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2008 DIGILAW 795 (GAU)

Pradip Sarkar v. State of Tripura

2008-11-14

BROJENDRA PRASAD KATAKEY, MAIBAM B.K.SINGH

body2008
JUDGMENT B.P. Katakey, J. 1. The criminal investigation was set in motion on lodging of an FIR by Swapan Rakshit (PW1) on 14.1.1998 at about 10.55 A.M. with the Officer-in-Charge of Airport Police Station alleging that on the night of 14.1.1998 at about 2 O'clock, Pradip Sarkar, Dilip Sarkar, Dwipak Sarkar (appellants herein) and one Biswajit Sarkar (who died during the course of investigation) went to his house and assaulted his mother, younger brother, sister and thereafter in the morning at about 9.30 A.M. when he came to Ushabazar to have his hair cut, he saw Biswajit Sarkar, Pradip Sarkar, Dilip Sarkar and Dwipak Sarkar stabbing his younger brother Raju Rakshit with dagger in front of Bishu Debnath's grocery shop and when he proceeded forward they wanted to stab him also. It has further been alleged in the FIR that his brother received grievous injuries due to the unified attack by the assailants and who though was brought to the GB Hospital, he succumbed to his injuries. The said FIR was reduced to writing by the Officer-in-Charge of Airport Police Station in GB Hospital who came there on receiving the information about the stabbing incident and after making GD entry, which was thereafter registered in the Police Station at about 1.45 P.M. on that day itself as Airport PS Case No. 2/98 under Section 302/34 IPC. The investigation was entrusted to the Sub-Inspector of Police, namely Satya Ranjan Das (PW9). 2. During Investigation the investigating officer recorded the statements of a number of persons, including that of the PW1 to PW9, held the inquest, sent the dead body for post mortem examination, seized a number of articles vide different seizure memos and also prepared the hand sketch map. The investigating agency, on completion of the investigation, filed the charge sheet against the appellants under Section 302/34 IPC, as in the meantime Biswajit Sarkar had died. 3. The investigating agency, on completion of the investigation, filed the charge sheet against the appellants under Section 302/34 IPC, as in the meantime Biswajit Sarkar had died. 3. On being committed to the Court of Session, the learned Sessions Judge, West Tripura at Agartala framed charges under Section 302/34 IPC against the appellants on 23.6.1999 which reads as follows: That all of you along with one Biswajit Sarkar (now dead) on 14.1.1998, at about 09:30 hours at Usha Bazar about 3 k.m. south east from Airport Police Station in furtherance of common intention of you all committed murder by intentionally or knowingly causing the death of Raju Rakhit S/O Pradut Rakhit and thereby committed an offence punishable under Section 302 of the IPC read with Section 34 of the IPC and within my cognizance. The charge was ready over and explained to them, to which they had pleaded not guilty and claimed to be, tried. 4. During the course of the trial, the prosecution in order to bring home the charges against the appellants, examined 9 witnesses, proved the inquest report(Ext.P/2), two seizure lists (Ext.P/3 and P/4), challan sending the dead body for post mortem examination(Ext.P/5) and the sketch map along with the index (Ext.P/7 and P/8). The defence, through the investigating officer (PW9) proved the excerpt of the statements of Kumari Smriti Rakshit recorded under Section 161, Cr.PC (Ext.D/1). The prosecution examined Swapan Rakshit (PW1), brother of the deceased and Smriti Rakshit (PW2), the sister of the deceased, both of whom claimed to have seen the occurrence as well as Chaya Rakshit (PW3) the mother of the deceased; Parbati Deb (PW4), the maternal aunt of the deceased and Pradyut Rakshit (PW5), the father of the deceased, who are reported witnesses. The prosecution also examined Sri Uttam Bahadur (PW6), the constable who accompanied the dead body to the hospital for post mortem examination; Sri Bipul Gan Choudhury (PW7), the Officer-in-Charge of Airport PS who went to the hospital after making the GD entry and wrote the FIR; Dr Partha Sarathi Sutradhar (PW8), who conducted the post mortem examination; and Sri Satya Ranjan Das (PW9), the SI of police, who was the investigating officer. 5. The learned Sessions Judge, on completion of examination of the PWs, examined the appellants under Section 313, Cr.PC. The appellants, on being asked, declined to examine any defence witnesses. 5. The learned Sessions Judge, on completion of examination of the PWs, examined the appellants under Section 313, Cr.PC. The appellants, on being asked, declined to examine any defence witnesses. The learned Sessions Judge thereafter upon appreciation of the evidences on record, recorded the judgment of conviction by holding the appellants guilty of committing offence under Section 302/34, IPC and sentencing them to suffer R/I for life and to pay a fine of Rs. 10,000 each, in default, to suffer further imprisonment for three months each. All the appellants have been convicted under Section 302, IPC, in aid of Section 34, IPC for committing the murder. Hence the present appeal.. 6. We have heard Mr. S. Sarkar, learned Counsel for the appellants as well as Mr. A. Ghosh, learned P.P., Tripura. 7. Referring to the FIR lodged by PW1 after almost l1/2 hours from the time of incident as well as his deposition before the court, it has been submitted by Mr. Sarkar that there are grave discrepancies between the two versions of PW1, as in the FIR he has specifically stated that the appellants and Biswajit Sarkar inflicted dagger injuries on the person of Raju Rakshit, but in his deposition before the court he has changed his version by deposing that while Biswajit Sarkar stabbed his brother with a Kirich (dagger) while the appellants caught hold of his younger brother Raju Rakshit. It has further been submitted by the learned Counsel that though the PW1 has stated in his deposition before the court that on the previous night of occurrence there was an incident where the appellants and Biswajit Sarkar came to their house and assaulted his father and younger sister, so as to prove the motive and also the common intention of the appellants to commit the crime, such version has not been supported by the sister as well as by the father, who have been examined as PW2 and PW5, respectively and who in their deposition have not stated anything relating to the assault by the appellants on the previous night of occurrence. Referring to the cross-examination of PW1, the learned Counsel has also submitted that this witness has admitted that he never stated before the investigating officer, in his statement under Section 161, Cr.P.C. that the appellants caught hold of his brother while Biswajit Sarkar inflicted the stab injury. Referring to the cross-examination of PW1, the learned Counsel has also submitted that this witness has admitted that he never stated before the investigating officer, in his statement under Section 161, Cr.P.C. that the appellants caught hold of his brother while Biswajit Sarkar inflicted the stab injury. It has also been submitted that it has come out also in evidence of PW1 that at the time of occurrence many persons were present at the market place but the prosecution has made no attempt whatsoever to produce any independent witness who must have seen the actual occurrence and has produced only the related witnesses who are most interested being the close relatives. According to the learned Counsel, the deposition of PW1, in view of the aforesaid material contradictions cannot at all be relied upon. The learned Counsel further submits that the presence of PW1 at the place of occurrence is also doubtful as the PW2 has not stated about the presence of PW1 at that place. 8. Criticizing the conviction recorded by the leaned Sessions Judge by placing reliance on the deposition of PW2, the sister of the deceased, Mr. Sarkar, learned Counsel for the appellants has submitted that her testimony also cannot be believed as her version has not been supported by other PWs. According to Mr. Sarkar, PW1 in his evidence has also not stated about the presence of PW2 at the place of occurrence. It has further been submitted that there is no explanation as to why the PW2 came to the market. That apart, according to the learned Counsel, this witness in her statement under Section 161, Cr.P.C. did not state that the appellants caught hold of his brother and Biswajit Sarkar stabbed him. It has also been submitted that it is evident from the cross-examination of PW2 that another person namely Narayan Debnath was present at the place of occurrence and the defence in fact proved the statement of this witness recorded under Section 161, Cr.P.C. to demonstrate the presence of Narayan Debnath which has been exhibited as D/I and proved by the investigating officer. It is further submitted that the PW2 has not stated anything about the alleged incident occurred on the previous night of occurrence tough the PW1 claimed happening of such incident and also claimed that the appellants assaulted the PW2. 9. It is further submitted that the PW2 has not stated anything about the alleged incident occurred on the previous night of occurrence tough the PW1 claimed happening of such incident and also claimed that the appellants assaulted the PW2. 9. According to the learned Counsel, it is evident from the deposition of these two witnesses (PW1 and PW2) that it was Biswajit Sarkar who, according to them, had inflicted the dagger injuries on the persons of Raju Rakshit, which has duly been supported by the post mortem examination report and the allegation against the present appellants is that they caught hold of Raju Rakshit and then Biswajit Sarkar inflicted the dagger injuries. It is not the case that any of the appellants inflicted any dagger injuries but they were sought to be roped in aid of Section 34, IPC which, according to the learned Counsel, could not be proved by the prosecution through these witnesses. Mr. Sarkar has further submitted that the version of PW1 and PW2 about the involvement of the appellants in the commission of the offence cannot be believed as PW3, the mother of the deceased, who has been informed by PW2, in her deposition has stated that the appellants were merely present at the place of occurrence as has been informed by PW2 to her, though PW2 in her deposition has claimed that the appellants caught hold of their brother and Biswajit inflicted the stab injury. According to the learned Counsel, the PW3 has not supported the version of PW2 in that regard. Relating to the alleged incident of the previous night, the learned Counsel has submitted that this witness has given a different version saying that the appellants and Biswajit Sarkar came to their house and assaulted his husband which has, however, not been supported by her husband, namely, PW5 in his deposition. 10. Mr. Sarkar, learned Counsel, has further submitted that PW4 Parbati Deb, the sister of PW3, has supported the PW3 by deposing that PW2 has informed them that Biswajit Sarkar killed Raju Rakshit, but the appellants were merely present at the time of occurrence. The PW4, according to the learned Counsel, however, introduced a new story by saying that the appellants told Biswajit Sarkar to kill Raju Rakshit, which was, however, not the case of the prosecution as revealed from the deposition of PWs 1, 2 and 3. The PW4, according to the learned Counsel, however, introduced a new story by saying that the appellants told Biswajit Sarkar to kill Raju Rakshit, which was, however, not the case of the prosecution as revealed from the deposition of PWs 1, 2 and 3. Relating to the incident on the previous night, this witness has also given a different story saying that on the previous night though there was a quarrel between Biswajit and Raju and Biswajit came into the house of her elder sister PW3, the appellants were at the gate and it was Biswajit Sarkar who assaulted Raju in their house, which version has not been corroborated by any other PWs, submitted by the learned Counsel. It has further been submitted that during cross-examination the PW4 though has stated that in her statement under Section 161, Cr.P.C. it has been recorded that the appellants had instigated Biswajit to kill Raju as told by PW2, the learned trial court has recorded that such statement is not available in her statement recorded under Section 161Cr.P.C. Referring to the deposition of PW5, the father of the deceased, it has been submitted that, according to this witness, he was informed by his son Swapan Rakshit (PW1) about Biswajit Sarkar inflicting the stab injury on the person of Raju and guarding of the place by the appellants. Such statement, however, has not been supported by PW1 as he has never-stated in his deposition to that effect. According to the learned Counsel PW5 has introduced a new story by saying that the appellants guarded the place and Biswajit gave the dagger blow. This witness, relating to the incident of the previous night though has stated that the appellants and Biswajit assaulted his sister-in-law (PW4) and the daughter (PW2), they do not support such version in their deposition. The learned Counsel, therefore, submits that the testimony of PWs 3, 4 and 5 also cannot be relied upon for the purpose of recording conviction of the appellants under Section 302, IPC, in aid of Section 34, IPC, they having failed to prove the ingredients of Section 34, IPC and there being material contradiction in their testimony and not being corroborated by each other. 11. Mr. 11. Mr. Sarkar, further submits that according to PW7 he got the information relating to the stabbing injury and thereafter made GD entry being No. 399 dated 14.1.1998 and first went to the place of occurrence then to the GB hospital and prepared the inquest report and also sent the dead body of Raju Rakshit for post mortem examination, but it appears from the inquest report that the same was done in respect of another GD Entry being GDE No. 396 and it also appears from the post mortem examination report(Ext.P/6) that there was interpolation relating to the GDE number which was originally recorded as 396, but subsequently changed to 399. It has further been submitted that PW 7 during his cross-examination has admitted that he has, not produced the extract of the GDE before the learned trial court which according to the learned Counsel, creates doubt about the truthfulness of the prosecution story, as it may be that the Officer-in-Charge has withheld the same as it would have shown that the appellants were not at all involved. 12. Mr. Sarkar, referring to the aforesaid deposition of the prosecution witnesses, submits that the different witnesses have given different versions, which creates doubt about the truthfulness of the prosecution story and none of the prosecution witnesses could prove the common intention of the appellants so as to convict them under Section 302, IPC, in aid of Section 34. The learned Counsel submits that the appellants are, therefore, entitled to the order of acquittal. 13. Mr. A. Ghosh, learned P.P., per contra, referring to the deposition of PWs 1 and 2, the witnesses to the occurrence, has submitted that the prosecution could bring home the charge against the appellants beyond all reasonable doubt as these two witnesses have clearly stated that while the appellants caught hold of Raju Rakshit, the deceased, Biswajit Sarkar gave the dagger blow on the person of Raju and as a result of which, Raju Rakshit died. Mr. Ghosh further submits that their common intention to kill Raju Rakshit can be gathered from the incident of the previous night when the appellants along with Biswajit Sarkar went to the house of Raju Rakshit and assaulted his father (PW5) as well as the sister (PW2). Mr. Ghosh, therefore, submits that the judgment of conviction has rightly been recorded by the learned court below. 14. Mr. Ghosh, therefore, submits that the judgment of conviction has rightly been recorded by the learned court below. 14. As discussed above, the prosecution in order to bring home the charges leveled against the appellants examined 9 witnesses, including two witnesses who, according to the prosecution, have seen the occurrence, namely PW1, Swapan Rakshit and PW2, Smriti Rakshit, the brother and sister, respectively, of the deceased. The PW1 who lodged the FIR after almost 1 1/2 hours from the time of occurrence has clearly stated therein that all the appellants and Biswajit Sarkar inflicted the dagger blows on the person of Raju Rakshit in front of Bishnu Debnath's grocery shop situated at Usha Bazar. PW1, however, in his deposition before the court has changed his version and tried to improve it by saying that while the appellants caught hold of his younger brother Raju, Biswajit Sarkar stabbed his brother with a Kirichi (dagger). Though the PW1 claims that he was at the place of occurrence, such claim has not been supported by PW2, who also claims to be at the place of occurrence along with his brother Raju. Had the PW1 been at the place of occurrence, PW2 who is the sister, must have stated so in her evidence. During cross-examination it has also been revealed that though this witness has claimed that he has informed the investigating officer and accordingly, his statement under Section 161, Cr.P.C. was recorded to the effect that the three appellants caught hold of his brother and Biswajit stabbed Raju, such statement has not been found by the learned trial court as has been commented upon by the learned court, in his cross-examination. It, therefore, appears that there are material contradictions between his statement before the court and his version in the FIR as well as his statement under Section161, Cr.P.C. Such contradictions even create doubt about the presence of PW1 at the place of occurrence. The prosecution has also not examined the Autorickshaw driver in whose Autorickshaw PW1 stated to have carried Raju to the hospital from the place of occurrence or any other independent witnesses to prove that PW1 was present at the place of occurrence and also to prove the charges leveled against the appellants. 15. The prosecution has also not examined the Autorickshaw driver in whose Autorickshaw PW1 stated to have carried Raju to the hospital from the place of occurrence or any other independent witnesses to prove that PW1 was present at the place of occurrence and also to prove the charges leveled against the appellants. 15. Smriti Rakshit (PW2), the sister of the deceased, in her deposition has stated that the appellants caught hold of his brother Raju and then Biswajit stabbed his brother by a Kirichi (dagger). She has also stated that seeing the occurrence she went home and informed his father and mother about the incident. During cross-examination, this witness though has claimed that in her statement under Section 161, Cr.PC it has been recorded that the appellants caught hold of the deceased and Biswajit gave the dagger blow, such statement has not, however, been found by the learned court below as has been recorded during the cross-examination. The version of this witness that the appellants caught hold of her brother Raju, has not been supported by the mother (PW3) or by the father (PW5). According to PW3, PW2 has informed her that while Biswajit killed Raju, the appellants stood by the side of the place of occurrence. PW5 (father of the deceased), on the other hand, has not stated that he was informed by the PW2 about the occurrence. PW5, on the other hand, has stated that he got the information from Swapan Rakshit (PW1) that while Biswajit stabbed his brother with Kirichi, the appellants guarded the place. PW1, however, has not stated in his deposition that he told his father like that or informed him about the incident. PW4 Parbati Deb, the younger sister of PW3, came out with a totally different version, according to whom the appellants who were present at the place of occurrence told Biswajit to kill Raju and accordingly Biswajit stabbed Raju at the market place. The version of PW2 that the appellants caught hold of her younger brother Raju and then Biswajit gave the stabbing blow has not been corroborated by any other witnesses namely the PWs 3, 4 and 5. Such version of PW2 cannot, therefore, be relied upon for the purpose of recording conviction of the appellants under Section 302, IPC, in aid of Section 34, IPC. Such version of PW2 cannot, therefore, be relied upon for the purpose of recording conviction of the appellants under Section 302, IPC, in aid of Section 34, IPC. The discrepancies in the prosecution witnesses' version do not demand recording of conviction under Section 302 IPC in aid of Section 34, IPC. 16. Moreover, though the prosecution in order to prove the common intention introduced an incident which allegedly occurred on the previous night of occurrence by setting up a story that on the previous night, Biswajit and appellants went to the house of Raju and assaulted his father, brother, sister and Raju, such prosecution story has also not been supported by the prosecution witnesses. PW1 while has stated that on the previous night the appellants and Biswajit came to their house and assaulted the father and younger sister, the younger sister (PW2) does not support such story as she has not stated anything about the occurrence on the previous night and about assaulting her either by Biswajit or by the appellants. PW3, the mother of the deceased, has stated that the appellants and Biswajit assaulted her husband on the previous night, which has also not been supported by the PW2 as well as by the PW4. According to PW4, on the previous night, Biswajit along with the appellants came to their house and assaulted Raju. PW5, the father of the deceased, has on the other hand stated that the appellants and Biswajit on the previous night assaulted his wife (PW3), his sister-in-law (PW4) and daughter (PW2), apart from assaulting him. PWs 2, 3 and 4, however, have not supported such version. These material contradictions, therefore, creates doubt in the mind of the court, about the story relating to the previous night as set up by the prosecution and such benefit of doubt naturally must go in favour of the accused/appellants. 17. It also appears from the deposition of the prosecution witnesses that there were a number of other independent persons present at the place and time of occurrence, which is quite natural as the occurrence took place at about 9.30 A.M. at a market place. But the prosecution has not made any attempt to produce any independent witness and in fact has withheld such persons from the court. But the prosecution has not made any attempt to produce any independent witness and in fact has withheld such persons from the court. Admittedly, the witnesses examined in support of the charges are all close relatives of the deceased and naturally they are most interested in convicting the appellants. The evidence of such witnesses, in the case in hand, suffers from material contradiction as discussed above and, therefore, cannot be relied upon for the purpose of recording conviction in the absence of the examination of any independent witnesses though such witnesses were present at the place of occurrence. 18. From the deposition of the PWs as narrated above it is evident that it was Biswajit Sarkar who had inflicted the dagger blows. The doctor, who has been examined as PW8, found the following injuries on the person of Raju Rakshit, as reflected in the post mortem report: (i) An It. Shaped cut lacerated wound present left side of angle of mouth (size 5" x 1" x 2"). (ii) An elliptical stab wound present left side of chest 4th inter costal space, causing injury to heart injury corresponding (sic) x fascia & p1. (sic) (size 1 1/2 " x 5" x 1"). (iii) Elliptical stab wound left Arm over deltoid area (size 1 1/2" x 3" x 1"). (iv) Triangular lacerated wound inner aspect of left arm. (4" x 3" x 1"). (v) Satirical stab wound left side of abdomen (size 1 1/2" x 5" x 1"). (vi) Elliptical stab wound Rt. Side of Abdomen (size 1" x 2" x 1/2")". The appellants also have not disputed killing of Raju. All the above injuries are on the left side of the deceased and must have caused by Biswajit by means of Kirichi (dagger). 19. 'The prosecution sought to bring home the charge against the appellants under Section 302, IPC, in aid of Section 34, IPC. Section 34, IPC provides that when a criminal act has done by several persons in furtherance of common intention by all, each of such person is liable for that act in the same manner as if it were done by him alone. Section 34, IPC provides that when a criminal act has done by several persons in furtherance of common intention by all, each of such person is liable for that act in the same manner as if it were done by him alone. Before an accused can be held liable for acts done by another, under Section 34, IPC, it must be established that there was common intention in the sense of a pre-arranged plan between the two, and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, Section 34, IPC cannot be applied. It is, however, not necessary that the persons must actually with his own hand commit the criminal act, so as to convict him for an offence with the aid of Section 34. Section 34, IPC is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act. The concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, IPC. The act as mentioned in Section 34, IPC need not be an overt act. Even an illegal omission to do a certain act in a certain situation may amount to an act within the meaning of the said provision of law. Common intention does not create substantive offence. It is also not necessary that all persons must have same and identical intention, to convict the person in aid of Section 34, IPC. 20. In the instant case, as discussed above, the prosecution has failed to prove the common intention of the appellants, which is common with the intention of Biswajit Sarkar to kill Raju Rakshit. Even if the accused persons were present at the place of occurrence that itself will not attract the provision of Section 34, IPC, as mere presence without sharing a common intention with Biswajit Sarkar is not enough. As discussed above, the prosecution has failed to prove that the appellants caught hold of the deceased Raju Rakshit or instigated Biswajit, who then inflicted the dagger blows. Had the prosecution been successful in proving such story, the appellants could have been convicted for the offence under Section 302, IPC in aid of Section 34, which, however, the prosecution has failed to do. 21. Had the prosecution been successful in proving such story, the appellants could have been convicted for the offence under Section 302, IPC in aid of Section 34, which, however, the prosecution has failed to do. 21. For the reasons recorded above, we are of the view that the prosecution has failed to prove the ingredients of Section 34, IPC, so as to convict the appellants under Section 302, IPC in aid of Section 34, IPC. Therefore, the judgment of conviction recorded by the learned Sessions Judge is set aside. The accused/appellants are set at liberty. They are directed to be released forthwith, if not wanted in connection with any other case. 22. The appeal stands allowed. Appeal allowed.