Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 495 (GAU)

Kishore Debbarma v. State of Tripura

2010-07-23

TINLIANTHANG VAIPHEI, UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The Appellant of the instant appeal Shri Kishore Deb Barma, a resident at Horidas Para, Uttar Maharanipur under Kalyanpur Police Station, West Tripura District was convicted under Section 302read with Section 34 of the Indian Penal Code ('IPC') and also under Section 201, read with Section34 of the IPC for murder of deceased Lokesh Debnath who was missing since 25.6.1993 afternoon and sentenced to suffer imprisonment for life for the offence punishable under Section 302 read with Section 34, IPC and further sentenced to suffer R.I. for five years for the offence punishable under Section 201 read with Section 34, IPC, by the learned Additional Sessions Judge, Khowai, West Tripura by the impugned judgment dated 27.6.2006 passed in Case No. ST/ 94(WT/K)/2003. 2. Heard Mr. S. Sarkar, learned Counsel for the Appellant and Mr. A. Ghosh,learned Addl. Public Prosecutor appearing for the Respondent State. 3. The facts of the prosecution case, in brief, are that on 29.6.1993 one Jogesh Debnath (PW1) of Watilong Para, P.S. Kalyanpur reported to the Kalyanpur Police Station that his younger brother Lokesh Debnath found missing since 25.6.1993 afternoon. Upon receipt of the aforesaid information, the police authority prepared a GD Entry being GD Entry No. 991 dated 29.6.1993. Subsequent to the aforesaid information, another brother of said Lokesh Debnath, namely, Khokan Debnath (PW2) also submitted a petition on 1.7.1993 that his brother might be murdered vide G.D. Entry No. 25 dated 1.7.1993 and accordingly, investigation was started under Section 157 of the Code of Criminal Procedure. 4. During investigation, the police authority, i.e., the complainant (PW8) arrested the present Appellant along with two other accused persons namely, Kama Debbarma and Biswamohan Debbarma and after interrogation of these accused persons, it was found that they murdered the brother of the aforesaid Jogesh Debnath and Khokan Debnath and regarding their commission of the offence, they also made confession to the police wherein they stated that they along with others murdered deceased Lokesh Debnath and kept his body concealed underground at Kuch Colony. On the basis of the said information the dead body of Lokesh Debnath, missing brother of PW1 and PW2 was recovered which was disinterred in presence of Executive Magistrate and other witnesses. On the basis of the said information the dead body of Lokesh Debnath, missing brother of PW1 and PW2 was recovered which was disinterred in presence of Executive Magistrate and other witnesses. Subsequently, after observing all other necessary formalities, S.I. Satyabrata Gupta who conducted investigation under Section 157 of Code of Criminal Procedure lodged a suo motu complaint with the Officer-in-Charge of Kalyanpur Police Station against the present Appellant as well as Karna Debbarma and Biswamohan Debbarma. After that the complainant (PW8) took up the investigation of the case and filed charge sheet against the present Appellant and other two accused namely, Kama Debbarma and Biswamohan Debbarma: 5. As the offence was a cognizable and exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Khowai took cognizance and committed the case to the Sessions when the present Appellant was in judicial custody and the rest two accused were sine die as both of them were absconding at the relevant time. 6. The learned Addl. Sessions Judge while in trial framed charges against the present Appellant under Section 302 read with Section 34, IPC, for committing murder of deceased Lokesh Debnath and also under Section 201 read with Section 34, IPC, for causing disappearance of evidence relating to murder of deceased Lokesh. 7. To bring home the guilt of the accused-Appellant, the prosecution examined as many as nine witnesses including Shri. B.B. Bhattacharjee, a judicial officer who being the learned SDJM, Khowai as he then was recorded the statement of the accused parsons under Section 164, Code of Criminal Procedure. On completion of recording of evidence of witnesses, the accused-Appellant was examined under Section 313, Code of Criminal Procedure where he denied the allegation and declined to adduce any evidence in his defence. Considering the materials on record, the learned Additional Sessions Judge, Khowai recorded the conviction and sentence against the accused-Appellant as stated supra. Being aggrieved by the said judgment and order of conviction and sentence, the accused-Appellant has come before this Court with the instant appeal. 8. Considering the materials on record, the learned Additional Sessions Judge, Khowai recorded the conviction and sentence against the accused-Appellant as stated supra. Being aggrieved by the said judgment and order of conviction and sentence, the accused-Appellant has come before this Court with the instant appeal. 8. To arrive at the aforesaid conclusion that the murder of the deceased Lokesh was committed by the accused-Appellant and also he tried to screen the offence, the learned trial court mainly relied upon the evidence of P Ws 1 and 2, two brothers of the deceased as well as PW8, the complainant-cum-investigating officer and PW9, the learned Judicial Magistrate who recorded the confessional statement of the accused-Appellant and other two accused persons who were absconding since trial. 9. Mr. Sarkar, learned Counsel appearing for the accused-Appellant while attacking the impugned judgment and order of conviction and sentence would contend firstly that the whole trial is vitiated as the complainant himself investigated the complaint. Secondly, he contended that the impugned judgment and order of conviction and sentence passed by the learned trial court is based on alleged leading to discovery of dead body of the deceased as shown by the accused persons including the present Appellant though there is no evidence available on record that the accused-Appellant was a party in leading to discovery. To support his aforesaid contention, Mr. Sarkar referred the inquest report, Exbt. 2, wherein it is mentioned that on identification of Jogesh Debnath, brother of the deceased and as shown by the arrested accused Kama Debbarma who is at present absconder in presence of the Executive Magistrate Shri Tushar Goswami on finding the dead-body of deceased Lokesh Debnath lying with head turned towards west after being brought out from underneath the earth of the lunga (lowland) of the village named Kuch Colony, the I.O. prepared the inquest report on the dead body of the said deceased. Therefore, according to him, as per inquest report, it is the admitted position that at the time of discovery of the dead body of the deceased the present Appellant was not present and the findings of the learned trial court that the dead body of the deceased Lokesh was discovered as identified by the present Appellant is based on no evidence. He also contended that the learned trial court while convicting the present Appellant also took note of the alleged confessional statement of the Appellant recorded by PW9 under Section 164, Code of Criminal Procedure but fact remains that the original statement of the Appellant was not before the learned trial court and the learned trial court in absence of original statement relied upon the alleged carbon copy of the 164 statement of tee Appellant comparing the same with another photocopy supplied by the learned Counsel for the parties only on the basis of the statement of PW9, the learned Magistrate who allegedly recorded the statement under Section 164, Code of Criminal Procedure when the Appellant in his examination under Section 313, Code of Criminal Procedure straightway denied before the learned trial court, inter alias, that he did not make any confessional statement before any authority is not permissible under law. Mr. Sarkar further contended that even if this Court considers that the present Appellant made a judicial confession as stated by PW9, this Court has to see whether such statement was a voluntary one and was also truthful. His further contention was that the entire prosecution ease is based on circumstantial evidence as admittedly there was no eyewitness of the alleged offence of murder. Therefore, it is the duty of the prosecution to prove the chain of link from missing to death and recovery of the dead body of the deceased Lokesh which is totally absent in the instant case. He again contended that the wrist watch of deceased Lokesh was not recovered from, the house of the Appellant, but that was recovered from the house of co-accused Kama Debbarma, who is at present absconder. Therefore, even if recovery of the wrist watch was there, by that the Appellant cannot be connected with the alleged offence. He finally contended that though the deceased Lokesh was missing on and from 25.6.1993, but the missing information was lodged only on 1.7.1993, i.e., there was a delay of almost six days in lodging the missing information to the police authority. 10. Per contra, to resist the contention of Mr. Sarkar, Mr. Ghosh, learned Addl. He finally contended that though the deceased Lokesh was missing on and from 25.6.1993, but the missing information was lodged only on 1.7.1993, i.e., there was a delay of almost six days in lodging the missing information to the police authority. 10. Per contra, to resist the contention of Mr. Sarkar, Mr. Ghosh, learned Addl. Public Prosecutor submitted that admittedly the original 164 statement of the Appellant was not available before the learned trial court for exhibiting the same while PW9, the learned Judicial Magistrate was examined, but being the recording officer of the said document he himself admitted after perusing the carbon copy as well as the photo copy of the same as placed by the learned Counsel for the parties-before the learned trial court that these copies are from the original and admittedly he recorded the statement of the present Appellant along with two other co-accused which have also been exhibited. Therefore, it would not be proper for this Court to disbelieve the said document only on the ground that those were carbon as well as photo copy of the original. He contended that the present Appellant also did not resile from his earlier statement till the recording of his statement under Section 313, Code of Criminal Procedure, only at the belated stage he resiled from his earlier statement stating, inter alia, that he did not give any confessional statement. However, Mr. Ghosh in his usual fairness conceded that at the time of preparation of the inquest report, the present Appellant was not present and also the wrist watch of the deceased Lokesh was not recovered from his possession, rather the inquest report was prepared after discovery of the dead body of the deceased as shown by co-accused Kama Debbarma and the aforesaid wrist watch was recovered from the house of said co-accused Karna Debbarma. Mr. Ghosh in his usual fairness also submitted that though the learned trial court convicted the present Appellant for committing the murder of deceased Lokesh Debnath and also for screening the offence of said murder, but upon going through the evidence as well as the judgment of the learned trial court, it would appear that the prosecution failed to prove its case upon circumstantial evidence as the following tests, namely, (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or should' and not 'may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused and must show that in all human probability the act must have been done by the accused, are totally absent in the instant case. Therefore, according to him, the present Appellant is entitled to get the benefit of doubt though not clear acquittal. 11. Though the learned Addl. Public Prosecutor in his usual fairness has submitted that the Appellant is to be acquitted from the charges levelled against him by way of conviction and sentence, but at the same time it is also our duty as a court to re-appreciate the evidence adduced by the prosecution before the learned trial court on the basis of which the learned trial court convicted and sentenced the present Appellant. Accordingly, we re-appreciate and re-produce the salient portion of the evidence of P Ws. 1, 2, 8 and 9, upon which the learned trial court mainly relied for convicting and sentencing the Appellant, as follows: PW1, Shri Khokan Debnath deposed before the learned trial court that on 25.6.1993 his younger brother Lokesh Debnath left the house in connection with his business. Since then he had been missing. He along with others made thorough search for his missing brother but his whereabouts could not be traced out. On 29.6.1993 the police informed him that the dead body of his brother, Lokesh had been lying in a ditch at Kuch Colony and the police requested him to accompany them at the time of recovery of the dead body. Then he and his brother Jogesh Debnath accompanied the Kalyanpur Police to Kuch Colony. On 29.6.1993 the police informed him that the dead body of his brother, Lokesh had been lying in a ditch at Kuch Colony and the police requested him to accompany them at the time of recovery of the dead body. Then he and his brother Jogesh Debnath accompanied the Kalyanpur Police to Kuch Colony. The dead-body of his brother was recovered by digging a hole on the information given by accused Kishore Debbarma and Kama Debbarma and basing on the statement of accused Kishore Debbarma, he and his younger brother Jogesh went to the house of Kishore and in he (Kishore) brought out the wrist watch of his deceased brother from his brother in presence of them. But this witness later on stated that the wrist watch in question was recovered from the house of Karna Debbarma not from the house of Kishore Debbarma leading to the statement made to the police by Karna Debbarma. PW2, Shri Jogesh Debbarma, another brother of the deceased Lokesh corroborated the statement made by PW1 before the learned trial court. PW8, S.I. Satyabrata Gupta, the informant-cum-investigating officer of the case stated before the learned trial court that on 29.6.1993 a missing information of one Lokesh Debnath was recorded vide GD No. 991. Subsequently, an application was submitted on 1.7.1993 suspecting the death of Lokesh which was entered vide GD No. 25 dated 1.7.1993 and on the basis of that information investigation under Section 157, Code of Criminal Procedure was started and in course of investigation he arrested the present Appellant and two others, namely Kama Debbarma and Biswamohan Debbarma who during interrogation confessed to him the murder of Lokesh Debnath and burying his dead body in a jungle of Kuch Colony, On 2.7.1993 the dead body was recovered as per previous information of the accused persons. As per information given by accused Kama the wrist watch of the deceased was recovered from the house of accused Karna Debbarma. In cross, this witness stated that he interrogated the accused persons jointly and separately. PW9, Shri. B.B. Bhattacharjee, the then SDJM, Khowai deposed that on 5.7.1993 the accused persons namely, Karna Debbarma, Kishore Debbarma and Biswas Mohan Debbarma were produced before him from Khowai Sub-Jail for recording their confessional statement under Section 164, Code of Criminal Procedure. Accordingly, he recorded the confessional statement of the three accused persons. Accused persons made the statement voluntarily. PW9, Shri. B.B. Bhattacharjee, the then SDJM, Khowai deposed that on 5.7.1993 the accused persons namely, Karna Debbarma, Kishore Debbarma and Biswas Mohan Debbarma were produced before him from Khowai Sub-Jail for recording their confessional statement under Section 164, Code of Criminal Procedure. Accordingly, he recorded the confessional statement of the three accused persons. Accused persons made the statement voluntarily. He proved the statement of the accused as Exbts. 8, 8/1 and 9 respectively. He stated that though he recorded the confessional statement of the accused Kishore Debbarma, the said statement was not found available in the judicial record. 12. We have also gone through the impugned judgment of the learned trial court. According to us, Mr. Sarkar, learned Counsel for the Appellant has rightly pointed out that the whole judgment of the learned trial court is based on leading to discovery of the dead body of the deceased and on the alleged 164 statement of the Appellant. How and in what manner a case of circumstantial evidence has to be proved, has been discussed by the Apex Court in its various decisions and one of the earliest decision of the Apex Court on the subject is Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 wherein the Apex Court observed, inter alia, "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." The aforesaid decision is also subsequently followed by the Apex Court in Padala Veera Reddy v. State of A.P., (1989) Supp (2) SCC 706 wherein the Apex Court discussed regarding the tests which should be satisfied in a circumstantial evidence as stated by Mr. Ghosh in his usual fairness before us. 13. We have also gone through the decision of the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the Apex Court also considered the ratio of the aforesaid judgment in Hanumant Govind Nargundkar (supra),Tufail (alias) Simmi v. State of U.P., (1969) 3 SCC 198 and Ramgopal v. State of Maharashtra, (1972) 4 SCC 625 and Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 and observed, thus - A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra SCC para 19. p.807; SCC (Crl.)p.1047where the following observations were made [SCC para 19. p.807; SCC (Crl.)p.1047]: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can' convict and the mental distance between may be is long and divides vague conjectures from sure conclusions, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. In Ujjagar Singh v. State of Punjab, (2008) Cri. LJ 808, the Apex Court again considered the case of Hanumant Govind Nargundkar (supra) as well as Sharad Birdhichand Sarda (supra). 15. 14. In Ujjagar Singh v. State of Punjab, (2008) Cri. LJ 808, the Apex Court again considered the case of Hanumant Govind Nargundkar (supra) as well as Sharad Birdhichand Sarda (supra). 15. We have also gone through the decision of the Apex Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 and in some other cases, but according to us it is not necessary to discuss in detail those cases as in the instant case, the learned Addl. Public Prosecutor himself submitted that the chain for proving the circumstantial evidence is not linked with the event from missing to a death of the deceased Lokesh. 16. We have no hesitation to accept the contention of Mr. Sarkar, learned Counsel for the Appellant that in absence of the original document relating to 164 statement of the Appellant, the learned trial court ought not to have passed the impugned judgment and order of conviction and sentence when the Appellant in his 313 statement specifically made a denial to Question No. 9, inter alia, of PW9 the then SDJM, Khowai deposed that after observing all formalities he recorded the confessional statements of three accused persons including you and all of you have given statements voluntarily even after alarming you about the consequence of giving confessional statement. What do you like to say in this respect? 17. It also appears from the inquest report that the present Appellant neither was present at the time of discovery of the dead body of the deceased Lokesh nor at the time of preparation of the inquest report. More so, no statement of the Appellant is also recorded under Section 27 of the Evidence Act, which was mandatory in nature to prove the fact that the discovery of the dead body of Lokesh was done on the basis of his information. On that count also the involvement of the Appellant so far leading to discovery of the dead body of deceased Lokesh is concerned, creates a doubt in our mind. Further we are of the opinion that the person who lodged the complaint should not investigate the same except in extraordinary circumstances where necessity demands for such investigation. On that count also the involvement of the Appellant so far leading to discovery of the dead body of deceased Lokesh is concerned, creates a doubt in our mind. Further we are of the opinion that the person who lodged the complaint should not investigate the same except in extraordinary circumstances where necessity demands for such investigation. Here in this case it is the admitted position that PW8 lodged the suo motu complaint on 4.7.1993 and after registration of the same as Kalyanpur P.S. Case No. 2 (7) 93 he himself took up the investigation. It is also not stated anywhere that except him no other police officer was available at the relevant time to investigate the aforesaid case, hence, it cannot be said that necessity demands that he should investigate the case. Hence, the submission of Mr. Sarkar has some force. It would not be proper on our part to take any view against an accused of a criminal case like the present Appellant on suspicion in absence of any clear proof. In a criminal case, howsoever, high the suspicion is, cannot be the basis for conviction of an accused. The conviction in a criminal case requires the proof which is totally absent in the instant case. 18. In view of the peculiar facts and circumstances of the case in hand and the scrutiny of the evidence on record as stated supra, we are of the opinion that the prosecution cannot be said to have established the chain of the circumstances which would link the accused-Appellant with the alleged crime and the learned trial court has also failed to consider the facts in question so far the leading to discovery is concerned and has convicted the Appellant on the basis of the available carbon as well as photocopy of his alleged 164 statement in absence of original document relating to such statement. We have also noticed that the prosecution story has a large number of loopholes so far the present Appellant is concerned, which creates a doubt in our mind regarding his involvement in the alleged crime. Therefore, according to us, the present Appellant is entitled to get the benefit of such doubt. Consequently, we have no option except to hold that the accused-Appellant is entitled to get the benefit of doubt. 19. Therefore, according to us, the present Appellant is entitled to get the benefit of such doubt. Consequently, we have no option except to hold that the accused-Appellant is entitled to get the benefit of doubt. 19. In the result, the impugned judgment and order of conviction and sentence dated 27.6.2006 is set aside and the appeal is allowed. It is directed that the Appellant be set at liberty forthwith unless he is wanted in any other case. Appeal allowed