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2008 DIGILAW 844 (GAU)

Ishan Deb Barma v. State of Tripura

2008-12-11

BIPLAB KUMAR SHARMA, P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment dated 8.11.2002 passed by the learned Additional Sessions Judge, West Tripura, Khowai in Case No. S.T. 23 (WT/K) of 2002 convicting the accused-appellants under Sections 148, 326 and 302/149 of the Indian Penal Code and sentencing each of them (a) R.I. for life and a fine of Rs. 10,000/- in default of payment of fine to suffer R.I. for two months for offence under Section 302/149 IPC, (b) R.I. for 7 years and also a fine of Rs. 5,000/- in default of payment of fine further R.I. for one month under Section 326, IPC and (c) R.I. for 3 years each under Section 148, IPC which would run concurrently and also providing that if the fine money is realized, the same be paid to the parents of the deceased in equal share by way of compensation. 2. The prosecution case, in short, as unveiled at the trial may be narrated, thus:- In the evening of 27-10-2000 at about 5.00/5.15 p.m., a group of tribal extremists, some of them in the uniform of Assam Rifles men, first attacked the house of the informant Pradip Kumar Shil at Debendra Sadar Para Village under Teliamura P.S. and started firing indiscriminately in the room of his elder brother, Haripada Shil, killing him and his wife Minati Shil and his mother Soudamani Shil. The informant peeping through the gap of the door and window witnessed the incident and could identify Ishan Debbarma and Surjya Ram Debbarma as members of the miscreants. PW-5, Arabinda Shil, son of the deceased Haripada Shil also could identify the accused Ishan Debbarma, Surjya Debbarma and Bipul Debbarma as members of the miscreants. The miscreants also attacked the houses of Ram Lal Biswas, Babul Deb, Joy Kumar Deb and Subal Deb and killed Rajesh Biswas and Shipra Biswas (Shil). In the said attack, Supriya Biswas, Mithun Deb, Ashish Gope and Rinki Deb sustained grievous injuries. Mithun Deb succumbed to his injuries in the hospital. PW-7, Supriya Biswas, who sustained bullet injury on her person, could identify the accused Bagala alias Sambhuram Debbarma and Chitta Debbarma as member of the miscreants. Hearing the sound of gunfire, the police personnel of B. M. Para camp rushed to the spot and opened the fire upon the miscreants and then the miscreants fled away from the village. 3. PW-7, Supriya Biswas, who sustained bullet injury on her person, could identify the accused Bagala alias Sambhuram Debbarma and Chitta Debbarma as member of the miscreants. Hearing the sound of gunfire, the police personnel of B. M. Para camp rushed to the spot and opened the fire upon the miscreants and then the miscreants fled away from the village. 3. When police visited the place of occurrence one Sri Pradip Shil, PW-1 lodged a written FIR at the spot. The police registered a case namely, Teliamura P.S. Case No. 106 of 2000 under Section 148/149/326 & 302 of the I.P.C. and under Section 27 of the Arms Act. The investigation of the case was entrusted with Sankar Lal Chakraborty, Sub-Inspector of the Teliamura Police Station. On completion of the investigation, he submitted the charge-sheet against the accused persons namely, Chitta Rajan Debarma, Ranjan Kumar Debbarma, Sambhuram Debbarma alias Bagla, Raj Kumar Debbarma, Subodh Debbarma, Surjya Ram Debbarma alias Patia, Ishan Debbarma, Sudhannya Debbarma, Bipul Debbarma and Takhiral Debbarma under Section 148/149/326 and 302, I.P.C. read with Section 27 of the Arms Act showing accused Surjya Ram Debbarma, Ranjan Debbarma, Bipul Debbarma and Subodh Debbarma as absconders. 4. As per the records, the learned Sub-Divisional Judicial Magistrate, Khowai, West Tripura could not procure the attendance of the absconding accused persons before the Court for which the case was adjourned sine die in respect of the accused Surjya Ram Debbarma alias Patla, Ranjan Debbarma, Bipul Debbarma and Subodh Debbarma. The offence being exclusively triable by the Court of Session, it was committed by the aforesaid Sub-Divisional Judicial Magistrate, Khowai to the Court of Session, West Tripura for trial of remaining six accused persons namely, Raj Kumar Debbarma, Sudhanya Debbarma, Takhirai Debbarma, Sambhuram Debbarma, Ishan Debbarma and Chitta Ranjan Debbarma. The case was endorsed to the learned Additional Sessions Judge, West Tripura for trial and adjudication. 5. The charges were read over and explained to the accused persons, to which they had pleaded not guilty and claimed to be tried. During the course of trial, the prosecution, in order to prove the charges against the accused appellants, examined as many as 26 witnesses while the defence examined only 3 witnesses in their defence. 6. Heard Mr. P.K. Biswas assisted by Mr. M.K. Biswas, learned Counsel for the accused-appellants and also heard Mr. D. Sarkar, learned Public Prosecutor for the State of Tripura. 7. 6. Heard Mr. P.K. Biswas assisted by Mr. M.K. Biswas, learned Counsel for the accused-appellants and also heard Mr. D. Sarkar, learned Public Prosecutor for the State of Tripura. 7. Taking us through the evidence of the prosecution witnesses, Mr. Biswas, learned Counsel for the accused-appellants submits that the conviction and sentence is based on the evidence of sole eye-witness i.e. PW-7, Miss Supriya Biswas, who is aged about 12 years only at the time of deposition on 4-7-2002 and hardly 10 years at the time of occurrence that took place on 27-10-2000. The other eye-witness, namely Sri Pradip Shil (PW-1) the informant himself, could identify only two of the 20/25 extremists, namely, Surjyaram Debbarma and Ishan Debbarma. Ishan Debbarma is one of the appellants before this Court. It is stated by Mr. Biswas that the accused-appellant, Ishan Debbarma has expired on 9.12.2005 and therefore, only the two accused-appellants namely, Sambhuram Debbarma alias Bagla and Chittaranjan Debbarma remain as appellants in the present appeal. Apart from the evidence of PW-7, who was produced as eye-witness by the prosecution, according to Mr. Biswas, there is no other corroborated evidence on record and no conviction can be ordered on the basis of such uncorroborated evidence of a child witness. According to Mr. Biswas, the PW-7, being a child witness was required to be tested as to whether she was mature enough to understand the question and the difference between the truth and falsehood before recording her statement and moreover, the deposition of such child witness is to be examined carefully whether she was free from being tutored or influenced by anybody. This not being done by the learned trial Court, according to Mr. Biswas, the conviction of the accused-appellants is not sustainable under the law. In support of his submissions, he relies upon the cases of Panchhi and other vs. State of U.P. as reported in 1998 Cri LJ 4044 and Dattu Ramrao Sakhare and other vs. State of Maharashtra, reported in (1997) 5 SCC 341 . 8. The further submission of Mr. Biswas is that the evidence of child eye-witness, PW-7 is not supported/corroborated by any other witnesses. Her statement under Section 161, Cr. P.C. was recorded by the Police only on 5.1.2001 i.e. after more than two and half months from the date of occurrence. The prosecution examined several co-villagers/neighbours namely, PW-3, Sudhir Ghosh; PW-4. 8. The further submission of Mr. Biswas is that the evidence of child eye-witness, PW-7 is not supported/corroborated by any other witnesses. Her statement under Section 161, Cr. P.C. was recorded by the Police only on 5.1.2001 i.e. after more than two and half months from the date of occurrence. The prosecution examined several co-villagers/neighbours namely, PW-3, Sudhir Ghosh; PW-4. Babul Deb; PW-6, Haradhan Deb; PW-9, Harendra Ghosh and PW-19, Dilip Debbarma but in their deposition, they clearly stated that they could not say who were the miscreants, whereupon the prosecution requested the trial Court to declare them as hostile witnesses. The prosecution also examined other co-villagers namely, Rabindra Ghosh (PW-10), Smt. Puspa Rani Deb (PW-11), Dulal Deb Deb Roy (PW-12), Smt. Pratima Ghosh (PW-13), Mihir Gope (PW-14), Sanjit Sarkar (PW-15), Raj Kumar Gope (PW-17) and Prabir Gope (PW-18), who also could not name or identify any of the miscreants or extremists involved in the aforesaid incident. 9. Mr. Sarkar, learned P. P. apprising the situation prevailing during the period in which the occurrence took place, submits that extremist activities in the area was at the peak and a situation was created in which the entire population of the area was suffering from fear psychosis and the people did not want to take the risk of being reprised for divulging any information against the extremists and to come forward as witness before the police and the Court. This was the reason why the members of the said village initially came forward as witnesses before the I.O. but subsequently, due to fear factor, they had a second thought and declined to give evidence before the Court and they were declared as hostile witnesses by the trial Court at the request of the P. P. However, a lone child witness (PW-7) dared to give evidence putting her life at a great risk and named the accused-appellants as perpetrators. According to Mr. Sarkar, although the PW-7 was a child of 10 years at the time of occurrence, she could identify the aforesaid accused-appellants, Sambhu Debbarma alias Bagla and Chitta Debbarma because she knew these two accused-appellants as they used to visit her house earlier. The defence, according to Mr. Sarkar, could not shake the evidence of child witness (PW-7) and as such, her evidence cannot be brushed aside and disbelieved simply for want of corroboration. The defence, according to Mr. Sarkar, could not shake the evidence of child witness (PW-7) and as such, her evidence cannot be brushed aside and disbelieved simply for want of corroboration. Since it was difficult to procure witness due to aforesaid situation, the evidence of child witness (PW-7) should be given due value and treated as trustworthy. In this regard, Mr. Sarkar has cited the cases of Tarun Bora alias Alok Hazarika vs. State of Assam, reported in 2002 Cri LJ 4076 and Laba Chandra Dutta and other vs. State of Tripura. With regard to the delay in examination of PW-7 under Section 161, Cr. P.C., it is submitted by Mr. Sarkar that the defence cannot gain any advantage therefrom because the delay was occasioned as the child witness sustained injury and was lying in hospital for treatment. In this regard, reliance has been put by the learned P. P. on the cases of the State of U.P. vs. Satish, reported in 2005 Cri LJ 1428 and the State of Rajasthan vs. Kishore reported in 1996 Cri LJ 2003. 10. We have perused the records carefully and given our anxious consideration on the submissions made by the learned Counsel for the parties. There is no evidence on records that the situation during the period of incident was such that the witnesses, due to fear of extremist elements active in the area, could not come forward to give evidence either before the police or the Court. The Investigating Officer, Sri Sankar Lal Chakraborty who was examined as PW-26, was the best person to speak about such situation, had it been prevailing so. He had examined several villagers including the members of the victim families during the investigation of the case. He has never stated in his evidence or apprised the trial Court at any stage about such situation as narrated by the learned P. P. It is difficult for us to take judicial notice of such situation in absence of any evidence in that regard. Moreover none of the witnesses, including PW-1 & PW-7, had ever hinted at existence of such situation. Moreover none of the witnesses, including PW-1 & PW-7, had ever hinted at existence of such situation. Even none of the prosecution witnesses, who have been declared hostile, described the situation as apprised now by the learned P. P. In the cross-examination of the prosecution witnesses, who were declared hostile, no efforts were made by the prosecution to get any evidence of such a situation prevalent during the said period and that they have, out of fear refused to depose against the accused-appellants. We have gone through the case of Tarun Bora 2002 Cri LJ 4076 (supra), which is a case under Terrorist and Disruptive Activities (Prevention) Act, 1993 from Assam. The Apex Court, on the basis of corroborated evidence on record, observed that it is quite but natural that in a prevalent situation, obtaining in the area surcharged with the insurgency activities, striking a terror and fear psychosis in the mind of the people, the Investigating Officer would definitely find difficulties to collect sufficient corroborative evidence and witnesses will be reluctant to come to the Court to depose or appear before the Investigating Officer to give statement for fear of reprisals. But the fact and circumstances in the present case are quite different since the prosecution was successful in producing as many as 26 witnesses including the I.O. & Medical Officer, but many of them refused to support the prosecution case. This being the position, the case of Tarun Bora (supra) is of no avail to the prosecution. 11. On the question of consequence of delayed examination of certain witnesses, the Apex Court in the case of the State of U.P. vs. Satish 2005 Cri LJ 1428 (supra) observed that it cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. In that case, it was no doubt, held that delay does not ipso facto make prosecution version suspect. This principle of law, in our considered view, is not applicable to the present case because of the distinguishable fact that in the instant case, the vital eye-witness was examined by the Investigating Officer after an unusual delay of two and half months although the police knew the fact that the said girl was lying in the hospital for treatment. This principle of law, in our considered view, is not applicable to the present case because of the distinguishable fact that in the instant case, the vital eye-witness was examined by the Investigating Officer after an unusual delay of two and half months although the police knew the fact that the said girl was lying in the hospital for treatment. There is no reasonable explanation from the prosecution for examination of this minor girl after two and half months. The possibility or likelihood of tutoring and/or influencing the child witness (PW-7) during such long period cannot be ruled out easily. This being the position, we are not in a position to accept the submission of the learned P. P. that the delay in examination of this vital child eye-witness cannot have any adverse effect on the prosecution case. 12. Mr. Sarkar, learned P. P. persuaded us with a great force that the delay in examination of a child eye-witness (PW-7) is merely an irregularly committed by the Investigating Officer but it will not thereby render the prosecution case untrustworthy and the benefit would go to the defence. In this regard, he cites the case of the State of Rajasthan vs. Kishore reported in 1996 Cri LJ 2003. We have gone through the aforesaid case. The Investigating Officer, in the aforesaid case, committed grave irregularity in omitting to send the burnt cloth and other incriminating materials for chemical examination to lend corroboration to the evidence. The Supreme Court held that such irregularity would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. The present case is quite different from the aforesaid cited case. Here we are dealing with much more grave irregularities of the Investigating Officer in the examination of a child eye-witness, on the basis of whose sole evidence, conviction has been recorded against the accused-appellants. Such grave, rather may be called gravest irregularity, on the part of the Investigating Officer cannot be said that it would not render the prosecution case untrustworthy. The law requires that the evidence of a child witness must be examined carefully to see that he/she was not influenced or tutored by the interested parties. Such grave, rather may be called gravest irregularity, on the part of the Investigating Officer cannot be said that it would not render the prosecution case untrustworthy. The law requires that the evidence of a child witness must be examined carefully to see that he/she was not influenced or tutored by the interested parties. We have failed to persuade ourselves to accept the submission of the learned P.P. and we respectfully differ from him and hold that the case of the State of Rajasthan (supra) has no application to the present case. The case of Laba Chandra Datta (supra) has been relied by the learned P. P. to bring home his submission that the conviction can be recorded on the basis of the evidence of a minor child of even 5/6 years old. We have gone through the aforesaid cited case also and found that it is quite distinguishable from the case in hand. In the above cited case the minor eyewitness, who is the son of the deceased, unlike in the present case, was examined by the I.O. without any delay. Moreover, in the present case, there is a clear contradiction between the statement made before the police under Section 161, Cr. P.C. and before the trial Court relating to the involvement and identification of the accused-appellants. We fail to understand how the aforesaid case can be relied upon to support the case of the prosecution. 13. The conviction of the accused-appellants is admittedly based on the evidence of sole child eye-witness (PW-7) and as required under the law, we are bound to examine the veracity and acceptability of her evidence. From the evidence, it is found that she was studying books at the time when she heard the sound of gunfire and came out from the room. The extremists came to her house and opened fire and her brother Rajesh Biswas and sister, Shipra Biswas died due to gunshot. She also sustained injury due to gunshot. She could identify the accused Bagla alias Samdhu Debbarma and Chitta Debbarma. She was removed to hospital just after the occurrence and she cannot say who visited their house after the occurrence. Her father, Ramlal Biswas, was also examined as PW-8. In his deposition, he stated that he was not at home at the time of occurrence. She could identify the accused Bagla alias Samdhu Debbarma and Chitta Debbarma. She was removed to hospital just after the occurrence and she cannot say who visited their house after the occurrence. Her father, Ramlal Biswas, was also examined as PW-8. In his deposition, he stated that he was not at home at the time of occurrence. According to him, her daughter (PW-7) returned home from G. B. Hospital after treatment and told him that she could identify the accused Chitta Debbarma and Sambhu Debbarma alias Bagla amongst the extremists. But in cross-examination, PW-8 again stated that her daughter, Supriya (PW-7) told him the names of the miscreants when he visited her in the said hospital. He also stated in his cross-examination that as the police officer did not put any specific question, he did not disclose to him the names of the miscreants, which he came to know from her daughter. In the evidence of PW-7, it is not found that either during her stay in the hospital or after her return to home from hospital, she never disclosed to her father, PW-8, the fact that she could see and identify the accused-appellants when they came to her house and killed her brother and sister. It is quite unusual on the part of the PW-7 that she would not disclose the names of the accused persons, whom she identified at the time of occurrence, to anybody, even to her father. Had it been disclosed to her father immediately before or after removal to the hospital, he could have informed the police. It has become doubtful from the evidence of PW-8 that she ever disclosed the names of the accused persons to him. The evidence of PW-8 that her daughter disclosed the same to him after return from the hospital as stated in the examination-in-chief and in the hospital, as stated in the cross-examination are self-contradictory. His further statement that he did not disclose the same to the police as no specific question was put to him in this regard, leads us to Cast doubt on the veracity of statement of PW-7; did she, in fact, see and identify the accused-persons. 14. PW-26. Investigating Officer deposed that on 27.10.2000, he examined 4 witnesses and recorded their statements under Section 161, Cr. P.C. On perusal of the records. 14. PW-26. Investigating Officer deposed that on 27.10.2000, he examined 4 witnesses and recorded their statements under Section 161, Cr. P.C. On perusal of the records. It is found that out of the 4 witnesses examined, one of them is PW-8, Ramlal Biswas, the father of PW-7, Supriya Biswas. In his statement under Section 161, Cr. P.C., as recorded by the I.O., PW-8 did not make any statement to the effect that when he came home after the incident, he found his daughter at home or being told by her that she could identify the accused-persons. Nor is there any statement to the effect that he visited the hospital to see his daughter. But in examination-in-chief before the Court, the PW-8 rather stated as follows: My daughter Supriya when returned home after her treatment from G.B. Hospital she told me that she could identify Chitta Debbarma and Bagala Debbarma amongst the miscreants. Again in cross-examination, PW-8 stated as follows: My daughter told me the name of the miscreants when I have visited G.B. Hospital to see her As police officer did not put any specific question I did not disclose to him that I came to learn from my daughter Supriya that she could identify the miscreants. 15. Besides there being contradictory statements in the evidence of PW-8 as stated above, there is no statement in the evidence of PW-7 that she ever told her father PW-8 about the accused-appellants whom she could identify at the time of occurrence. There is, therefore, no corroboration in the evidence of PW-7 and PW-8. There is also no statement in the deposition of I.O. (PW-26) that he inquired about the identity of the accused persons from PW-7 in the hospital. The only statement found is that on 5.1.2001, he examined 5 witnesses including the PW-7 and recorded their statement under Section 161, Cr. P.C. In the evidence of PW-26, it is not reflected that he took the statement of PW-7 in the G. B. Hospital where she disclosed the names of the accused-appellants as perpetrators. Accordingly, we find that the theory of identification of the accused-persons by PW-7 has been introduced only on 5.1.2001, when the police failed to arrest any of the named and suspected accused-persons. 16. Accordingly, we find that the theory of identification of the accused-persons by PW-7 has been introduced only on 5.1.2001, when the police failed to arrest any of the named and suspected accused-persons. 16. Under such circumstances, there is every reason to believe that the child eyewitness (PW-7) was tutored and influenced before she was produced before the trial Court and accordingly she deposed against the accused-appellants under influence of interested elements. In the case of Acharraparamhath Pradeepan and another vs. State of Kerala reported in (2006) 13 SCC 643: AIR 2007 SCW 2140 , it is held that a child witness indisputably is competent to testify if he understands the question(s) put to him and gives rational answer(s) thereto and his testimony is to be corroborated but the corroboration is more a rule of practical wisdom than of law. In the present case, the testimony of PW-7 has no corroboration with the testimony of PW-8, rather there are contradictions in their testimony as discussed above and, in our considered view, such evidence cannot be the basis for coming to a conclusion that the charges have been proved against the accused-appellants beyond any reasonable doubt. It is the requirement of law that the testimony of a child witness must be free from possibility of being tutored, coached or influenced. In the case of the State of Bihar vs. Kapil Singh, reported in 1969 Cri LJ 279, it is observed by the Apex Court that there is always danger in accepting the evidence of child witness as he may be coached by a person who may have influence on the child. It is true that there is no such evidence on records that PW-7 has been influenced or tutored by any person but the possibility of her being tutored or influenced cannot be ruled out in the facts and circumstances of the case inasmuch as she was examined admittedly by the police under Section 161, Cr. P.C., as stated earlier, after two and half months from the date of occurrence. Besides, the Apex Court, on several occasions, has held that unjustified and long unexplained delay on the part of the Investigating Officer in recording statement of material eye witness during investigation of murder case renders the evidence of such witness unreliable. P.C., as stated earlier, after two and half months from the date of occurrence. Besides, the Apex Court, on several occasions, has held that unjustified and long unexplained delay on the part of the Investigating Officer in recording statement of material eye witness during investigation of murder case renders the evidence of such witness unreliable. In this regard we would like to refer gainfully to the case of Balakrushna vs. State of Orissa, reported in 1971 Cri LJ 670. In the said case the evidence was appreciated as under: In these circumstances their evidence was rightly not relied upon to support the prosecution case as to who and in what circumstances the occurrence took place. The only other evidence is that of P.W. 5 who was not examined till the 15th January i.e. till after 10 or 11 days of the incident. There was no reason why P.W. 19 had met P.W. 5 while he was going to the village when P.W. 5 was being taken to the Hospital. No doubt P.W. 19 says that P.W. 5 was not in a condition, for him, to record his statement but apart from his saying so he does not tell us in what condition P.W. 5. 17. PW-8, the father of the child eyewitness, is not an eye-witness but the evidence on records is that the incident took place before it was dark and there were many villagers who witnessed the incident of firing. The prosecution cited and examined many persons as witnesses but none of them, in their testimony, corroborated the evidence of PW-7. It is to be noted that PW-8 is the father of PW-7 and in his evidence he stated that he did not disclose the name of the accused-appellants involved in the alleged incident, who were identified by his daughter because the police did not put any specific question to him. The question naturally arises, did PW-8, at the instance of police, depose before the Court that he was told about the identity of the accused-appellant, although he made no statement before the police under Section 161, Cr. P.C. A similar question also arises whether PW-8 being her father and being influenced by the police, tutored or coached PW-7 to depose against the accused-appellants. P.C. A similar question also arises whether PW-8 being her father and being influenced by the police, tutored or coached PW-7 to depose against the accused-appellants. Taking into consideration of these factors, it cannot be said that the testimony of the sole child eyewitness is so cogent, consistent and trustworthy gaining the confidence of the Court to convict the accused-appellants. 18. Having found the evidence of PW-7 uncorroborated and influenced, we are not prepared to hold that the charges against accused-appellants have been proved beyond doubt, not to speak of beyond any reasonable doubt, as required under the criminal law. The accused-appellants are entitled to get benefit of doubt and get acquittal thereunder. Accordingly, we set aside the conviction and sentence handed down on the appellants vide impugned judgment dated 8.11.2002 passed by the learned Additional Sessions Judge, West Tripura, Khowai in Case No. S.T. 23 (WT/K) of 2002. The appellants, if they are not required in any other case, be set at liberty forthwith. 19. The appeal stands allowed. Send down the LCR to the Court below. Appeal allowed.