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2010 DIGILAW 842 (GAU)

Gautamdas v. State of Tripura

2010-11-10

C.R.SARMA, I.A.ANSARI

body2010
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 17.07.06, passed by the learned Addl. Judge, West Tripura, Agartala, in S.T. (WT/A) No. 30 of 2005, is in challenge in this appeal. By the impugned judgment and order, the learned Sessions Judge convicted the Appellants under Sections 148 and Section302 read with Section 149 of the Indian Penal Code (for short 'IPC') and sentenced each of them to suffer imprisonment for all for life and pay a fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for another period of six months. It was provided that the period of detention, already undergone by the Appellants, shall be treated as set off under Section 428 of the Code of Criminal Procedure (for short 'Code of Criminal Procedure'). 2. The case of the prosecution, as revealed at the trial, may, in brief, be described thus: On 23.11.03, at about 9 pm, 12 persons, riding motor bikes, entered the premises of Smt. Sabita Debnath (P.W. 1) i.e. the wife of late Jiban Debnath, by breaking open their gate and asked her the whereabouts of her husband (hereinafter called 'the deceased'). Amongst the said miscreants, PW1 could recognize Sri Gautam Das (Appellant), Sri Sunil Das, Sri Shankar Das, Sri Sefal Das, Sri Parimal Das and Sri Jiban Das (Appellant). Failing to find the deceased in his house, the said persons, again, at 10 pm, visited the house of the deceased. As Smt. Sabita Debnath informed the said visitors about the non-availability of her husband, the miscreants left the place threatening that her husband would be killed in her presence. On the same night, the deceased, while returning home from his in-law's house, was assaulted by the Appellants, Sri Sunil Das and 10/12 other persons, being armed with dao and stik, near a brick field, causing injuries to him. The said occurrence was seen by P Ws 2 and 3 (the parents-in-laws of the deceased). Soon after the miscreants had left the place, leaving the injured at the said place of occurrence, the injured was taken to the G.B. Hospital, Agartala, where he succumbed to his injuries. The wife of the deceased lodged a written FIR (Ext.-1), on the next day of the occurrence, i.e. on 24.11.03, with the East Agartala PS, West Tripura. Soon after the miscreants had left the place, leaving the injured at the said place of occurrence, the injured was taken to the G.B. Hospital, Agartala, where he succumbed to his injuries. The wife of the deceased lodged a written FIR (Ext.-1), on the next day of the occurrence, i.e. on 24.11.03, with the East Agartala PS, West Tripura. After receipt of the said FIR, police registered a case, being East Agartala PS case No. 197 of 2003 under Sections 148/302/149 IPC (Ext-1), against the present Appellants and five others. During the course of investigation, police visited the place of occurrence, examined the witnesses, prepared inquest report in respect of the dead body of the deceased and subjected the same to autopsy. At the completion of the investigation, police laid charge-sheet against eight persons, including the present Appellants, under Sections 148/302/149 IPC. Accused Sri Sunil Das and Sri Biplab Biswas were shown as absconders. Subsequently, on his appearance, Sri Biplab Biswas faced trial in this case. 3. The offence, under Section 302, IPC being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charges against six persons, including the two Appellants, under Section 148 and Section 302 read with Section 149 IPC, to which they pleaded not guilty and claimed to be tried. 4. In support of its case, prosecution examined as many as 18 witnesses. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Code of Criminal Procedure. In their examination aforesaid, they denied that they had committed the offences, alleged to have been committed by them. Their plea was a complete denial one. The defence declined to adduce evidence. 5. On conclusion of the trial, the learned Sessions Judge, acquitted (1) Sri Sefal Das, (2) Sri Parimal Das, (3) Shankar Das, (4) Manish Das and (5) Biplab Biswas, under Section 232 Code of Criminal Procedure for want of sufficient evidence against them. Hence, the case proceeded against the present Appellants. Finding sufficient evidence against the Appellants, under Section 148 and Section 302 read with Section 149 IPC, the learned trial Judge convicted and sentenced them as aforesaid. Aggrieved by the conviction and sentences passed against them, the Appellants have carried this appeal to this Court. 6. We have heard Mr. J. M. Choudhury, learned Senior counsel, appearing for the Appellants. We have also heard Mr. Aggrieved by the conviction and sentences passed against them, the Appellants have carried this appeal to this Court. 6. We have heard Mr. J. M. Choudhury, learned Senior counsel, appearing for the Appellants. We have also heard Mr. D. Sarkar, learned Public Prosecutor for the State. 7. Mr. J.M. Choudhury, learned Sr. counsel, appearing on behalf of the Appellants, has submitted, that except the evidence of P Ws 2 and 3, who were the near relatives, being the parents-in-laws of the deceased, there is no other evidence, on record, to connect the present Appellants with the death of the deceased. The learned Senior counsel has contended that the evidence of these two witnesses to the effect that they saw the occurrence, is not at all believable on the ground that, as recorded by the learned trial Judge, PW 2 i.e. the mother-in-law of the deceased did not disclose before the I.O., at the time of giving statement under Section 161 Code of Criminal Procedure, regarding witnessing the occurrence and that mere is no endorsement in respect of the LTI of PW 3 i.e. the father-in-law of the deceased. It is also submitted, by the learned senior counsel, that the Investigating Officer, in his evidence given as PW 18, clearly stated that PW 2 and PW 3 did not tell him names of the assailants and that they could witness the occurrence. Therefore, it is contended, on behalf of the Appellants, that the statement of PW Nos. 2 and 3 to the effect that they had witnessed the occurrence and that they could identify the Appellants, being made before the Court for the first time, is nothing but exaggerated, concocted and improved version of the prosecution story and as such no reliance can be placed on the evidence of PW Nos. 2 and 3. Regarding the dying declaration, alleged to have been made by the deceased, before PW Nos. 4, 5 and 12, it is submitted, by the learned Senior counsel, that the evidence of the said witnesses does not indicate that the deceased, who was claimed to have sustained grievous injuries, was in a fit state of mind to make dying declaration. Regarding the dying declaration, alleged to have been made by the deceased, before PW Nos. 4, 5 and 12, it is submitted, by the learned Senior counsel, that the evidence of the said witnesses does not indicate that the deceased, who was claimed to have sustained grievous injuries, was in a fit state of mind to make dying declaration. The learned Senior counsel further contended that, the FIR being lodged on the next date, the unexplained delay in lodging the same and non-mentioning of the names of the accused persons and also the omission to mention in the FIR that the deceased had made a dying declaration, throw doubt about the prosecution version. With the above submission, learned Senior counsel contended that there is no sufficient, substantive and reliable evidence against the Appellants and that the learned trial Judge committed error by recording conviction and sentence as aforesaid. 8. Confronting the said argument, advanced by the learned Sr. counsel, appearing on behalf of the Appellants, Mr. D. Sarkar, learned Public Prosecutor submitted that, the FIR being an information calling upon the investigating agency to move the machinery of the investigation to unearth the truth, non-mentioning of the names of the culprits as well as omission to mention in the FIR the fact that the deceased had made dying declaration are not sufficient grounds to throw out the evidence given by the witnesses on oath, when their evidence has remained unshaken. The learned Public Prosecutor further submitted that, the dying declaration in question, being made in presence of three witnesses i.e. PW Nos. 4, 5 and 12, who had no enmity or ill feeling against the Appellants and there being nothing contrary regarding fitness/capability of the deceased to make such statement, it cannot be held that the said witnesses i.e. PWs 4, 5 & 12 had falsely deposed that the dying declaration was made by the deceased involving the Appellants. The learned Public Prosecutor also contended that, considering the facts and circumstances of the present case and the prevailing situation, in which the Informant as well as her parents had lost the deceased, failure to mention every details details regarding identity of the miscreants, the dying declaration, etc. in the FIR, lodged by the window of the deceased, cannot be fatal for the prosecution. in the FIR, lodged by the window of the deceased, cannot be fatal for the prosecution. It is submitted, by the learned Public Prosecutor, that as the occurrence had taken place at about 10 O'clock at night and the deceased having expired after his shifting to hospital for treatment, the lodging of the FIR, in such a situation, on the next date, cannot be treated with suspicion sufficient to disbelieve the prosecution version. It is also submitted, on behalf of the prosecution, that the attending circumstances, that the Appellants had visited the residence of P.W.I twice, prior to the occurrence, making queries regarding the whereabouts of the deceased, that they had threatened P.W. 1 that her husband would be killed, the direct evidence of the eye witnesses (P. Ws.2 and 3), the dying declaration made before the witnesses, the quarrel that had taken place between the deceased and Sri Sunil (accused) support the prosecution version, forming a complete chain of events pointing to the guilt of the Appellants. 9. For better appreciation of the contentions, raised by the learned senior counsel appearing for the Appellants, we would point out the statutory provisions and the procedure prescribed by Courts for proving contradictions and omissions. 10. In the case of Mangal Debbarma v. State of Tripura reported in 2009 (5) GLT 434, a Divisions Bench of this Court, while dealing with the procedure for recording contradiction/omission with regard to the statements made under Section 161 Code of Criminal Procedure, referred to the following observations made by another Division Bench of this Court the case of Gautam Das v. State of Tripura reported in 2008 (3) GLT 625. 41. Contradiction with previous statement of a witness-the manner: Noticing the wrong way the prosecution witnesses have been confronted during trial with their previous statements recorded during investigation, we take a break to focus the correct procedure to be followed in a criminal trial. On this important aspect, the ratio laid down by the Apex Court in Tahsildar v. State of UP AIR 1959 SC 1012 still holds the field and must be followed by all concerned. Before proceeding further to described the correct path culled out from the above citation, we would briefly see how the witnesses have been confronted with their previous police statements before the trial Court. Before proceeding further to described the correct path culled out from the above citation, we would briefly see how the witnesses have been confronted with their previous police statements before the trial Court. Ganesh Kol (PW 2) was in the boat with the victim and others, while crossing the river. He has stated everything about the occurrence of murder except identification of the assailants. He has stated, in examination-in-chief, that he could not identify any of the miscreants. He was declared hostile by the learned Public Prosecutor, who confronted PW 2 with the portion in his police statement, where the witness was claimed to have stated that he could identify Gautam Das, Tapan Das, Pradip and Asim Bhattacharjee. The learned trial Court recorded thus: attention of the witness to his previous statement recorded by I/O. is drawn and such statement is found there. The said statement is marked Exbt.2 subject to be proved by I/Q. We take a pause here to say, at the outset, that it is the function of the presiding office to draw attention of the witnesses to any part of his statement before police and, then, record that such statement is found or not found. It is the function of the Public Prosecutor to draw attention of the witness to his statement before police and, then, the Court shall record the answer exactly given by the witness. Only thereafter, the relevant portion should be provisionally marked for identification subject to confirmation by the Investigating Officer. Therefore, in our view, the matter should have been recorded in the following manner: the learned Public Prosecutor has drawn the attention of the witness to the portion of his police statement, where he is shown to have claimed that he could identify Gautam Das, Tapan Das, Pradip Das and Asim Bhattacahrjee; but the witness has denied to have made such statement as is claimed to have been recorded by the investigating officer. The relevant portion, in the police statement of this witness, is provisionally identified subject to confirmation by the investigating officer. If, on his appearance, at the trial, as a witness, the Investigating officer asserted that the witness, in question, did make the statement put to him, the Court should have, then, taken the statement, in question, as proved and marked the same as an Exhibit. If, on his appearance, at the trial, as a witness, the Investigating officer asserted that the witness, in question, did make the statement put to him, the Court should have, then, taken the statement, in question, as proved and marked the same as an Exhibit. As the case diary can not be handed over to the defence, such statement can be proved by nothing down the statement on a piece of paper and making the same 'as proved in original'. 11. In the above referred case, the Division Bench also referred to the following observations made by a Division Bench of this Court in Criminal Appeal No. 12 of 1982: Sri Mritunjay Chakma v. State of Tripura, decided on 3rd August, 1993. ...P Ws 2, 4 and 5 deposed mat the mother went near the injuried and asked him what happened and he told her that Mritunjay (Appellant) stabbed him and he will not survive. It was suggested in cross-examination of P.W. 4, that he did not mention about this dying declaration to the Investigating Officer. He denied the suggestion. We find a note made in the deposition by the learned Sessions Judge mere was no reference to it in the case diary statement. Of course, it may be open to the learned Sessions Judge for the purpose of verifying whether, a correct suggestion was being put to look into the case diary statement. However, we do not think it was any part of the duty of the learned Sessions to make a note in the deposition either that the case dairy statement contains reference to dying declaration or that it does not contain reference to it. We also find that the witness was not confronted with the case diary statement for the purpose of contradiction. Counsel who defend accused in criminal case would do well to appreciate the requirements of Section 145 of the Indian Evidence Act which postulates two different stages, namely, first stage of cross-examination of the witness as to previous statement made by him and the second stage of contradicting the witness by his previous statement. While, in the first stage, it is not necessary to call his attention to his previous statement, in the second stage, it is necessary to call his attention to those parts of the statement which are to be used for the purpose of contradicting him. While, in the first stage, it is not necessary to call his attention to his previous statement, in the second stage, it is necessary to call his attention to those parts of the statement which are to be used for the purpose of contradicting him. If he admits the contradictory statement (affirmative or negative), the Sessions Judge may merely record it. If he denies the contradictory, statement the Sessions Judge will record the denial. The defence counsel would be well advised in the case of a positive contradiction to get the relevant portion marked tentatively subject to proof. Of course, no part of the statement can be marked in the case of an omission. Where the witness denies the contradictory previous statement, it requires proof through the Investigating Officer, who questioned him. No attempt was made to contradict PW 4 with reference to omission in the previous statement. We find that no attempt was made to prove the omission, when the Investigating Officer was being examined. We would like to point out that even if the defence counsel fails in the discharge of his duty, the learned Sessions Judge cannot be a silent spectator. Where it is obvious to him that there is a contradiction as asserted by a witness, he would do well to alert the defence counsel so that requirements of Section 145 are satisfied. However, in the circumstances, we would not like to rely, on the dying declaration spoken to by PW 4 but we find no uniformity in the dying declaration of PWs 2 and 5. There is nothing in the evidence to indicate that the injuried was not a position to speak a few words. 12. We respectfully agree with and reiterate the position of law with regard to the manner of proving of the contradictions between evidence given by a witness in the Court and his previous statement recorded under Section 161 Code of Criminal Procedure. 13. A statement, recorded under Section 161 Code of Criminal Procedure, can be used keeping in mind the restrictions imposed by Section 162 Code of Criminal Procedure The Investigating Officer, while examining a witness, is required to take into consideration all relevant materials, which go in favour of, or against, the accused. 13. A statement, recorded under Section 161 Code of Criminal Procedure, can be used keeping in mind the restrictions imposed by Section 162 Code of Criminal Procedure The Investigating Officer, while examining a witness, is required to take into consideration all relevant materials, which go in favour of, or against, the accused. Under the provisions of Section 162 Code of Criminal Procedure if any witness is called by the prosecution, in inquiry or trial, whose statement has been reduced into writing, any part of the statement, if duly proved, may be used by the accused and, with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. 14. The proviso to Section 162 Code of Criminal Procedure enables the accused to use the statement made to a police officer in the course of an investigation under Chapter XII, Code of Criminal Procedure only to contradict in the manner as provided by Section 145 of the Evidence Act. His attention must be drawn to that part of the statement, made before the police, which is contradictory to his statement made before the Court on oath, at the time of giving evidence. If he admit his earlier statement, no further proof is required. But if he denies his earlier statement, then, the particular portion of the statement, which is contradictory, is to be brought on record with the denial statement made by the witness for the purpose of obtaining proof thereof, when the concerned police officer is examined. As provided by Section 162 Code of Criminal Procedure, the burden of confronting a witness with such contradictory previous statement is on the accused. However, the prosecution also can contradict a witness, in the said manner, with the permission of the Court. It is not the duty of a trial Judge to contradict a witness by his previous statement. A trial Judge's duty is only to put to the witness a statement, sought to be proved as the previous statement of the witness. However, the prosecution also can contradict a witness, in the said manner, with the permission of the Court. It is not the duty of a trial Judge to contradict a witness by his previous statement. A trial Judge's duty is only to put to the witness a statement, sought to be proved as the previous statement of the witness. It the witness denies to have made the statement, attributed to him, the trial Judge is required to put the statement to the police officer, who claims to have recorded the statement and, if the police officer asserts that such a statement was made by the witness, then, the trial Judge shall mark the statement, which the police officer asserts to have been made by the witness, as an Exhibit. Whether the statement, which is so marked, was or was not, as a matter of fact, made by the witness to the police officer, is a question of fact, which has to be decided by the trial Judge, while appreciating the evidence. 15. What follows from the above discussion is that the counsel for the prosecution or the defence, as the case may be, for the purpose of contradicting a witness with his previous statement, is required to bring that portion of the statement, which is sought to be contradicated, to the notice of the witness, inviting his response to such previous statement If he admits his previous statement, no further proof is necessary, if he does not admit, the practice, generally followed, is to admit it subject to proof thereof by the Investigating Officer. If the Investigating Officer, relying on the case diary, asserts that the witness, in question, did make the statement (which is contradictory to the statement made in the Court on oath), the court shall, then, mark the same as an exhibit Similarly, if an omission, on the part of a prosecution witness, is sought to be proved, then, the defence or the prosecution, as the case may be, may suggest to the concerned witness that he did not make, at the time of giving statement before the Investigating Officer, any such statement, which he has made in the Court Such suggestion, if denied by the witness concerned, is to be proved by asking the Investigating Officer, during his examination, as a witness to the effect as to whether the witness concerned had made such a statement before him or not. If the Investigating Officer relying on the case diary, answers in the negative, then, the statement made by the witness, on oath, in the Court, can be treated as omission. 16. In the light of the above discussed principles of law and the established procedure of proving of contradictions, we felt it necessary and appropriate to peruse the case diary, maintained by the Investigating Officer, in this case, and the statements of witnesses, shown to have been recorded by the Investigating Officer, under Section 161 Code of Criminal Procedure. 17. On carefully perusing the evidence, recorded by the learned trial Judge, we find that PW1, in her cross-examination, stated, I stated to police that the accused-persons threatened to kill my husband. However, the learned trial Judge, after recording the said statement made by PW1, recorded as follows: Attention was drawn to the witness but no such statement was found in the FIR. PW 1 made the said statement, with reference to a question, put to her by the defence, as to whether she had made such a statement before the police or not. But the learned trial Judge, referring to the FIR, recorded that no such statement was made in the FIR. On perusing the case diary, we notice that the Investigating Officer, while examining PW1, under Section 161 Code of Criminal Procedure, has shown to have recorded that she had stated before him (i.e., Investigating Officer) that the miscreants at the time of leaving her house, had threatened her that they would kill her husband. On perusing the case diary, we notice that the Investigating Officer, while examining PW1, under Section 161 Code of Criminal Procedure, has shown to have recorded that she had stated before him (i.e., Investigating Officer) that the miscreants at the time of leaving her house, had threatened her that they would kill her husband. Whether, as a matter of fact, such a statement had been made by PW 1 to the Investigating Officer or not, is a question, which could have been answered only by the Investigating Officer and he was the best person to prove whether such a statement, as claimed by PW 1, had or had not been made by her. 18. In view of the above statements, as shown to been recorded, in the case diary, by the Investigating Officer, we have no escape but to conclude that the learned trial Judge failed to correctly apply the law to the case at hand. As per the established procedure, the Investigating Officer ought to have been asked to state, on oath, before the Court, as to whether or not PW 1 had made any statement before him, as claimed by her at the trial, that she had been threatened by the accused persons. Here, the learned trial Judge committed error in recording, without examination of the Investigating Officer, that attention of the witness was drawn and that no such statement was made in the FIR. 19. Similarly, PW 2 (i.e., the mother-in-law of the deceased), in her cross-examination, stated: I stated to police that narrated the names of the miscreants and that we witnessed the occurrence. Attention was drawn but no such statement was found. The learned trial Judge, thus, on his own indicated that no such statement was made by PW 2 before the Investigating Officer, without putting the witness's statement to the Investigating Officer and eliciting his confirmation thereto. 20. On perusal of the case diary, we notice that the Investigating Officer, while recording the statement of PW 2, under Section 161 Code of Criminal Procedure, has shown PW 2 to have stated that she and her husband had accompanied the deceased, that in the focus of torch light, which was in the hand of her husband, they saw the miscreants assaulting the deceased and that they had begged the assailants not to assault the deceased, but they did not respond to their request. The Investigating Officer further appears to have recorded that she (PW 2) stated that, in the focus of torchlight, which was in the hand of her husband, she could identify Sri Gautam Das, Sri Sefal Das, Sri Sankar Das, Sri Parimal Das, Sri Sunil Das and Sri Biplab Biswas and Sri Mani Das etc. As the Investigating Officer had examined the said witnesses under Section 161 Code of Criminal Procedure, he was the best person to depose as to whether the said witness had, or had not, as a matter of fact made any such statement before him. It was not the duty of the learned trial Judge to prove as to whether such a statement was made by the witness under Section 161 Code of Criminal Procedure or not. 21. The Investigating Officer, who deposed as PW 18, stated that PW No. 3 did not tell him the names of the assailants that they had witnessed the occurrence and that they could identify the assailants. He also stated that PW 3 did not tell him that he could identify the miscreants in the focus of the torch light near the brick field. But, on carefully perusing the case diary, we notice that the Investigating Officer has shown to have recorded that the witness had seen the occurrence and that he could identify the miscreants, including the Appellants, in the focus of the torch light carried by PW3. 22. While considering the manner of recording by the learned trial Judge, it needs to be borne in mind that it is the Investigating Officer, who is the competent person to tell and/or prove as to whether a statement, as claimed by a witness, had or had not been made to the Investigating Officer, and/or as to when and where the statement of a given witness had been recorded. 23. Considering the entire aspect of the matter, we are of the opinion that, it would be in the interest of justice, if an opportunity is given to the Appellants to prove the contradictions as well as the omissions according to the established procedure of law. 23. Considering the entire aspect of the matter, we are of the opinion that, it would be in the interest of justice, if an opportunity is given to the Appellants to prove the contradictions as well as the omissions according to the established procedure of law. Therefore, without entering into the merit of the case, we feel it just and appropriate to remand the matter to the trial Court so that the witnesses aforementioned are recalled for their examination afresh so far as the contradictions, as alleged by the defence, are concerned in order to enable the defence to prove the contradictions, if any, as per law. 24. In view of the above discussion, we quash and set aside the impugned judgment and order passed by the learned trial Judge. Consequently, the impugned conviction and sentence stand set aside. Accordingly, the matter is remanded to the trial Court for disposal as indicated above. 25. However, as the matter is required to be taken up for disposal by the learned trial Judge, immediately after receipt of the records, we feel it appropriate not to release the accused-Appellants on bail. They shall be produced before the learned trial Judge, as and when so directed by the learned trial Judge. Considering the delay, already caused, we direct that the learned trial Judge shall dispose of the matter within three months from the date of receipt of the records, by holding day-to-day trial, if necessary. 26. With the above direction, as indicated above, this appeal is disposed of. Return the lower Court records along with a copy of this judgment and order to the trial Judge immediately. Petition dismissed.