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2009 DIGILAW 612 (GAU)

Subodh Debbarma v. State of Tripura

2009-08-27

T.NANDAKUMAR SINGH, TINLIANTHANG VAIPHEI

body2009
JUDGMENT T.NK. Singh, J. 1. These two appeals i.e. Criminal Appeal No. 52 of 2003 and Criminal Appeal No. 20 of 2006 in respect of the same incident, in which one Jogesh Debbarma was murdered, are taken up for joint hearing and being disposed of by this common judgment and order. 2. Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. M. Debbarma, learned Counsel appearing for the appellants as well as Mr. R.C. Debnath, learned Public Prosecutor for the State-respondent. 3. The appellants-accused three in number, namely, Shri Subodh Debbarma, Shri Biswamohan Debbarma and Shri Swapan Debbarma in Criminal Appeal No. 52/2003, are challenging the judgment and sentence dated 19.12.2002 passed by the learned Addl. Sessions Judge, West Tripura, Khowai, in Case No. S.T. 50(WT/K)/2000, convicting the appellants-accused under Section 302 read with Section 149 of IPC and sentencing each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each, in default of payment of fine, to suffer further rigorous imprisonment for two months. The appellant-accused Shri Sovaram Debbarma in Criminal Appeal No. 20/2006 is also challenging the judgment and sentence dated 2.4.2005 passed by the learned Addl. Sessions Judge, West Tripura, Khowai, in Case No. S.T. 50(WT/W)/2002 convicting the appellant-accused under Section 302 read with Section 149 of IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine, to suffer simple imprisonment for three months. The appellant-accused Sovaram Debbarma who was the absconder, was arrested later on, the strength of the permanent warrant of arrest issued against him by the committing Court and was sent up for trial after the learned Addl. Sessions Judge, West Tripura, Khowai had passed the judgment and sentence dated 19.12.2002 in Case No. S.T. 50(WT/K)/2002 for convicting the aforesaid three appellants-accused i.e. Shri Subodh Debbarma, Shri Biswamohan Debbarma and Shri Swapan Debbarma of Criminal Appeal No. 52/2003 and, after trial, convicted the appellant-accused Shri Sovaram Debbarma of Criminal Appeal No. 20/2006 vide judgment and sentence dated 2.4.2005 passed in Case No. S.T. 50(WT/K)/2002, for the same incident in which one Jogesh Debbarma was murdered. 4. 4. It is well-settled law in the administration of justice and criminal case that if two views are possible on the evidence adduced in the case, (i) one pointing to the guilt of the accused and (ii) another to his innocence, the view which is favourable to the accused should be adopted. The paramount jurisdiction of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may rise from acquittal of the guilt is not less than from the conviction of the innocence. 5. The golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and give benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquitted encourages wolves in the society being on the prowl for easy prey. [Ref.: State of Rajasthan v. N.K. The accused (2000) 5 SCC 30 ]. 6. This Apex Court in State of West Bengal v. Kailash Chandra Pandey AIR 2005 SC 119 , held that the Appellate Court should be slow in re-appreciating the evidence. As the trial Court which has the occasion to see the demeanour of the witnesses is in a better position to appreciate it, the Appellate Court should not lightly brush aside the appreciation done by the trial except for cogent reasons. The Apex Court in Khem Karan and Ors. v. State of U.P. and Anr. AIR 1974 SC 1567 , observed as follows: Further neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. v. State of U.P. and Anr. AIR 1974 SC 1567 , observed as follows: Further neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. If a trial Court's judgment verges on the perverse, the Appellate Court has a duty to set the evaluation right and pass a proper order. 7. The prosecution case, as set out in the First Information Report, which was lodged by one Jogendra Debbarma (PW No. 5) was : On 6.1.2002 in the afternoon while the deceased Jogesh Debbarma was on the way of his house from North Maharanipur bazaar at about 5/5.30 O'clock, a group of armed NLFT extremists had opened fire aiming at him nearby Dewan Sardar Para and he died there. In the FIR, which as lodged on the next day of the occurrence by the PW No. 5 Shri Jogendra Debbarma, neither the names of the appellants-accused nor the names of the eye-witnesses were mentioned. The prosecution examined as many as nine witnesses, namely, Dusanta Debbarma (PW No. 1), Ranendra Kr. Barman (PW No. 2), Jitendra Nama (PW No. 3), Gopal Debbarma (C/1794) (PW No. 4), Jogendra Debbarma (PW No. 5), Abhimanyu Debbarma (PW No. 6), Satya Rajnan Debbarma (PW No. 7), Rabindra Debbarma (PW No. 8) and Kanchan Mala Debbarma (PW No. 9). PW No. 6-Abhimanyu Debbarma is not only the eye-witness but also the star witness of the prosecution. PW No. 7-Satya Ranjan Debbarma and PW No. 8-Rabindra Debbarma were also said to be the eye-witnesses. 8. The investigation of the case appears to be not only very defective but also extremely careless. The Investigating Officer did not even care to collect the post-mortem examination report of the deceased Jogesh Debbarma and even made any attempt to collect the incriminating weapons used by the accused and even the bloodstained earth from the place of occurrence were also not collected. No witnesses of the locality who were present near the place of occurrence at the time of the incident had been examined and no TI parade of the accused was also held. No witnesses of the locality who were present near the place of occurrence at the time of the incident had been examined and no TI parade of the accused was also held. Taking into consideration the nature of the investigation of the case, it appears that the investigation of the case is so defective and blunder that the whole prosecution case is collapsed. Because of the failure on the part of the Investigating Officers to collect the post-mortem examination report of the dead body of Jogesh Debbarma; it is not even clear whether there was any post-mortem examination on the dead body of the deceased Jogesh Debbarma or not. It is also not clear the nature of injuries sustained by the deceased Jogesh Debbarma and also the type of weapons that had caused the injuries sustained by the deceased. It is surprising that in the present case, the prosecution instead of producing the post-mortem examination report and examining the doctor who said to have conducted the post-mortem examination of the dead body of the deceased Jogesh Debbarma, for proving the nature of the injuries sustained by the deceased, had made an attempt by producing the inquest report of the dead body of the deceased Jogesh Debbarma, which is not only vague but also contradictory to the prosecution case. It is the case of the prosecution that the extremists opened fire to the deceased Jogesh Debbarma at Dewan Sardar Para and he died there, but as per the inquest report the deceased Jogesh Debbarma had sustained cut injuries caused by the sharp cutting weapons on his neck and bullet-shot injuries. In the inquest report, it is also stated that to ascertain the actual cause of the death of the deceased Jogesh Debbarma, the dead body is being sent to Kalyanpur hospital for conducting the post-mortem examination, but as stated above, neither the post-mortem examination report was produced nor the doctor who had conducted the post-mortem examination of the dead body of the deceased Jogesh Debbarma was examined as prosecution witness. 9. PW No. 5-Jogendra Debbarma (informant) deposed that he lodged the ejahar (FIR) after knowing the incident from Ab-himanyu Debbarma (PW No. 6) who disclosed the names of the assailants to him. As stated above, the FIR was lodged on the following day of the incident. 9. PW No. 5-Jogendra Debbarma (informant) deposed that he lodged the ejahar (FIR) after knowing the incident from Ab-himanyu Debbarma (PW No. 6) who disclosed the names of the assailants to him. As stated above, the FIR was lodged on the following day of the incident. In the FIR lodged by the PW No. 5- Jogendra Debbarma who had the clear-cut knowledge about the names of the assailants and the name of the eye-witness i.e. Abhimanyu Debbarma (PW No. 6), did not mention these important facts/information in the FIR, inasmuch as the names of the assailants of the incident and also the eye-witness are not mentioned in the FIR. The prosecution also did not even made any attempt for giving reasons as to why and under what circumstances and for what reasons the informant i.e. PW No. 5-Jogendra Debbarma who know the names of the assailants and the name of the eyewitness before lodging the FIR, did not mention the names of the assailants as well as the eye-witness of the incident in the FIR. 10. Mr. A.K. Bhowmik, learned senior counsel appearing for the appellants-accused strenuously contended that the omission of important facts in the FIR affect the veracity of the prosecution case. In support of his contention, the learned senior counsel had relied on the decisions of the Apex Court in;- (1) Ram Kumar Pande v. State of Madhya Pradesh AIR 1975 SC 1026 ; (2) Tamil Selvan v. State, Represented by the Inspector of Police, Tamil Nadu (2008) 7 SCC 755 ; (3) State of Gujarat v. Patel Mohan Mulji and Anr. 1994 Cri LJ 280 (SC); (4) Rajeevan and Anr. v. State of Kerala (2003) 3 SCC 355 ; (5) Hem Raj and Ors. v. State of Haryana 2005 Cri LJ 2152 (SC); 11. The Apex Court in Rama Kumar Pande's case (supra), held that no doubt, as FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affects the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. But omissions of important facts, affects the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In the said case, the informant who know the names of the assailants and also the name of the eye-witnesses of the incident, did not mention not only the names of the eye-witnesses but also the nature of the injuries and also the dying declaration of the deceased made to him in the FIR. Such omissions of the important facts in the FIR affect the probabilities of the case. Para Nos. 9, 10 and 11 of the AIR in Ram Kumar Pande' case (supra) read as follows: 9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23.3.1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. 10. Even Joginder Singh, PW 8 was not an eye-witness of the occurrence. He merely proves an alleged dying declaration. He stated that Harbinder Singh (described by his pet name as "pappi") rushed out of his house by opening its door, and held his hand on his chest with blood flowing down from it. He deposed that, when he asked pappi what had happened, pappi had stated that Suresh and Pandey had injured him. It is clear from the FIR that Joginder Singh had met Uttam Singh before the FIR was made. Uttam Singh did not mention there that any dying declaration, indicating that the appellant had also injured Harbinder Singh. The omission to mention any injury inflicted on Harbinder Singh by the appellant in the FIR seems very significant in the circumstances of this case. Indeed, according to the version in the FIR, Joginder Singh, who was in the lane, is said to have arrived while Harbinder Singh was being injured. The omission to mention any injury inflicted on Harbinder Singh by the appellant in the FIR seems very significant in the circumstances of this case. Indeed, according to the version in the FIR, Joginder Singh, who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this was correct, the two injuries on Harbinder Singh must also have been inflicted in the lane outside. 11. Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye-witness of the whole occurrence, was also not mentioned in the FIR. Suresh had, according to her, stabbed Harbinder Singh on the right side of the chest at the door of the kitchen, and, thereafter, Pandey was said to have attacked him. 12. In Tamil Selvan' case (supra), the incident took place in the night, the assailants, 50 in number, alleged to have fired shots and pelted stones at forest guard party, killed one of the members of the forest guard party and injured two others. The FIR was lodged on the next day and the prosecution case is that the informant could identify the accused who allegedly carrying the torches but in the FIR, which was lodged on the next day after the incident, did not mention the names of the accused in FIR. In the course of the trial, it appears that the prosecution made subsequent improvement and PW 1 Elangovan, who was also the first informant, had stated in his deposition before the trial Court that he was shocked due to the assault and because of the death of Swaminathan, and hence the names of the accused did not strike his mind. But the Apex Court did not accept the version because the FIR was not lodged immediately after the incident, but 8 hours thereafter. Hence, the shock in the mind of Elangovan would have subsided after these 8 hours, and there was no good reasons why he did not name the accused in the FIR, if he had actually seen and identified them. [Ref. : Para 10 of the SCC in Tamil Selvan's case (supra)]. 13. Hence, the shock in the mind of Elangovan would have subsided after these 8 hours, and there was no good reasons why he did not name the accused in the FIR, if he had actually seen and identified them. [Ref. : Para 10 of the SCC in Tamil Selvan's case (supra)]. 13. The Apex Court in Rattan Singh v. State of Himachal Pradesh AIR 1997 SC 768 , held that the First Informant Statement cannot be expected to be a chronicle of every details of what happened, nor to contain an exhaustive catalogue of the events which took place. The omission to state important facts has to be considered along with other evidence to determine whether fact so omitted never happened at all. 14. In the present case, PW No. 6-Abhimanyu Debbarma was said to have narrated the whole incident to the PW No. 5-Jogendra Debbarma, according to the statement of PW No. 5-Jogendra Debbarma, had stated that PW No. 6 did not inform the incident to PW No. 5-Jogendra Debbarma. As such, it is clear that there is an improvement in the prosecution case wherever the opportunity is available. The statement of PW No. 6-Abhimanyu Debbarma is so vague and clumsy, inasmuch as PW No. 6 stated only in three sentences when he was examined as a witness that, on 6.1.2002 he along with Jogesh Debbarma (deceased) were returning from Maharanipur market and when they reached near a cherra of Dewan Sardar Para, a group of NLFT extremists, namely, Arun Debbarma, Jitendra Debbarma, Samir Ranjan Debbarma, Subodh Debbarma, Biswa Mohan Debbarma, Dippu Ranjan Debbarma, Subharam Debbarma and Swapan Debbarma shot Jogesh Debbarma and after the departure of the miscreants he (PW No. 6-Abhimanyu Debbarma) left for his house and informed the matter to the wife of Jogesh Debbarma. As mentioned earlier, no TI parade was held and PW No. 6-Abhimanyu Debbarma could identify only three accused in the dock. From the statement of PW No. 6-Abhimanyu Debbarma, it is not clear as to how he could identify the assailants in the absence of any electric light or candle, inasmuch as in the State of Tripura, more particularly, in winter, at about 6.00 O'clock in the evening it is almost sunset. From the statement of PW No. 6-Abhimanyu Debbarma, it is not clear as to how he could identify the assailants in the absence of any electric light or candle, inasmuch as in the State of Tripura, more particularly, in winter, at about 6.00 O'clock in the evening it is almost sunset. PW No. 6 also did not mention anything about the availability of sufficient light and also the place where he was standing at the time of the incident, inasmuch as PW No. 6 stated that he lay down on the ground near that ditch and kept himself hidden for fear of his life and when the extremists fled from the place of occurrence, he came to the spot and found the bullet ridden dead body of Jogesh Debbarma lying on the ground. PW No. 6 also stated in his cross-examination that at the time of the occurrence it was almost dark and he kept himself hidden near a ditch about 100 metres away from the place of occurrence. 15. PW No. 7-Satya Ranjan Debbarma who also stated to be one of the eye-witness of the incident, did not mention that PW No. 6- Abhimanyu Debbarma also saw the incident, rather he did not mention anything about the PW No. 6-Abhimanyu Debbarma who said to be the eye-witness and was present at the place of occurrence. The statement of PW No. 7 is also not clear and his statement in examination-in-chief is so vague, which consists of only ten sentences, wherein he stated that on 6.1.2002 at about 5.30/6.00 p.m. he was returning home from Maharanipur bazaar and when he reached at Dewan Sardar Para, he heard a sound of gun firing and being frightened he hid himself in the jungle and saw a group of miscreants with Olive green uniforms and armed with firearms, proceeded towards Dewan Sardar Para and out of them, he could identify Subodh Debbarma, Biswa Mohan Debbarma, Dipu Ranjan Debbarma and Subharam Debbarma. In cross-examination, PW No. 7 had stated that he had seen the incident at a distance of about 1 km. from Dewan Sardar Para i.e. the place of occurrence. It is extremely doubtful that in the dark evening PW No. 7 could identify the accused from a distance of 1 km. In cross-examination, PW No. 7 had stated that he had seen the incident at a distance of about 1 km. from Dewan Sardar Para i.e. the place of occurrence. It is extremely doubtful that in the dark evening PW No. 7 could identify the accused from a distance of 1 km. Over and above, PW No. 7-Satya Ranjan Debbarma is not supporting the presence of PW No. 6-Abhimanyu Debbarma at the place of occurrence when the incident took place. PW No. 8-Rabindra Debbarma, in his examination-in-chief, stated only in nine sentences that on his way to the Maharanipur market on hearing a sound of gun firing he became frightened and hid himself in the jungle and he had seen the accused persons. The statement of PW No. 8 is also so clumsy and vague, inasmuch as he did not mention the distance from the place of occurrence where he hid himself being frightened and how he saw the incident, save and except, his statement that 7 have seen the accused persons'. But, surprisingly the PW No. 8 could not identify the appellants-accused and he stated/identified before the Court- Biswa Mohan Debbarma as Dipu Ranjan Debbarma, inasmuch as there is no accused named Dipu Ranjan Debbarma in the present case. PW No. 8 also did not mention anything about PW No. 6-Abhimanyu Debbarma. 16. From the aforesaid statements, it appears that the statements of PW No. 7-Satya Ranjan Debbarma and PW No. 8-Rabindra Debbarma are not at all reliable. What remains, in support of the prosecution case, is the solitary statement of PW No. 6-Abhimanyu Debbarma whose statement is also not corroborated by any of the witnesses. 17. The Apex Court in para Nos. 10 and 11 of Lallu Manjhi and Anr. v. State of Jharkhand (2003) 2 SCC 401 , held that: 10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category cases. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. [See : Vadivelu Theva v. State of Madras AIR 1957 SC 614 : 1957 Cri LJ 1000]. 11. In the case at hand, we can neither place implicit reliance on nor totally discard the testimony on Mannu (PW 9) as it can neither be called wholly reliable nor wholly unreliable. Mannu is a witness who could have been naturally present with his brother while ploughing the field. However, we find his testimony to have been substantially improved at the trial than what it was to begin with when the first information report of the incident was lodged. Though at the trial Mannu alleges all the 10 accused persons to have dealt blows with their respective weapons on the body of his brother Suphal Hansda, but that is certainly not correct. If 10 accused persons had even one blow each, there would have been a minimum of 10 injuries on the person of the deceased. It is the specific case of Mannu that so far as the chest injuries (fracture of ribs) are concerned, it was the result of the accused Gurua having climbed upon the body of the deceased after he had fallen down and then having pressed him against the ground. As the fracture of ribs is not accompanied by any apparent injury on the body, in all probability Such injuries were not caused by any weapon. The injuries could have been caused either by pressing hard as alleged or even by forcefully pushing the deceased during the course of any scuffle. The deceased has suffered only two other injuries, which obviously were not caused by three persons. So far as the assault on the deceased is concerned, there is so much of chaff collected by Mannu (PW 9) in his deposition that it becomes very difficult, almost impossible, to sift the grains of truth from out of the mass of chaff of falsehood and exaggerations. So far as the assault on the deceased is concerned, there is so much of chaff collected by Mannu (PW 9) in his deposition that it becomes very difficult, almost impossible, to sift the grains of truth from out of the mass of chaff of falsehood and exaggerations. In the present case, as discussed above, the investigation of the case has been very defective and also the statement of the solitary eye-witness (PW No. 6) without corroboration is wholly unreliable. (Ref : Joseph alias Jose v. State of Kerala 2003 Cri LJ 2543). 18. In the given case, as stated above, the Investigating Officer did not even made an endeavour to recover the incriminating weapons and there is no explanation as to why even an attempt had not been made to recover the incriminating weapons alleged to have been used by the appellants-accused. In absence of such explanations as to the attempt made by the IO for recovering the weapons and also in absence of the postmortem examination report of the deceased Jogesh Debbarma, it would be extremely difficult on the part of the prosecution to prove beyond reasonable doubt that the deceased died a homicidal death because of the gun shot injuries. [Ref : Rajeevan's case (supra)]. Over and above, the prosecution had utterly failed to give the reason as to why no independent witness was examined, inasmuch as according to the prosecution case, the incident took place on a busy public road in the evening, which was used by the villagers and the local residents for returning/going back to their respective homes from the market. The Apex Court in Hem Raj case (supra), held that the non-examination of the independent witnesses by the prosecution give rise to adverse inference against the prosecution. Para Nos. 9 and 10 of Cri LJ in Hem Raj case (supra) read as follows: 9. The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW 5 at a sweet stall and both of them after hearing the cries joined PW 4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first IO PW 9 went to the hospital. The evidence of the first IO reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The IO admitted that Kapur Singh was the eye-witness to the occurrence. In the FIR, he is referred to as the eye-witness along with PW 5. Kapur Singh was present in the Court on 6.10.1997. The Addl. Public Prosecutor 'gave up' the examination of this witness stating that it was unnecessary. The trial Court commented that he was won over by the accused and, therefore, he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to 'proliferation' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of 'proliferation' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses PWs 4 and 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in a public place. 10. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hirajit v. Thakore Kubersing Chamansing and Ors. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hirajit v. Thakore Kubersing Chamansing and Ors. (2001) 6 SCC 145 : ...if already overwhelming evidence is available and examination of another witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. 19. Mr. R.C. Debnath, the learned Public Prosecutor appearing for the State-respondent contended that the irregularities or illegalities committed by the Investigating Officer during the course of investigation would not make the case of the prosecution doubtful. In support of his contention, the learned Special Public Prosecutor relied on the decisions of the Apex Court in: (1) State of Rajasthan v. Kishore AIR 1996 SC 3035 ; and (2) Visveswaran v. State Represented by SDM (2003) 6 SCC 73 . After giving our anxious consideration of mind to the above- referred decisions of the Apex Court in Kishore's case (supra) and Visveswaran's case (supra), we are of the firm view that the ratio decidendi in those cases will not help the present prosecution case. After giving our anxious consideration of mind to the above- referred decisions of the Apex Court in Kishore's case (supra) and Visveswaran's case (supra), we are of the firm view that the ratio decidendi in those cases will not help the present prosecution case. In Visveswaran's case (supra), the Apex Court held that any deficiency or irregularity in investigation need not necessarily lead to the rejection of the case of prosecution when it is otherwise proved and that the only requirement is of extra caution of Courts while evaluating evidence in such cases. In the above referred case, the case of the prosecution for the offence under Section 376 of IPC is clearly proved by the statement of the victim woman. In such circumstances, the Apex Court held that defect of the investigation need not necessarily lead to the rejection of the case of prosecution. In other words, if the statement of reliable witnesses prove the prosecution case, defective investigation of the case will have no consequences. Para 12 of the SCC in Visveswaran's case (supra) reads as follows: 12. Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by Courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The Apex Court in para No. 18 of the AIR in Kishore's case (supra), observed as follows: 18. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The Apex Court in para No. 18 of the AIR in Kishore's case (supra), observed as follows: 18. It is equally true that the Investigating Officer PW 8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the Investigating Officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on the account. It is seen from the Panchanama recovery of the incriminating material from the scene of offence that there was an attempt to screen the offence by destroying the evidence. Others were prevented from entering the room. That by itself indicates an attempt on the part of the accused to destroy the incriminating evidence and to prevent others from saving the life of the deceased. Therefore, the absence of smell of kerosene oil on the hair sent for chemical examination does not render the dying declaration of the deceased suspect nor would it become unbelievable. The High Court, therefore, has not considered the evidence in the proper and legal perspective but left it doubtful like Doubting Thomas with vacillating mind to accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt. 20. Regarding the non-corroboration of the statement of PW No. 6-Abhimanyu Debbarma by the independent witnesses, Mr. R.C. Debnath, learned Public Prosecutor appearing for the State- respondent contained that as the extremists are involved in the present case, no independent witness volunteered to come out to support the case of the prosecution. In support of his contention, the learned Special Public Prosecutor relied on the decision of the Apex Court in Tarun Bora alias Alok Hazarika v. State of Assam 2002 Cri LJ 4076. On perusal of the above referred case, it appears that the facts of the case in Tarun Bora's case (supra) are diametrically different from the facts and circumstances of the present case. 21. On perusal of the above referred case, it appears that the facts of the case in Tarun Bora's case (supra) are diametrically different from the facts and circumstances of the present case. 21. In Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213 (vide SCC p. 221, para 18) Apex Court observed: 18. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 (vide SCC p. 130, para 59) Apex Court observed: 59. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential values of a decision. 22. A held in Bharat Petroleum Corporation Ltd. v. N.R. Vairamani (2004) 8 SCC 579 , a decision cannot be relied on without disclosing the factual situation. In the same judgment, the Apex Court also observed : (SCC pp. 584-85, paras 9-12). 9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of facts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statute. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (AC at p. 761) 1961 AC 737 Lord MacDermott observe (All ER p. 14-C-D). "The matter cannot, of course, be settled merely by treating the Ipsissima verba of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. In London Graving Dock Co. Ltd. v. Horton, (AC at p. 761) 1961 AC 737 Lord MacDermott observe (All ER p. 14-C-D). "The matter cannot, of course, be settled merely by treating the Ipsissima verba of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge,..' 10. In Home Office v. Dorset Yacht Co. Ltd. (1970) 2 All ER 294 (HL) (All ER p. 297 g-h) Lord Reid said, 'Lord Atkin's speech is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 2 All ER 1267observed : (All ER p. 127d) One must not, of course, construe even a reserved judgment of even Russell, LJ as if it were an Act of Parliament. And, in Heerington v. British Railways Board (1972) 1 All ER 749 [HL (E)] Lord Morris, said : (All ER p. 761c) There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it. 23. It is well-settled that under the judicial system since its inception it has been accepted that discovery, vindication and the establishment of truth are the main purposes underlying the existence of the Courts of justice. If the Court acts contrary to the rule it is expected to play, it will be destruction of the fundamental edifice on which the justice delivery system stands. Justice Arijit Pasayat of the Supreme Court observed that "by not acting in the expected manner a Judge exposes himself to unnecessary criticism. At the same time the Judge is not to be innovative at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in The Nature of Judicial Process. Justice must be rooted in confidence. The perception may be wrong about the Judge's bias, but the Judge concerned must be careful to see that no such impression gains ground. Judges like Caesar's wife should be above suspicion. A trial which is preliminary aimed at ascertaining the truth has to be fair to all concerned. It will not be correct to say that it is only the accused who must be fairly dealt with. Victims or their family members and their relatives have an imbuilt right to be dealt with fairly in a criminal trial. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm." 24. The paramount duty of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may rise from acquittal of guilt is not less than for the conviction of the innocence. The Supreme Court in Zahira Habullah and Anr. v. State of Gujarat and Ors. reported in (2006) 3 SCC 374 through Mr. The paramount duty of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may rise from acquittal of guilt is not less than for the conviction of the innocence. The Supreme Court in Zahira Habullah and Anr. v. State of Gujarat and Ors. reported in (2006) 3 SCC 374 through Mr. Justice Arijit Pasayat observed that "in a criminal case fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. Interest of society is not to be treated completely with disdain and as a persona non grata. If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves." 25. For the foregoing reasons and discussions, we are of the firm view that the prosecution had utterly failed to prove the case beyond reasonable doubt. In the result, the impugned judgments and sentence dated 19.12.2002 and 2.4.2005 respectively, passed by the learned Addl. Sessions Judge, West Tripura, in Case No. S.T. 50(WT/K)/2002 are liable to be interfered with. Accordingly, the impugned judgments and sentence dated 19.12.2002 and 2.4.2005 are set aside. The appellants are acquitted from the charge levelled against them and they shall be released forthwith, if they are not wanted in other cases. The bail bonds and surety bonds stand discharged. Both the appeals i.e. Criminal Appeal No. 52 of 2003 and Criminal Appeal No. 20 of 2006 are allowed. In the peculiar facts and circumstances of the given case, we would be failing to discharge our judicial duties if we do not express our unhappiness to the mode and manner of recording the statement of the PWs in a Sessions Trial case by the concerned Addl. Sessions Judge who, it appears, acted as moot spectators and also the manner of investigating the case by the concerned Investigating Officer and, accordingly, we express our unhappiness. Sessions Judge who, it appears, acted as moot spectators and also the manner of investigating the case by the concerned Investigating Officer and, accordingly, we express our unhappiness. The Registry is directed to furnish a copy of this judgment and order to the concerned Addl. Sessions Judges and also the Director General of Police, Govt. of Tripura, for giving necessary instructions to the concerned Investigating Officer so that he may be more careful in investigating case in future.