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2008 DIGILAW 786 (GAU)

Mangal Singh Deb Barma v. State of Tripura

2008-11-12

BROJENDRA PRASAD KATAKEY, MAIBAM B.K.SINGH

body2008
JUDGMENT B.P. Katakey, J. 1. This appeal by the convict is against the judgment of conviction dated 19.3.2002 recorded by the learned Sessions Judge, North Tripura, Kailasahar in Sessions Trial No. 42(NT/K)/2001 convicting the Appellant under Section 302 / 34 of the IPC and also under Section 27 of the Arms Act and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000, in default, to suffer R/I for 2 years for the offences committed under Section 302, IPC and also to undergo R/I for 3 years for the offences committed under Section 27 of the Arms Act and directing that both the sentences would run concurrently. 2. The prosecution case as revealed from the prosecution story is that on 19.3.1998 at about 8.05 PM, on receiving information that some extremists attacked the house of Sudhan Debbarma (deceased) of Demdum, the Officer-in-Charge of Fatikroy PS made GD Entry No. 661 land rushed to the house of Sudhan Debbarma, where at about 9.45 PM, a written FIR was lodged by Sri Habiram Debbarma (PW1) stating inter alia that on that day at about 7.15 PM, while his father Sudhan Debbarma was sitting with his younger brother and sister inside their house, some persons entered their hut by kicking open the door and fired at his father and as a result of which his father died on the spot. In the FIR, it has further been mentioned that the miscreants were about 4/5 in numbers armed with modern weapons, out of which one was Sahadeb Debbarma (who died subsequently) and another was Mangal Singh Debbarma (Appellant herein). On receipt of the said FIR, the police registered Fatikroy PS Case No. 18/98 under Section 457 / 302 / 34, IPC read with Section 27 of the Arms Act and started investigation. During investigation, the statements of the witnesses were recorded under Section 161, Code of Criminal Procedure, few articles were seized and the dead body of Sudhan Debbarma was sent for post mortem examination, the report of which was also submitted by the concerned doctor. On completion of investigation, the investigating agency submitted charge-sheet under Section 302 / 34, IPC read with Section 27 of the Arms. Act against both the accused persons, namely Mangal Singh Debbarma (Appellant herein) and Sahadeb Debbarma, who died before committal. On completion of investigation, the investigating agency submitted charge-sheet under Section 302 / 34, IPC read with Section 27 of the Arms. Act against both the accused persons, namely Mangal Singh Debbarma (Appellant herein) and Sahadeb Debbarma, who died before committal. Since the offences against the Appellant were exclusively triable by the Sessions court, he was committed to the Court of Sessions under the provisions of Code of Criminal Procedure. The learned Sessions Judge, thereafter on 4.1.2002, framed charge against the present Appellant under Section 302 / 34, IPC and also under Section 27 of the Arms Act. The charge was read over and explained to the Appellant, to which he had pleaded not guilty and claimed to be tried. 3. The prosecution, in order to bring home the charges against the Appellant, produced 19 witnesses before the learned Sessions Judge, out of whom Sri Thakurbabu Debbarma (PW6), Sri Bisnuram Debbarma (PW8). Smt. Puspati Debbarma (PW9), Sri Dhaniram Debbarma (PW10), Sri Akhil Debbarma (PW11) and Sri Sudhanya Debbarma (PW12) were tendered witnesses, i.e., the prosecution tendered them for cross-examination, during the course of trial without examined-in-chief first and the defence declined to cross-examine them. The prosecution examined 2(two), witnesses, who were present at the place of occurrence, i.e., the widow of the deceased Smt. Sorojini Debbarma (PW2) and the son of the deceased Sri Bisnu Kr. Debbarma (PW13). The other PWs include the first informant Sri Habiram Debbarma (PW1); Dr. Dilip Kr. Das (PW14); who conducted the autopsy on the dead body; Sri Maniklal Dey (PW18); and Sri Parg Roy (PW19). According to the prosecution, Smt. Sorojini Debbarma (PW2) and Sri Bisnu Kr Debbarma (PW 13) were the witnesses to the occurrence. The prosecution, in course of the trial, has proved the inquest report; the seizure lists by which various articles including the Kupi Batti (Kerosene lamp) were seized; the GD Entry No. 661; the hand sketch map along with the index; the challan for sending the dead body for post mortem examination; and the post mortem report, which were exhibited. The excerpt of the statements of Sri Narendra Debbarma (PW3), who was declared hostile, recorded under Section 313, Code of Criminal Procedure was also exhibited during the course of trial. After recording the evidences of the prosecution witnesses, the statement of the accused under Section313, Code of Criminal Procedure was recorded by the learned trial court. The excerpt of the statements of Sri Narendra Debbarma (PW3), who was declared hostile, recorded under Section 313, Code of Criminal Procedure was also exhibited during the course of trial. After recording the evidences of the prosecution witnesses, the statement of the accused under Section313, Code of Criminal Procedure was recorded by the learned trial court. On being asked, the accused declined to examine any defence witnesses. The learned Sessions Judge, upon appreciation of the evidences on record, recorded the conviction as aforesaid. Hence the present appeal. 4. We have heard Mr. N. Majumder, learned Counsel for the Appellant as well as Mr. D. Sarkar, learned P.P., Assam. 5. Mr. N. Majumder, learned Counsel for the Appellant, referring to the deposition of the witnesses examined by the prosecution in support of the charges, has submitted that the prosecution having failed to examine any independent and reliable witnesses in support of the charges, it is unsafe to record the conviction only on the basis of the evidences of the most interested witnesses namely PW2 and PW3, who are the widow land the son, respectively, of the deceased, they being related, there is every possibility of falsely implicating the Appellant in the crime. According to Mr. Majumder, the widow of the deceased in any case cannot be the witness to the occurrence, she admittedly being not present in the room where her husband was killed as she in her deposition has stated that she was in the kitchen at the relevant point of time. Mr. Majumder has further submitted that the PW2 cannot see the occurrence, as there was a mud bamboo wall between the kitchen and the room where her husband was killed. That apart, the PW2 in her deposition before the court has admitted that she did not disclose the name of the Appellant to the PW1 (Habiram Debbarma), who came to their house on hearing the gun shot, and had the Appellant been involved she would have disclosed the name of the Appellant to the PW1, according to Mr. Majumder. It has also been submitted that the Appellant has been falsely implicated in the offence by the prosecution though he is not at all involved. Mr. Majumder. It has also been submitted that the Appellant has been falsely implicated in the offence by the prosecution though he is not at all involved. Mr. Majumder, therefore submits that the evidence of PW2 cannot be relied upon for the purpose of recording the conviction as she cannot by any stretch of imagination be termed as witness to the occurrence. 6. Referring to the deposition of PW13 (Sri Bisnu Kr Debbarma), it has been submitted that if is evident from his deposition that on the date of recording his evidence, i.e., on 4.2.2002, he was 15 years old and, therefore, at the time of occurrence, i.e., on 19.3.1998, he was about 11 years old. According to Mr. Majumder, he being a child witness, his testimony also cannot be relied upon for the purpose of recording the conviction without there being any corroboration by any independent witness. Mr. Majumder further submits that the court should be very cautious in accepting the evidence of a child witness and their deposition cannot be recorded without first testing that he understands that it is his duty to speak the truth and he has sufficient understanding to justify his evidence being heard and also understands the questions put to him and give rational answers to the questions, which has not been done in the instant case. It is submitted that because of the tender age of PW13, he can be easily taught the stories which he believes to be true and there is always a possibility of being influenced by others and as such, his evidence can not be relied upon at all for the purpose of recording the conviction. According to Mr. Majumder, the independent witness namely Sri Narendra Debbarma (PW3) though was examined by the prosecution in support of the charges, did not support the prosecution story. It has further been submitted by the learned Counsel that the daughter of the deceased, who according to the prosecution saw the occurrence, has been withheld from the court, which creates doubt on the prosecution story. Mr. Majumder, therefore, submits that the judgment of conviction recorded by the learned court below needs to be set aside and the Appellant is entitled to the acquittal from the charges levelled against him. 7. Mr. Mr. Majumder, therefore, submits that the judgment of conviction recorded by the learned court below needs to be set aside and the Appellant is entitled to the acquittal from the charges levelled against him. 7. Mr. D. Sarkar, learned P.P., supporting the judgment of conviction recorded by the learned Sessions Judge, has Submitted that the prosecution has proved the charges against the Appellant beyond all reasonable doubt by examining two eyewitnesses, namely, PW2 & PW13, the widow and the son, respectively of the deceased. According to Mr. Sarkar, there is absolutely no material discrepancy in the evidences of the prosecution witnesses and the defence also could not bring out any discrepancy, either with their statements under Section 161, Code of Criminal Procedure or during the course of the trial. It has further been submitted that as because the PW2 & PW13 are the related witnesses their evidence cannot be brushed aside on that count alone as they were the persons present at the time of occurrence which happened around 7.15 PM in such a village where the villagers do not normally come out of the home after the dusk and prefer to remain inside, more so when that area was a terrorists infested area at the relevant point of time. According to the learned public prosecutor, though the daughter of the deceased was the other witness to the occurrence, apart from the PW2 & 13, no fault can be found for not examining the daughter, who is a child witness, when the other witnesses to the occurrence have been examined by the prosecution to bring home the charges levelled against the Appellant. 8. Referring to the contention about the reliability of the evidence of PW13 on the ground of child witness, it has been submitted that even, a witness of tender age is not incompetent to depose before the court, in view of the provisions contained in Section 118 of the Evidence Act. It is submitted that in case of a witness of tender age, the court should, before, recording the evidence of such witness, satisfy itself about the capability of such witness of understanding the questions and giving rational answers to the questions put to him. In the instant case, according to Mr. It is submitted that in case of a witness of tender age, the court should, before, recording the evidence of such witness, satisfy itself about the capability of such witness of understanding the questions and giving rational answers to the questions put to him. In the instant case, according to Mr. Sarkar, at the time of recording the evidence of PW13, his age was 15 years and, therefore, he was not of tender age and as such, the credibility of PW13 cannot be discredited on the ground of not putting the preliminary questions to him to test whether he was capable of giving rational answers or not. Mr. Sarkar further submits that the PW13 was subjected to cross-examination by the Appellant without challenging his capability of deposing before the court and giving rational answers to the questions put to him. But the fact remains that the capability of PW13 of giving rational answers to the questions put to him has never been challenged by the defence, submitted by the learned Public Prosecutor. 9. Mr. Sarkar further submits that the contention of the learned Counsel for the Appellant that as PW2 who was admittedly in the kitchen could not have see the occurrence which took place in the other room as there was a mud bamboo wall between the two rooms cannot be accepted as Narendra Debbarma (PW3), who has been declared as hostile, during his cross-examination by the defence had admitted that the kitchen room and the room where the occurrence took place, were separated by a bamboo fencing only and therefore one can see what is happening in the adjacent room through such bamboo fencing. That apart, the sketch map reveals that there was an open door between the two rooms through which one can see the occurrence took place in the room from the kitchen room. Mr. Sarkar, therefore, submits that the judgment of conviction has rightly been recorded by the learned trial court and hence the appeal deserves to be dismissed. 10. We have considered the rival submissions of the learned Counsel of the parties and also perused the evidences on record. The prosecution examined Dr. Dilip Kr. Das (PW14), who earned out the post mortem examination on the dead body of Sudhan Debbarma on 20.3.1998 and submitted the report, which has been exhibited as Ext.P/5. 10. We have considered the rival submissions of the learned Counsel of the parties and also perused the evidences on record. The prosecution examined Dr. Dilip Kr. Das (PW14), who earned out the post mortem examination on the dead body of Sudhan Debbarma on 20.3.1998 and submitted the report, which has been exhibited as Ext.P/5. The doctor in his deposition has narrated the injuries found on the person of the deceased, namely- 1. One entry wound oval shape over stem anterior of the chest measuring 1/2" x 1/2" x bone deep. 2. Entry wound round shape over posterior aspect of the left shoulder measuring 1/2" x 1/2" x bone deep. 3. One entry wound round shape over posterior aspect of the left arm measuring 1/2" x 1/2" x bone deep. and opined that the cause of death was "due to severe shock following profuse blood loss and injury of the deep structures caused by gun shot injuries" and which is homicidal in nature. 11. The defence never challenged the prosecution story that Sudhan Debbarma succumbed to the gun shot injuries, which is homicidal in nature. The prosecution could therefore prove that the death of Sudhan Debbarma is homicidal. The question, which requires our consideration is who is the author of such crime and whether the prosecution could bring home the charges levelled against the Appellant beyond all reasonable doubt. 12. The prosecution in order to bring home the charges levelled against the Appellant examined two witnesses claiming to be the witnesses to the occurrence, namely, Smt. Sorojini Debbarma (PW2), the wife of the deceased, and Sri Bisnu Kr Debbarma (PW13), the son of the deceased. The PW2 in her deposition in clear terms has seated that while she was in the kitchen, two persons entered into their hut and fired at her husband, who died on the spot. She has further stated that she could identify the miscreants as the Appellant and one Sri Sahadeb Debbarma with the help of a Kupi Bati, which was burning at that point of time. According to this witness, her son Habiram Debbarma (PW1) who was at that point of time in the house of Narendra Debbarma (PW3) came to the house on hearing the sound of the gun shot and found his father lying dead add thereafter lodged the FIR. According to this witness, her son Habiram Debbarma (PW1) who was at that point of time in the house of Narendra Debbarma (PW3) came to the house on hearing the sound of the gun shot and found his father lying dead add thereafter lodged the FIR. She has further deposed that when the police came to their house she narrated the occurrence to his son saying that she could recognize the Appellant and Sahadeb Debbarma, which she did not disclose to her son Habiram Debbarma immediately on his coming to the house, out of fear. This witness though was cross-examined, no contradiction could be brought out by the defence. This witness has also denied the suggestion put to her by the defence that she could not recognize the accused persons with the help of the Kupi Bati. This witness though has further stated that the Kupi Bati was not seized by the investigating officer, during her cross-examination, in fact the same was seized by the investigating officer vide seizure memo being Ext.P/4 to which Sonaram Debbarma (PW7) was the witness. 13. We do not find any material contradiction in the deposition of this witness. It is not unnatural in not disclosing the names of the assailants to her son Habiram Debbarma (PW1), who was around 11 years old at the time of occurrence, immediately on his coming to the house on hearing the gun shot, out of fear. She, however, disclosed the names on feeling secured that no harm would be caused, as soon as the police came to the place of occurrence. Habiram Debbarma (PW1), accordingly, disclosed the names of the assailants in the FIR lodged. As because this witness did not disclose the names of the assailants to Habiram Debbarma immediately on reaching home, her testimony cannot be discarded, for the reasons recorded above. The submission of the learned Counsel for the Appellant that there being a mud bamboo wall between the kitchen room and the room in which Sudhan Debbarma was killed, the PW2 could not have seen the occurrence, also cannot be accepted in view of the fact that PW3, who has been declared hostile, during cross-examination by the defence has stated that the kitchen is separated from the living room by a bamboo fencing. It has also come out in the evidence of prosecution witnesses as well as from the sketch map with index (Ext.P/9 and P/10) that there is a wooden door in such fencing. It is quite natural that PW2 could see the occurrence from the kitchen of such a small village hut. Therefore, the evidence of PW2 cannot be said to be unreliable and untrustworthy. 14. PW13 (Bisnu Kr Debbarma) who was about 11 years old at the time of occurrence, is the son of the deceased. This witness in his deposition has stated that while he was studying by sitting in front of his father in the room, the Appellant and another person came inside and fired at his father He has further stated that he could recognize the assailants with help of the light of the Kupi Bati. This witness could also identify the Appellant in the dock. This witness was cross-examined thoroughly by the defence, but he was not challenged on his statement relating to his presence at the time of occurrence and identification of the assailants with the help of the light of the Kupi Bati, except putting a suggestion that he could not recognize the Appellant on that night, which, however, he denied. The credibility of this witness has been challenged by the learned Counsel for the Appellant, mainly on the ground that he being a child witness his testimony ought not to have been recorded by the learned trial court without testing his capability of giving rational answers to the questions and, therefore, his evidence cannot be relied upon for recording conviction. 15. Section 118 of the Indian Evidence Act, 1872 provides who may testify. For sake of convenience, Section 118 is reproduced below: 118. All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 16. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 16. It appears from the said provision of law that a person of tender age is not competent to testify, but the court before recording the testimony of the witnesses of tender age has to satisfy itself that such witness is not prevented from understanding the questions put to him or from giving rational answers to those questions. No precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they do not have sufficient understanding. It is also most possible to lay down the precise rule, respecting the degree of intelligence and knowledge, which will render a child as a competent witness. It all depends upon the facts and circumstances of each case and also the age of such witness. A witness of 15 years old, who going by his testimony as recorded by the learned court below and the answer given to the questions put to him during the cross-examination, cannot be taken to be of tender age within the meaning of Section 118 of the Evidence Act and consequently, his deposition cannot be discarded for not ascertaining by the court his capability to give rational answers to the questions put before recording his testimony. In the instant case, the defence never challenged the capability of PW13 of giving rational answer to the questions put. This witness has given rational answers to the questions put by the defence during cross-examination and hence, his deposition cannot be excluded or refused to be relied upon while ascertaining the culpability of the Appellant to the crime. 17. The other ground on which the conviction of the Appellant has been challenged by the learned Counsel for the Appellant is that the conviction is solely based on the deposition of the two witnesses namely PW2 and PW13 and their testimony cannot be relied upon, they being the related and as such most interested witnesses. The occurrence in the present case took place at about 7.15 PM in a village where the villagers prefer to remain indoor after the dusk, more so when the area is infested by terrorists at the relevant point of time. The occurrence in the present case took place at about 7.15 PM in a village where the villagers prefer to remain indoor after the dusk, more so when the area is infested by terrorists at the relevant point of time. It is evident from the prosecution story that at the place of occurrence, there was none in the hut except the widow (PW2), one son (PW13) and one daughter, who has not been examined. There is no other independent witness present at the time of occurrence. The non-examination of the daughter, who was also present shall, however, not discredit the prosecution story as the prosecution has examined two eyewitnesses to the occurrence namely PW2 and PW13. Admittedly, the sister of PW13 was even younger to him and, therefore, no fault can be found with the prosecution for non-examination of that little girl when two other witnesses who saw the occurrence were examined. As because the witnesses are related, that itself cannot be a ground to discard their evidences. Had the other independent witnesses been present, the court could have sought corroboration of the testimony of the related witnesses with those, but in the instant case no other witness was present at the place of occurrence and hence, it cannot be said that the evidence of PW2 and PW13 cannot be relied upon for the purpose of recording the conviction. 18. As discussed above, the PW2 and PW13 have given a vivid description about the commission of the crime by the Appellant. There is absolutely no material contradiction worth the name in their testimony, which will affect the substratum of the prosecution story. The prosecution therefore, in our considered opinion, could bring home the charges levelled against the Appellant beyond all reasonable doubt. 19. Before parting with the record, we would like to observe that in the instant case the prosecution tendered 6(six) witnesses, namely, PW6 and PW8 to PW12 for cross-examination by the defence, without they being examined-in-chief. The practice of tendering a witness for cross-examination by the defence, without recording his statement in examination-in-chief is not consistent with the provisions of Evidence Act. Section 138 of the Evidence Act provides that a witness shall be first examined-in-chief, then cross-examined, if the adverse party so desires and then, if the party calling him so desires, may be re-examined. The practice of tendering a witness for cross-examination by the defence, without recording his statement in examination-in-chief is not consistent with the provisions of Evidence Act. Section 138 of the Evidence Act provides that a witness shall be first examined-in-chief, then cross-examined, if the adverse party so desires and then, if the party calling him so desires, may be re-examined. It does not provide for tendering a witness for cross-examination without such witness examined-in-chief first. When a witness is not examined-in-chief first there is nothing in relation to which he is to be cross-examined. He cannot be cross-examined on the basis of his statement recorded by the investigating agency under Section 161, Code of Criminal Procedure, which is the only statement available, the same being not admissible in evidence and which can only be proved for the purpose of contradiction. Tendering a witness for cross-examination without examined-in-chief amounts to giving up the witness by the prosecution. The prosecution, therefore, cannot be allowed to take advantage of not cross-examining such witness by the accused. In this case, however, the prosecution has not relied upon these tendered witnesses and could prove the charges levelled against the Appellant beyond all reasonable doubt, as discussed above. 20. In view of the aforesaid discussion and the findings recorded above, we have no hesitation to hold that the learned court below has rightly recorded the conviction against the Appellant and sentenced him as aforesaid. The appeal, therefore, is dismissed being devoid of any merit. Appeal dismissed