fact that the deceased was last seen in the company of the appellant was reported to all the family members. PWs. 1, 3, 4 and 8 have also spoken about I the aforesaid fact on being reported by PW2. All these witnesses are family members of the deceased being brother, sister etc. We do not find any penetrating cross-examination of the witnesses in this regard nor any suggestion was given to the witnesses that during the crucial period between 9 p.m. and 11 pm the appellant was at some other place. Hence, we find no difficulty to hold that the prosecution has successfully proved the aforesaid incriminating circumstance. 16. Absconding Almost all the non-official witnesses have deposed that after the incidence, the appellant went missing from the village. From the deposition of PWs. 5 and 7, it appears that on the same night there was a marriage ceremony in the house of one Mahendra Debbarma. In fact, inmates of the witnesses and people from the locality were attending the marriage ceremony at the time when the alleged murder was committed. PWs. 5 and 7 have stated that the accused came to the marriage function. But he was little late. PW 5 has reiterated in the cross-examination that he did not see the appellant Tapan in the marriage ceremony before 11 pm. This specific statement of PW 5 is in conformity with the medical evidence wherein it has been opined that the deceased had taken food approximately one hour before his death. From the other evidence, it is clear that the appellant was found in the company with the deceased during the period from 9 pm to 11 pm. This specific statement of PW 5 is in conformity with the medical evidence wherein it has been opined that the deceased had taken food approximately one hour before his death. From the other evidence, it is clear that the appellant was found in the company with the deceased during the period from 9 pm to 11 pm. Thereafter, for brief duration, the appellant came to the marriage function and thereafter he absconded since morning of the following day. 17. Taking a cue from the statement of PWs 5 and 7 that the appellant Tapan was seen in the village market at 10 am in the morning, Sri Bhowmik, learned Counsel for the appellant submitted that had the appellant been guilty of murder neither he would have dared to attend the marriage function nor he would have wandered in the market till morning. 18. So far as presence of the appellant in the marriage function is concerned it will be discussed in the next issue. With regard to the absconding from the village it is gathered from the evidence of the I.O. that the accused could be apprehended only on 8-4-2002 from a different village. According to the learned Counsel for the appellant, the accused might have taken refuge in another village to avoid arrest since a rumour had spread that the accused Tapan might have committed the murder since he had affairs with the wife of the deceased. The pleading of the learned Counsel is unacceptable since the accused himself did not give any such explanation in his 313. Cr. P.C. statement. Besides this, it is the admitted position that till the filing of the FIR, the appellant was not suspected as an offender of murder. PW 7 has candidly deposed that they saw Tapan in the market while they were going to Legunga Police outpost to lodge the FIR. Had the villagers suspected the complicity of the appellant in the murder they would have certainly apprehended him in the market itself. Hence, the submission of learned Counsel that the appellant fled away from the village suspecting that he will be falsely implicated in the murder case in a feat of grudge for his illicit affairs is totally misplaced. Rather, the absconding of the appellant for a long period of 5 1/2 months has been rightly considered as an incriminating evidence by the trial Court. 19. Sri Bhowmik, learned Sr. Rather, the absconding of the appellant for a long period of 5 1/2 months has been rightly considered as an incriminating evidence by the trial Court. 19. Sri Bhowmik, learned Sr. Counsel for the appellant submitted that absconsion by itself cannot prove the complicity of a person in an offence. In support of the submission, the learned Counsel placed reliance upon a judgment of Matru vs. State of U.P. 1971 Cri LJ 913. The relevant observations of the Apex Court are extracted below for ready reference: 15. The appellant's conduct in absconding was also relied upon. Now mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. 20. In the aforecited case, the Hon'ble Supreme Court did not attach much importance to the evidence of absconding of the accused when it is found that the prosecution could not establish any other corroborative circumstance against the appellant. Besides this the Apex Court also noticed that the appellant had accompanied the villagers to lodge the FIR, whereas the conduct of the appellant in the case in hand is totally different. Post-crime conduct of the appellant will be discussed a little later in this judgment. Hence, the authority cited on behalf of the appellant is not comparable with the fact situation of this case. Be that as it may, in the aforesaid case of Matru (supra), the Hon'ble Supreme Court has held that absconding of an accused is no doubt a relevant circumstance to be considered along with other evidence. 21. Hence, the authority cited on behalf of the appellant is not comparable with the fact situation of this case. Be that as it may, in the aforesaid case of Matru (supra), the Hon'ble Supreme Court has held that absconding of an accused is no doubt a relevant circumstance to be considered along with other evidence. 21. Abnormal Behaviour/Conduct As noted earlier on the relevant night there was a marriage function in the same locality and the appellant being a resident of same village was also expected to be in the marriage function on time. However, according to PW 5, the accused-appellant came to the marriage function only at about 11 p.m. Besides this, according to PWs 5 and 7, the appellant was asking for liquor and also encouraging the others to take alcohol, which was not the usual practice in their locality. Both these witnesses have also given corroborative evidence that the appellant was behaving abnormally and he was found perturbed. 22. Sri Bhowmik, learned Counsel for the appellant submitted that had the appellant committed the heinous crime of murder, he, in all probability would have skipped attending the marriage function. In other words, it was contended that giving attendance in the marriage rather indicates that the appellant did not commit any serious crime. However, we are of a different view. In our considered opinion, the appellant was late in reaching the marriage function only because he was involved in the murder. Besides this, demanding alcohol and offering the same to the elderly people which was against the custom is also indicative of committing the crime before going to the marriage function. Had the crime been committed by a professional criminal he could have maintained cool and normal conduct. However, the appellant not being a professional criminal must have lost his balance after committing the crime like murder. 23. There is one more noticeable post-crime conduct of the appellant, which also can be considered as incriminating evidence. Admittedly, the appellant was he brother-in-law of the deceased and was living in the same locality. Although the news of murder of Sapan spread in the locality, the appellant did not bother to visit the house of the deceased. No answer is forthcoming from the mouth of the appellant in his statement Under Section 313, Cr. P.C. in this regard. Admittedly, the appellant was he brother-in-law of the deceased and was living in the same locality. Although the news of murder of Sapan spread in the locality, the appellant did not bother to visit the house of the deceased. No answer is forthcoming from the mouth of the appellant in his statement Under Section 313, Cr. P.C. in this regard. Even for a moment, if it is presumed that the appellant had some kind of apprehension of his being falsely implicated in the murder for having extra-marital relation, then also he was expected to visit the site of offence at least till a certain charge of committing the murder by him was made. On the other hand, the appellant fled away from the village even without hearing any such accusation against him. This unnatural conduct on the part of the appellant, in our considered opinion, is certainly a relevant fact to draw adverse inference against the accused Under Section 8 of the Evidence Act, 1872. In the case of Dhananjoy Chatterjee vs. State of West Bengal (1994) 1 SCR 37, the Hon'ble Supreme Court has held that absconsion of an accused soon after the occurrence deserves consideration. 24. Motive It is the settled law in the criminal jurisprudence that proof of motive is not sine qua non. However, in cases where the prosecution can prove motive it reinforces all the remaining evidence in favour of the prosecution. In the case of Dhananjoy Chatterjee (supra), the Hon'ble Supreme Court has held that in a case based on circumstantial evidence, the existence of motive assumes significance. In the case of Suresh Chandra Bahri vs. State of Bihar reported in 1994 Cri LJ 3271, the Hon'ble Supreme Court has held that sometimes motive plays an important role and becomes a compelling force to commit the crime and, therefore, the motive behind the crime is a relevant factor for which evidence may be adduced. Similarly, in the case of Dugdu vs. State of Maharashtra reported in 1977 Cri LJ 1206 the Hon'ble Apex Court has held that motive may conceivably furnish necessary corroboration, but there should be independent evidence to that effect. Similarly, in the case of Dugdu vs. State of Maharashtra reported in 1977 Cri LJ 1206 the Hon'ble Apex Court has held that motive may conceivably furnish necessary corroboration, but there should be independent evidence to that effect. Yet in another case of Gulichand vs. State of Rajasthan reported in 1974 Cri LJ 331 the Hon'ble Supreme Court has held that if the corroboration of the allegations made by the prosecution witnesses against the accused were needed, it could be found in the motive and the tense feelings between the accused and the deceased. 25. In the case before us, the prosecution had been successful to prove motive behind eliminating Sapan who was certainly an obstacle in the illicit relation between his wife and the appellant. PWs 3 and 8 have spoken about the fact of affairs between the appellant and the wife of the deceased. Incidentally, both these witnesses are female persons and related to the deceased. Since the deceased was also brother-in-law of the appellant, it can be said that PWs 3 and 8 and the remaining witnesses are somehow related to the appellant as well. In the case of Gopal Singh vs. State of U.P. 1980 Cri LJ 832; State of Rajasthan vs. Kalki, 1981 Cri LJ 1012 and Maniram vs. State of Rajasthan, 1993 Cri LJ 2530, the Apex Court has held that ordinarily a close relation would be the last person to screen the real culprit and falsely implicate innocent persons. This view has been consistently reiterated in a good number of judgments. This legal principle is applicable in the present case both from the view of ascertaining the complicity of the appellant for the offence of murder as well as to prove the motive for the crime. 26. It is true that PW 3 has admitted in the cross-examination that she did not say before the Investigating Officer about the secret love affairs in between the appellant and the wife of the deceased. However, this omission cannot be considered to be a significant one considering the fact that the witness is a female person and she might have hesitated to disclose this fact before the Police Officer. At any rate, except denying the allegation of illicit relationship, the accused also failed to tender any evidence in this regard. However, this omission cannot be considered to be a significant one considering the fact that the witness is a female person and she might have hesitated to disclose this fact before the Police Officer. At any rate, except denying the allegation of illicit relationship, the accused also failed to tender any evidence in this regard. Strangely, neither the wife of the accused nor the wife of the deceased came forward to defend the appellant or to clear the stigma leveled against their character by the prosecution witnesses. Hence, we have no hesitation to hold that the prosecution has also proved the motive for the crime. 27. False answer in 313 Statement In the case of Swapan Patra vs. State of West Bengal, (1999) 9 SCC 242 , the Hon'ble Supreme Court has held that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue, then the same acts as an additional link in the chain of circumstances. Similar view has been taken by the Apex Court in the case of State of Maharashtra vs. Suresh, (2000) 1 SCC 471 and Kuldeep Singh vs. State of Rajasthan, 2001 Cri LJ 479. In the case before us, all the incriminating circumstances were put to the appellant. However, except pleading that the allegations were false, the accused failed to explain the incriminating circumstances, found against him. In our considered opinion, the plea of the accused that he did not abscond from the village and that he was always at home after the incidence is out and out a false reply. His casual denial of the circumstances like seen with the deceased for the last time; demonstrating unusual behaviour in the marriage function and also about his extra-martial relation with the wife of the deceased also amounts to suppressing the truth. This conduct of the appellant is also capable of inculpating him in the offence of murder. 28. Conclusion After analyzing the entire evidence on record, we hold that unexplained incriminating circumstances discussed in this judgment have formed a complete chain not giving any room to take a view consistent with the innocence of the appellant. In other words, the facts and circumstances established by the prosecution are consistent only with the hypothesis of the guilt of the appellant and nothing else. In other words, the facts and circumstances established by the prosecution are consistent only with the hypothesis of the guilt of the appellant and nothing else. Hence, we do not find any reason to interfere with the impugned judgment. In the result, the appeal stands dismissed. The conviction of the appellant Under Section 302 of the Indian Penal Code as recorded by the trial Court is hereby affirmed. Appeal dismissed.