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2008 DIGILAW 794 (GAU)

Dipak Nath v. State of Tripura

2008-11-14

BIPLAB KUMAR SHARMA, MAIBAM B.K.SINGH

body2008
JUDGMENT 1. This appeal is directed against the judgment dated 17.06.2000 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar, in Sessions Trial No. 01 (NT/D) of l998, convicting the Appellants under Sections 302/201 read with Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life for the offence of murder and also to suffer another two years imprisonment for causing disappearance of evidence of offence under Section 201 IPC. 2. Heard Mr. A.C. Bhowmik, learned Counsel appearing for the Appellants and Mr. D. Sarkar, learned Public Prosecutor assisted by Mr. B.R. Das Roy, learned Advocate for the State-Respondent. 3. The prosecution case, in brief, is that on 05.06.1996 at about 18.15 hours, one Rashbehari (P.W. No. 9) reported to the Panisagar Police Station that his daughter, namely, Suprava Nath, had love affairs with the accused-Appellant No. 1 and she stayed at the house of the accused-Appellant No. 1 but both were found missing from the house since last night and could not trace out, as informed by the accused-Appellant No. 2. On basis of the said missing report, the O/C started investigation to trace out the missing persons. During the course of such investigation, the accused-Appellant No. 2 confessed to the O/C, Panisagar P.S. that the victim, Suprava Nath, was murdered a few days' back and her dead body was buried in an abandon well at Betangi. The accused-Appellant No. 2 agreed to show the place where the dead body was buried. Thereafter, the accused-Appellants led the police together with the Executive Magistrate and others to a place at Betangi, wherefrom die dead body of the victim was disinterred at the pointing of the accused-Appellant No. 2, in their presence. The police also seized one spade, a lamp, a bamboo etc., which the accused-Appellants used at the commission of the offence. The Officer-in-charge of Panisagar P.S., after returning to the police station, registered a suo-moto case being FIR No. 29 of 2006 under Sections 302/201/120B of IPC against the accused persons and investigated the case. After investigation, charge-sheet was submitted against six accused persons including the Appellants. The learned trial Court, having found a prima facie case, framed charges against the accused-persons under Sections 302/201 read with 34 of IPC to which they pleaded not guilty and claimed to be tried. 4. After investigation, charge-sheet was submitted against six accused persons including the Appellants. The learned trial Court, having found a prima facie case, framed charges against the accused-persons under Sections 302/201 read with 34 of IPC to which they pleaded not guilty and claimed to be tried. 4. That, to bring home the charges, the prosecution examined as many as 13 witnesses and no defence witness was produced. During the trial, four accused persons were acquitted under Section232 of the Code of Criminal Procedure. At the conclusion of the trial, the learned trial court convicted the Appellants under Sections 302/201 read with 34 of IPC and sentenced them to suffer imprisonment for life under Section 302 of IPC and also sentenced them to suffer two years imprisonment under Section 201 of IPC. 5. The learned Counsel appearing for the Appellants contended that the Appellants were convicted basing on unreliable evidence, the entire investigation suffers from partiality and that the impugned judgment and conviction was passed on sentiment without any evidence on record. The prosecution completely failed to prove the charges levelled against the Appellants but the learned trial court convicted the accused persons on mere surmise and conjecture. The learned Public Prosecutor, on the contrary, submitted that the accused-Appellants confessed their guilt, the dead body of the victim was disinterred at their instance and the prosecution has proved the charges beyond all reasonable doubt. The judgment and order of conviction suffers from no infirmity and illegality 6. Upon hearing the rival submissions of the learned Counsel appearing for the parties, we have anxiously scanned the evidence on record to satisfy ourselves whether the prosecution has proved the charges levelled against the accused-Appellants. 7. From the evidence on record, it is evident that there is no direct evidence to the occurrence. The learned trial court convicted the Appellants on the basis of the circumstantial evidence as well as the confessional statement said to have been made by the accused-Appellants. 8. In a catena of decisions, it has been held that in the case of conviction based on circumstantial evidence, each circumstance relied upon must be established by cogent, succinct and reliable evidence and such circumstances must be of such nature which cannot be explained on any hypothesis except the guilt of the accused. 8. In a catena of decisions, it has been held that in the case of conviction based on circumstantial evidence, each circumstance relied upon must be established by cogent, succinct and reliable evidence and such circumstances must be of such nature which cannot be explained on any hypothesis except the guilt of the accused. The circumstances must be of an incriminating character, there must be a complete chain of circumstances pointing only to the guilt of the accused. This High Court in Ramen Hazarika v. State of Assam 1998 (3) GLT 270: (1999) 1 GLR 442, laid down the principles governing the law of circumstantial evidences as follows: (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 the guilt of the accused; and (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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused 9. The prosecution case appears to be that a village meeting was held in the house of P.W. No. 2 concerning the relationship between the deceased and the accused-Appellant No. 1 and in the said meeting it was decided that the accused-Appellant No. 1 should take the victim at his house. No prosecution witness could say exactly when the alleged meeting was held and whether the accused-Appellant No. 1 was present in the said meeting. The P.W. Nos. 8 and 9, the mother and father of the deceased stated that the meeting was held about 7/10 days before the death of the victim. P.W. No. 8, the mother of the deceased, stated that in the said meeting the accused-Appellant No. 1 confessed his guilt and thereafter he had taken her daughter to his house. However, P.W. No. 8 did hot say the contents of the alleged confessional accused-Appellant No. 1. Admittedly the dead body was disinterred in a partially decomposed condition on 22.06.1996 and the postmortem examination over the dead body was done on the same day. As per postmortem examination report, marked Exbt. P/2 and the statement of Dr. However, P.W. No. 8 did hot say the contents of the alleged confessional accused-Appellant No. 1. Admittedly the dead body was disinterred in a partially decomposed condition on 22.06.1996 and the postmortem examination over the dead body was done on the same day. As per postmortem examination report, marked Exbt. P/2 and the statement of Dr. Jiteshwar Ahir(P.W. No. 3), the approximate time of death was before 10 days of the postmortem examination, i.e., the death was occurred before 12.06.1996. Whereas it is on record that the P.W. No. 9, father of the victim, lodged the missing report on 05.06.1996. Thus, the statement of the prosecution witnesses that the village meeting was held before 7/10 days before the-death/incident appears to be doubtful. 10. However, P.W. Nos. 1 and 10, who are the husband and wife and close relatives of the deceased, stated in their evidence that their house situates adjacent to the house of the accused-persons. They had seen the victim living in the house of the accused-Appellant No. 1. P.W. No. 1 stated that when he saw the victim in the house of the accused-Appellants, on the previous day of her becoming traceless, she was wearing a frock. Their statements is not supported by any independent witness. 11. We have also carefully scrutinized the statement of P.W. Nos. 3, 4, 5, 11 and 13. P.W. No. 4, Sri Rashik Goswami, a Photographer by profession, stated that on 22.06.1996 he went to Betangi with the Police Officer of Panisagar and others. On reaching a tilla and at the pointing by some persons, a dead body of a female was taken out from under ground which he photographed. He developed the copy of the photograph and handed over with negative to the Darogababu. P.W. No. 5, Sri Satyanarayan Baspar, stated that one day while he was serving in Panisagar Primary Health Center, he was taken to Betangi by police of Panisagar. They were taken to a tilla land covered by jungles Where a spot was pointed out by a person who came with the police. After digging out the earth from the said spot, a dead body of a female was taken out from a bag. They were taken to a tilla land covered by jungles Where a spot was pointed out by a person who came with the police. After digging out the earth from the said spot, a dead body of a female was taken out from a bag. P.W. No. 11, Sri Gopika Ranjan Das, an Executive Magistrate, stated that on 22.06.1996, he went to Betangi to disinter the dead body of one Suprava Nath and in his presence the dead body was disinterred. The police prepared the inquest report and other relevant documents in his presence and he gave his endorsement over the inquest report. In his cross-examination he stated that the dead body was partially decomposed and was wearing frock and panty. 12. P.W. No. 13, the Investigating Officer, stated that the accused-Appellant No. 2 confessed to him during interrogation that they had committed the murder of the victim in the night of 4/5.06.1996, they put the dead body in a jute bag and kept the body in a jungle of Betangi in a hole. He recorded the statement of accused-Appellant No. 2 in G.D. Entry No. 664 dated 22.06.1996. Thereafter he submitted requisition to the Executive Magistrate and Medical Officer for disinterring the dead body. The Appellant No. 2 led them to the place from where the dead body was disinterred in presence of the Executive Magistrate and others. 13. P.W. No. 3, Dr. Jiteswar Ahir, who prepared the postmortem report marked Exbt. P/2, stated that on 22.06.1996 he conducted the postmortem examination on the dead body of Supraya Nath. The dead body was found partially decomposed, foetus of approximate 6 to 8 months of age was seen, the cause of death was asphyxia due to throatting and homicidal in nature and the approximate time of death was more than ten days. 14. That, what has emerged from above statement, is that on 22.06.1996 the dead body of the victim, Suprava Nath, was disinterred from a place at Betangi in presence of the witnesses in a partially decomposed condition from inside a bag. The postmortem examination on the dead body was conducted on the same day, the dead body was partially decomposed and she was carrying pregnancy of about 6 to 8 months at the time of postmortem examination and die was murdered about ten days before. 15. The postmortem examination on the dead body was conducted on the same day, the dead body was partially decomposed and she was carrying pregnancy of about 6 to 8 months at the time of postmortem examination and die was murdered about ten days before. 15. That, the entire prosecution case rests on the statement of the P.W. No. 13, the investigating officer of the case, who stated that he visited Betangi and interrogated Brajendra Nath (accused-Appellant No. 2) and brought him at the police station and after thorough interrogation he came to know that the victim was murdered in the night of 4/ 5.06.1996. The accused-Appellant No. 2 confessed that he and his son Deepak Nath (accused-Appellant No. 1) murdered the victim and kept the body in a jungle of Betangi in an old hole and he recorded the statement in G.D. Entry No. 664 dated 22.06.1996. He further stated that after recording the statement of accused Brajendra Nath he submitted requisition to an Executive Magistrate and Medical Officer with a view to disinterring the dead body of the victim. 16. It is well settled that any confession or statement made to the police is inadmissible in law and such statement cannot be used or proved as against the person who gave such statement in view of the provision of Sections 25 and 26 of the Indian Evidence Act, 1872. However, Section 27 of the Indian Evidence Act is an exception to the above provisions and such portion of the statement or confession made to the police which, relates distinctly to the discovery of fact, is admissible and may be proved as against the disclosure. It has been held in a catena of decisions that in order to prove the confessional statement made by any accused person to the police leading to the discovery of fact, such statement must be reduced into writing by the police officer to whom the confession was made, for its admissibility in evidence under the provision of Section 27 of the Indian Evidence Act, 1872. In the absence of such recorded statement leading to the discovery of feet, the provisions of Section 27 of the Evidence Act cannot be attracted. In the absence of such recorded statement leading to the discovery of feet, the provisions of Section 27 of the Evidence Act cannot be attracted. The police officer, to whom such statement leading to the discovery of the fact was made, is also required to reproduce the contents of the statement made by the accused persons while giving statement before the court. 17. Now, reverting to the facts of the case, we have carefully perused the records and the exhibited documents. The prosecution did not produce the alleged recorded confessional statement of the accused-Appellant No. 2 during the course of trial. P.W. No. 13 in his evidence stated that he recorded the confessional statement of the accused-Appellant No. 2 in G.D. Entry No. 664 dated 22.06.1996 but no copy of the G.D. Entry No. 664 dated 22.06.1996 is on record. Besides, P.W. No. 13 also failed to reproduce the contents of the alleged confessional statement while giving his statement before the court. The statement of the P.W. No. 13 that the accused Brajendra Nath led the police party to the place of occurrence and at his pointing they disinterred the dead body in presence of the Executive Magistrate and witnesses does not come within the purview of the Section27 of the Evidence Act. Such act of the accused-Appellant No. 2 leading to the discovery of the dead body of the victim, at the most can be considered as evidence of his conduct. It shows that the prosecution failed to prove that accused-Appellants gave statement to the police leading to the discovery of the dead body of the victim. 18. That, the learned Counsel appearing for the Appellants further contended that the entire prosecution case is a tainted one and the impugned judgment and order of conviction based on such investigation is liable to be quashed. According to the learned Counsel, the entire investigation was conducted in an unusual manner which is unknown to law. The learned Counsel drew the attention of this Court to the FIR marked Exbt. P/9 and the statement of the P.W. No. 13. There is not dispute that P.W. No. 13 is the informant, who lodged a written report on 22.06.1996, he himself registered the same as FIR No. 29/1996, investigated the case and submitted the charge-sheet against the accused-Appellants. The learned Counsel drew the attention of this Court to the FIR marked Exbt. P/9 and the statement of the P.W. No. 13. There is not dispute that P.W. No. 13 is the informant, who lodged a written report on 22.06.1996, he himself registered the same as FIR No. 29/1996, investigated the case and submitted the charge-sheet against the accused-Appellants. It appears to be very unusual and unknown to the criminal investigation and it goes against the principle of impartiality as regards the investigation is concerned. In Megha Singh v. State of Haryana reported in AIR 1995 SC 2339 , the Hon'ble Supreme Court disapproved such practice adopted in the criminal investigation and acquitted the accused. In the said case the same investigating officer was the very person who lodged the complaint which was treated as the FIR arid investigated the case. The Supreme Court observed that where the investigating officer happens to be the complainant that it would be perhaps difficult to uphold the position that the investigation was impartial. An impartial investigation is the essential bed-rock for any successful prosecution. The Supreme Court pointed such procedures adopted as a legal infirmity or an impediment. Such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. (also see. State of Kamataka v. Sheshadri Shetty and Ors.2005 Crl.L.J. 377). In view of the above proposition of law, we have no option except to treat the entire investigation as a tainted one. 19. That, though the incident involved in the present case is a very serious in nature, however, for the reasons and discussions made hereinabove and having regard to the settled propositions of law, we have no alters native except to acquit the accused-Appellants on the benefit of doubt. Accordingly, we do. Consequently, the impugned judgment and order of conviction dated 17.06.2000 passed by the learned Additional Sessions Judge, North Tripura, Dhamianagar, in Sessions Trial No. 01(NT/D) of 1998, is set aside. The appeal stands allowed and the accused-Appellants are set at liberty. 20. However, before parting with this judgment, we like to direct the prosecuting authorities to take all precautions and legal advice, if necessary, in taking up any criminal investigation so as to avoid from repeating such error in future.