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2010 DIGILAW 583 (GAU)

Pradip Sarkar v. State of Tripura

2010-08-13

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 21.3.2005, passed by the learned Sessions Judge, West Tripura, Agartala in ST(WT/A) No. 6 of 2001 is in challenge in this appeal. By the impugned judgment and order, the learned Sessions Judge convicted the Appellant for the offence under Section 302 of the Indian Penal Code (''IPC') and sentenced him to suffer rigorous imprisonment for life and pay a fine of Rs. 5,000, in default, suffer imprisonment for further period of one month for his conviction under Section 302, IPC. 2. Being aggrieved by the said conviction and sentence passed in the impugned judgment and order, the Appellant has come up with this appeal. 3. The prosecution case, as revealed at the trial may, in brief, be stated as follows: - On the night of 17.7.1996 at about 3 to 3-30 a.m., Smt. Manika Podder, wife of Sri Tapan Podder ('the deceased') entered into a conspiracy with the Appellant and killed the deceased by inflicting injury on his person with a dagger. Sri Tapan Kumar Saha (PW31), who is the brother of the wife of the deceased lodged an ejahar, on 17.7.1996, with the Officer in-Charge, West Agartala PS informing that on the night of 17.7.1996 at about 3/3-30 O' clock when the deceased was sleeping with his wife in his bed room, a person was found in their room and the said couple had chased him to the roof of the second floor and that the wife of the deceased, who went down to her room to fetch a torch light, after her arrival in the second floor found her deceased husband lying in injured condition. The injured Tapan Podder was taken to the G.B. hospital but he succumbed to his injuries, In the FIR, it was mentioned that one knife (sharp weapon) and a shirt were found lying at the place of occurrence. 4. On receipt of the FIR aforesaid, police launched investigation into the matter, prepared inquest report, forwarded the dead body for post mortem examination and recorded the statement of the witnesses. At the close of the investigation, police submitted a charge sheet against the Appellant and Smt. Manika Podder under Section 302/450/120B(1)/ 109, IPC. 5. The offence being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charge against Smt. Manika Podder under Section 302/120B(1), IPC. At the close of the investigation, police submitted a charge sheet against the Appellant and Smt. Manika Podder under Section 302/450/120B(1)/ 109, IPC. 5. The offence being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charge against Smt. Manika Podder under Section 302/120B(1), IPC. Separate charge was also framed against the Appellant under Section 320/450, IPC. The charges being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused persons, the prosecution examined as many as 33 witnesses, including the Medical officer, who performed the autopsy and the Investigating Officer. At the close of the evidence for the prosecution, the accused-persons were examined under Section 313, Code of Criminal Procedure and that they denied the allegation brought against them. Their plea was a denial one. The learned Sessions Judge by the impugned judgment and order, while acquitting Smt. Manika Podder for want of sufficient evidence, convicted and sentenced the Appellant as indicated above. 7. We have heard Mr. R. Datta, learned Counsel appearing for the Appellant and Mr. R.C. Debnath, learned Special Public Prosecutor appearing for the State Respondent and perused the materials on record. 8. Mr. R. Datta, learned Counsel appearing for the Appellant, taking us through the evidence on record has submitted that there is no sufficient, reliable and cogent evidence against the accused-Appellant and that the learned trial Judge committed error by convicting and sentencing the Appellant as aforesaid. It is also submitted that the accused-Appellant, as revealed from the age, given by him at the time of his recording the statement under Section 313, Code of Criminal Procedure, was a juvenile at the time of occurrence and as such the learned Sessions Judge committed error, in law, by not treating the Appellant under the provision of Juvenile Justice (Care and Protection of Child) Act, 2000 ('Act, 2000'). From the record, it appears that the plea that the Appellant was a juvenile at the time of occurrence was not taken at the time of trial. From the record, it appears that the plea that the Appellant was a juvenile at the time of occurrence was not taken at the time of trial. However, the said plea having been taken before this Court, this Court by order, dated 29.6.2010, directed the learned Sessions Judge, West Tripura, Agartala to make an enquiry into the matter to ascertain if the Appellant was a juvenile at the time of the occurrence and submit a report in this regard. Accordingly, the learned Sessions Judge has submitted the report, indicating, therein, that the age of the Appellant was in between 14 years to 15 years at the time of occurrence. Therefore, from the report of the learned Sessions Judge, it stands established that the Appellant, at the time of committing the offence was a juvenile for which he was entitled to the benefit, extended under the Act, 2000. Mr. R. Datta, learned Counsel for the Appellant further submitted that the Appellant, who has already undergone imprisonment for more than five years, has suffered the maximum period of detention as provided by Section 15(g) of the Act, 2000 and as such he is entitled to be released forthwith. In reply to the said argument, advanced by the learned Counsel for the Appellant, Mr. R.C. Debnath, learned Special Public Prosecutor has submitted that the case is based on circumstantial evidence and the extra-judicial confession made by the accused before PW5 and that the circumstances, which have surfaced from the evidence on record indicates the guilt of the Appellant and as such the learned trial Judge committed no error by holding the appeal ant guilty of the offence under Section 302, IPC. 9. As the Appellant has been found to be a juvenile at the time of occurrence we would have dealt him under Act, 2000. As provided in Section 15(g) of the Act, 2000, the maximum period of detention in 3 three years. Admittedly, the said juvenile has already been under detention for a period more than the statutory period. Therefore, considering the fact that the Appellant has already suffered imprisonment/detention for a period more than the period prescribed by the Section 15(g) of the Act, 2000 for ends of justice we feel it appropriate to examine the correctness of the impugned judgment and order for the purpose of ascertaining the sustainability of the impugned conviction. 10. Therefore, considering the fact that the Appellant has already suffered imprisonment/detention for a period more than the period prescribed by the Section 15(g) of the Act, 2000 for ends of justice we feel it appropriate to examine the correctness of the impugned judgment and order for the purpose of ascertaining the sustainability of the impugned conviction. 10. Admittedly, in the present case, there is no eye witness to the occurrence. The prosecution case roots on the extra-judicial confession, alleged to be made before PW5 and the recovery of a shirt alleged to be used by the Appellant and recovery of a dagger, alleged to be purchased by the Appellant from PW7. In order to appreciate the evidence on record, we feel inclined to, briefly, recapitulate the evidence, adduced on behalf of the prosecution, as below: 11. Sri Anup Kumar Roy, who deposed as PW1, stated that he got the information regarding the murder of the deceased on the next morning. He stated that the Appellant used to work as a helper under the deceased. He further stated that the Darogababu, i.e., the Investigating officer had shown him the seized articles and that he did not know from where the said articles were collected and brought by the Investigating Officer. 12. PW2 Sri Jiban Das, who was also an employee of the deceased, stated that he along with others went to the roof of the deceased and found the deceased lying in injured condition. He further stated that he saw one shirt lying on the second floor at a distance of 3 to 4 cubits from the deceased. 13. Sri Jagadish Chandra Saha (PW3) was the father of accused Smt. Manika Podder (since acquitted), i.e., the wife of the deceased. This witness did not state anything against the accused persons. 14. Sri Santanu Podder, the son of the deceased, deposing as PW4, stated that he did not know as to how his father was murdered. 15. PW5, Sri Sujit Sarkar stated that he knew the Appellant Pradip Sarkar, who was a carpenter and that the Appellant had confessed before him that he on being asked by the wife of the deceased had committed the murder of the deceased. After about 10 to 12 days from the date of making the said confession by the Appellant, this witness came to Agartala and informed the police. After about 10 to 12 days from the date of making the said confession by the Appellant, this witness came to Agartala and informed the police. In his cross-examination, this witness stated that the Appellant did not have cordial relation with him. He further stated that he was not in a position to say the date, on which the Appellant had confessed about the commission of the offence. He further stated that even after coming to know about the involvement of the accused, he did not inform anybody except the Investigating Officer. During his cross-examination, this witness admitted that he was involved in many criminal cases including theft of television set from the Lawyers' Bar Association, Agartala. From the evidence of this witness, it is found that this witness was involved in many criminal cases and as such he does not appear to be a reliable and trustworthy person. That apart, the fact that he had informed the police after about 10 to 12 days from the date of the said confessional statement and that he did not inform any other person during such a long period raises doubt about the veracity of his statement. The prosecution failed to put forward any reasonable cause for such inordinate delay. The suspicion about the reliability of the evidence of PW5 is fortified his admission that he did not maintain cordial relation with the accused-Appellant. Extra-judicial confession, is a very week type of evidence and such evidence can be acted upon if the person before whom such confession is made is found to be reliable and trustworthy. But above mentioned conduct of PW5 and his failure to report the mater to any person including police immediately after coming to know about the said disclosure makes it unsafe to rely on his evidence to hold the accused guilty. Therefore, in the absence of any corroboration on material point, we do not find it safe to rely on the said extra-judicial confession, alleged to be made by the Appellant. 16. PW6 Sri Manas Pal was a witness to the seizure of a letter written by the Bengali Volunteer Force to the Editor, Syandan local daily. This seizure does not bear any substance against the Appellant. 17. Sri Ratan Podder, who was a younger brother of the deceased, deposed as PW6(a). He stated nothing incriminating against the Appellant. 18. 16. PW6 Sri Manas Pal was a witness to the seizure of a letter written by the Bengali Volunteer Force to the Editor, Syandan local daily. This seizure does not bear any substance against the Appellant. 17. Sri Ratan Podder, who was a younger brother of the deceased, deposed as PW6(a). He stated nothing incriminating against the Appellant. 18. PW7, Sri Bikash Karmakar, who was a Blacksmith by profession, stated that the Appellant had placed an order with him for manufacturing a knife and accordingly, he had manufactured and sold the same to the Appellant. He stated that the knife was 9 inches in length with a handle. This witness identified the knife seized by the Investigating Officer. In his cross-examination and that he used to manufacture such type of knife earlier also. He further stated that he did not manufacture knife beyond 5 inches in length and that such type of knives were manufactured by others also. We will take up the evidentiary value of this witness at a later part of this judgment. 19. PW8 Sri Montosh Podder, a younger brother of the deceased stated that he saw blood on the roof of the house of the deceased. He further stated that Sri Bimal Ghosh, an employee of Tapan Podder had told him that the Appellant had murdered the deceased. This evidence, being hearsay evidence, cannot be acted upon. 20. Sri Shyamal Sukladas, who deposed as PW9, stated that he escorted the dead body to the hospital for post mortem examination. 21. Sri Partha Chetri who deposed as PW10 was a witness to the seizure of two binding khatas. 22. PW11 Sri Mihir Das, who was the O.C. of the West Agartala PS received the written FIR, lodged by Sri Tapan Kumar Saha.and he registered the case. 23. PW12, Sri Suranjan Gupta, who was a Sub-Inspector of Police, West Agartala PS stated that he was entrusted with the investigation of the case and that during the pendency of the investigation, he was transferred elsewhere. 24. PW13, Sri Sanjoy Biswas, who was a Sub-Inspector of Police stated that he was also entrusted with the investigation of the case and that during his tenure in the police station he could not obtain the CFSL report. 25. Smt. Sabita Sarkar, who worked as a maid-servant in the house of the deceased, deposed as PW14. 24. PW13, Sri Sanjoy Biswas, who was a Sub-Inspector of Police stated that he was also entrusted with the investigation of the case and that during his tenure in the police station he could not obtain the CFSL report. 25. Smt. Sabita Sarkar, who worked as a maid-servant in the house of the deceased, deposed as PW14. She stated that, on the night of occurrence, she on being called by Sri Manika Podder woke up from sleep and that on being asked by her, she opened the collapsible gate. She also stated that Smt. Manika Podder had told her that some thieves had entered the house. She further stated that, on being called by Smt. Manika Podder, she went to the room of the second floor and found the dead body of the deceased in naked condition with injuries on his person. According to this witness Smt. Manika Podder had shown her a shirt, lying on the floor, which she could identify to be the shirt of the Appellant. She also found a weapon lying on the floor. This witness stated that the Appellant used to work under the deceased and as such she had seen him earlier. From her evidence, it is found that the shirt found on the roof belonged to the accused-Appellant. It is also found that the Appellant, earlier worked as a helper of the deceased. The finding of the shirt, belonging to the Appellant in the place of occurrence cannot be substantive evidence to believe that the accused had left the same after committing the offence. No evidence has been adduced to connect the said shirt with the murder of the deceased. 26. Sri Swapan Saha deposing as PW15 stated that he came to know from Smt. Manika Podder that Pradip Sarkar trespassed into her bed room and that she and the deceased had chased him to the roof. None of the witnesses corroborated the said statement of this witness. 27. Sri Parimal Sarkar, PW16 was the younger brother of the Appellant. He did not state anything against the accused. Similarly, PW17 Sri Krishna Sarkar also did not state anything against the Appellant. 28. None of the witnesses corroborated the said statement of this witness. 27. Sri Parimal Sarkar, PW16 was the younger brother of the Appellant. He did not state anything against the accused. Similarly, PW17 Sri Krishna Sarkar also did not state anything against the Appellant. 28. Sri Tapan Lal Chakraborty who, deposed as PW18, stated that on being asked, Smt. Manika Podder had told him that, when they were sleeping in their bed room, they saw the accused Pradip Sarkar in the room and that they had chased him to the roof. 29. The evidence of P Ws 15 and 18 that they were told by Smt. Manika Podder regarding entry of the Appellant into the bed room of the deceased is a hearsay evidence. Therefore, for want of corroboration, we do not find it safe to rely on the evidence of the said witnesses to believe that the Appellant was found by the wife of the deceased in their bed room. 30. PW19, Sri Banatosh Podder, i.e., the younger brother of the deceased stated that on the following day, he met his sister-in-law, i.e., the accused Smt. Manika Podder who had told him that she and her deceased husband saw one person going to the roof of the second floor and that they had followed him. He further stated that his sister-in-law informed him that she after fetching the torch light found the deceased lying in a pool of blood with injuries on his person. 31. Scrutinizing the evidence of P Ws 15, 18 and 19, it is found that according to P Ws 15 and 18, accused Smt. Manika Podder had told them that the Appellant Pradip Sarkar was found in their bed room. But according to PW19, her sister-in-law, i.e., Smt. Manika Podder told him that she saw one person going to the roof. If PW19 is believed then it must be held that accused Smt. Manika Podder could not identify the person who entered their bed room. If Smt. Manika Podder disclosed the name of the Appellant before P Ws 15 and 18 there was no reason to withhold the name of the Appellant from PW19 and say that she saw one person going to the roof of the house. If Smt. Manika Podder disclosed the name of the Appellant before P Ws 15 and 18 there was no reason to withhold the name of the Appellant from PW19 and say that she saw one person going to the roof of the house. Therefore, we do not find it safe to believe the evidence of P Ws 15 and 18 that the accused Smt. Manika Podder had told them that Pradip Sarkar was found in the bed room or in the roof of the house of the deceased. 32. PW20 Smt. Tapasi Ghosh stated that she used to work in the house of the deceased and that on being called by Manika Podder aforesaid she saw the deceased lying in bleeding condition on the roof of their house. She further stated that Smt. Manika Podder had told her that the Appellant Pradip Sarkar was found in the bed room and that he rushed towards the second floor. According to this witness, Smt. Manika Podder further informed her that Pradip Sarkar went to the roof of the house followed by her husband and that she (Manika) after fetching the torch light found her husband lying dead. In our considered opinion, this evidence of PW20 is also nothing but hearsay evidence and in view of the discussion made in respect of the evidence of P Ws 15, 18 and 19 we do not find it safe to rely on such hearsay evidence. 33. PW 21, Smt. Anjali Acharjee, stated that she came to know from the wife of the deceased that one employee, named Pradip Sarkar, was found going towards the roof from their bed room. This witness was a tenant under the deceased. According to this witness, Smt. Manika Podder had told her that accused Pradip Sarkar was seen going towards the roof of the house from their bed room. This evidence is also nothing but a hearsay evidence and in view of the earlier discussion, we are not inclined to rely on such evidence to believe that Pradip Sarkar was found in the bed room of the deceased. 34. PW 22 Sri Ranjit Sarkar and PW 23 Sri Pranab Kumar Saha stated nothing against the accused persons. 35. Sri Pranab Kumar Saha, the brother of Manika Podder deposed as PW 24. 34. PW 22 Sri Ranjit Sarkar and PW 23 Sri Pranab Kumar Saha stated nothing against the accused persons. 35. Sri Pranab Kumar Saha, the brother of Manika Podder deposed as PW 24. He stated that he came to know from his sister that Pradip Sarkar, who was an employee of the deceased, entered the bed room of the latter and that he was chased to the roof by the said couple. According to this witness, Manika Podder came down to fetch a torch light and she (Manika) after returning to the roof found that the deceased was murdered. According to this witness, he came to know from his sister after about 10 to 15 days from the date of occurrence. His evidence regarding involvement of the Appellant being hearsay evidence does not inspire confidence to rely on his statement. 36. PW 25, Sri Benulal Kar, who was the Assistant Sub-Inspector of Police filled up the printed FIR form and he exhibited the Exts.12 and 13. 37. PW 26, Sri Ratan Deb stated that the Officer-in-Charge of the police station had entrusted the case to him for investigation, but during pendency of the investigation, he was transferred from concerned police station. 38. Sri Rupak Acharjee, who deposed as PW 27, stated that on being informed, he rushed to the hospital. He was a witness to the inquest conducted by the Investigating Officer. He stated that the wife of the deceased had told him that Tapan Podder was murdered by Sri Pradip Sarkar, who was an employee of the deceased. This evidence given by PW 27 is a hearsay evidence. That apart, according to P Ws 15, 18, 19 and 21 stated that they were also told by Manika Podder that she found the Appellant in their bed room and that the Appellant was chased by her husband and herself to the roof of the house. Smt. Manika Podder did not tell the said witnesses that accused Pradip Sarkar had murdered the deceased. But according to PW 27 Sri Manika Podder had told him that accused Pradip Sarkar had murdered the deceased. If Smt. Manika Podder knew that the Appellant had murdered the deceased then there was no reason not to disclose the said vital fact to the said witness. Therefore, it is doubtful if she informed the said witness about the involvement of the Appellant. If Smt. Manika Podder knew that the Appellant had murdered the deceased then there was no reason not to disclose the said vital fact to the said witness. Therefore, it is doubtful if she informed the said witness about the involvement of the Appellant. In view of the above, we find no corroboration in the statement of the said witnesses in respect of the information revealed by Manika Podder with regard to the involvement of the Appellant. That apart, the said evidence being hearsay evidence lacks merit. 39. PW 28, Ms. Swapna Podder, PW 29 Dr. Pijush Kanti Das and PW 30 Dr. Raichand Saha stated nothing against the accused person. 40. Sri Tapan Kumar Saha, a cousin of accused Smt. Manika Podder deposed as PW31. He stated that on the night of the occurrence on being informed by an employee of Smt. Manika Podder, he rushed to her house and found her weeping in her room. According to this witness, accused Smt. Manika Podder had told him that on the night of the occurrence while they were sleeping in their bed room, she saw a man running away from their room and that they had chased the person, but due to darkness they could not see the man properly. He further stated that accused Smt. Manika Podder, after fetching a torch light from her room, returned to the roof of the building and saw her husband lying on the roof with bleeding injuries. According to this witness, her sister Manika Podder could not identify the person, who was chased-to the roof from their bed room. 41. Sri Ratan Lal Bhadra, an SI of police who deposed as PW32 stated that on the night of 17.7.1996 at about 4-10 a.m., he received a telephone call from one Satyanarayan Saha to the effect that the deceased Tapan Podder was murdered. On receipt of the said information, he entered the same in the GD entry and informed the DSP, Central as well as to the O.C., West Agartala PS. He further stated that he rushed to the place of occurrence to ascertain the correctness of the information and found the deceased in the GB hospital, who was brought dead. PW32 prepared the inquest report and launched investigation into the matter. 42. Sri Sanat Paul, an SI of Police deposed as PW 33. He further stated that he rushed to the place of occurrence to ascertain the correctness of the information and found the deceased in the GB hospital, who was brought dead. PW32 prepared the inquest report and launched investigation into the matter. 42. Sri Sanat Paul, an SI of Police deposed as PW 33. He stated that he completed the investigation and submitted the charge sheet against the accused persons. 43. Considering the entire evidence on record, we find that except the evidence of PW 5 regarding extra-judicial confession alleged to be made by the Appellant and the evidence of PW 7 regarding purchase of the dagger by the Appellant, there is no other incriminating evidence against the Appellant. 44. We have already discussed that the evidence of PW5 regarding extra-judicial confession cannot be relied upon for want of corroboration. There is nothing on record to find that the dagger alleged to be purchased by the Appellant from PW7 was used by the Appellant for committing the murder. No finger print of Appellant, if available on the dagger, has been proved to substantiate that the said dagger was handled/ used by the Appellant. In absence of any substantive evidence regarding use of the said dagger by the Appellant, finding of the dagger in the place of occurrence and the evidence of PW7 that the accused had obtained a similar type of dagger from him, inasmuch as such type of daggers are available in the market, cannot be sufficient and conclusive evidence to safely hold that the same was used by the Appellant. 45. It is settled law that in a criminal case, burden lies upon the prosecution to establish its case beyond all reasonable doubt and in the event of possibility of two inferences, i.e., one going in favour of the accused person and the other in favour of the prosecution, the benefit should always go in favour of the accused person. 46. The circumstantial evidence that the Appellant had obtained a similar type of the dagger from PW7, that his shirt was found in the place of occurrence and that he worked under the deceased cannot be sufficient conclusive circumstantial leading to the only conclusion that none other than the Appellant had committed the alleged offence. The said circumstances does not rule out the innocence of the Appellant. 47. The said circumstances does not rule out the innocence of the Appellant. 47. In the light of the above discussion, we are of the considered opinion that it is quite doubtful as to whether the Appellant had committed the alleged offence or not. Therefore, in our considered opinion this is a fit case where the benefit of doubt should be given to the Appellant. 48. Therefore, considering the entire facts and circumstances, we do not find it safe to hold the Appellant guilty of the offence charged against him. Accordingly, we allow the appeal and set aside the impugned conviction and sentence recorded against the Appellant. The accused-Appellant be set at liberty forthwith. Return the records of the trial court. Appeal allowed