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2011 DIGILAW 648 (GAU)

Rajendra Reang v. State of Tripura

2011-08-03

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 12.12.2005, passed by the learned Sessions Judge, North Tripura, Kailashahar, in Sessions Trial Case No. 66(NT/K)2005, under Sections 364 and 392 of the Indian Penal Code (hereinafter called "IPC") read with Section34 IPC, whereby and where under, the learned Sessions Judge convicted the Appellant under Sections 364 and 392 IPC read with Section 34 IPC and sentenced him to suffer rigorous imprisonment for ten years and pay fine of Rs. 1,000/-, in default suffer rigorous imprisonment for another period of six months, for his conviction under Section 364 IPC. The learned Sessions Judge also sentenced the Appellant to suffer rigorous imprisonment for five years and pay fine of Rs. 500/-, in default suffer rigorous imprisonment for another period of three months, for his conviction under Section 392 IPC. It has been directed that, both the sentences shall run concurrently. Aggrieved by the said judgment and order of conviction and sentence, the convict, as Appellant, has come up with this appeal under Section 374 of the code of Criminal Procedure (hereinafter called "Code of Criminal Procedure"). 2. Heard Mr. Nepal Majumder, learned Counsel, appearing for the Appellant and Mr. R.C. Debnath, learned Special Public Prosecutor, appearing for the State-Respondent. 3. The prosecution case, in brief, may be stated as follows: On the night of 06.12.2003, at about 8.30 pm, some miscreants along with the Appellant, being armed with pistol, dagger etc., went to the house of Sri Rabi Rai Reang (PW.2) i.e. the informant of this case and enquired about his availability. Sri Rabi Rai Reang (hereinafter called 'the informant'), who was, at the relevant time in the house of Sri Labanga Reang (PW.6), coming to know about the arrival of said miscreants, rushed to his residence, and on his arrival in his house, the miscreants aforesaid, forcefully took him towards the nearby jungle and threatened to kill him. According to the informant, the miscreants had threatened that unless an amount of Rs. 2,00,000/- was paid to them, they would kill him. On being so threatened, the informant asked the miscreants to take whatever was available in his house. Accordingly, the miscreants took the informant to his house and after breaking open the lock of the wooden chest, took away an amount of Rs. 1,05,000/-. 2,00,000/- was paid to them, they would kill him. On being so threatened, the informant asked the miscreants to take whatever was available in his house. Accordingly, the miscreants took the informant to his house and after breaking open the lock of the wooden chest, took away an amount of Rs. 1,05,000/-. As revealed during the trial, the informant could recognize/identify the Appellant and another one, namely Sri Lataham Reang. The informant, on the following day, came to know that, the miscreants, after leaving his house, on the same night had entered the house of Sri Abhairam Reang (PW.4) and took away Rs. 13,300/- from his house. 4. The informant, on 19.12.2003, lodged a FIR with the Officer Incharge, Longtharai Valley Police Station. On receipt of the FIR, police registered L.T.V. P.S. Case No. 16/2003, under Section394/34 IPC and launched investigation into the matter. As all other accused persons except the present Appellant, absconded, police, at the close of the investigation, submitted charge sheet against the accused persons under Sections 364 and 392 IPC read with Section 34 IPC, showing the other accused persons as absconders. Hence, the present Appellant faced the trial. 5. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 1st Class, Kailashahar, North Tripura, committed the case to the court of the learned Sessions Judge, Kailashahar, North Tripura. Accordingly, the learned Sessions Judge, considering the materials on record, framed charges against the Appellant, under Sections 364 and 392 IPC read with Section 34 IPC. The charges were read over and explained to the accused Appellant and he pleaded not guilty. He claimed to be tried. 6. In order to prove their case, the prosecution examined as many as 8(eight) witnesses, including the Investigating Police Officer. At the close of examination of witnesses for the prosecution, the accused/Appellant was examined under Section 313 Code of Criminal Procedure He denied the allegations, brought against him and declined to adduce any defence evidence. 7. The learned Sessions Judge, considering the evidence on record, found the Appellant guilty of the offences under Sections 364 and 392 IPC read with Section 34 IPC and accordingly, convicted and sentenced him, as indicated above. 8. Mr. 7. The learned Sessions Judge, considering the evidence on record, found the Appellant guilty of the offences under Sections 364 and 392 IPC read with Section 34 IPC and accordingly, convicted and sentenced him, as indicated above. 8. Mr. Majumder, learned Counsel, appearing for the Appellant, taking this Court through the evidence on record, has submitted that though the occurrence took place on 06.12.2003, the FIR having been lodged on 19.12.2003, there was inordinate delay in lodging the FIR, and that the delay not being satisfactorily explained, was fatal for the prosecution. The learned Counsel, also referring to the evidence of the sole eye witness i.e. PW.2, who lodged the FIR, stated that there is major contradiction in the oral evidence given by PW.2 as well as in the FIR (Ext.1) regarding the mode of identification of the Appellant. The learned Counsel has submitted that, as per the FIR, the informant could identify the accused persons in the light of the lantern, whereas in his evidence, given as PW.2, the informant stated that, as the accused persons had covered their faces, he could identify the Appellant and Sri Lataham Reang, on the basis of their voice. The learned Counsel has also submitted that the said contradiction on material point i.e. regarding the identity of the Appellant, negates the prosecution story regarding involvement of the Appellant. In support of his contentions, Mr. Majumder, learned Counsel for the Appellant, has relied on the following decisions: (1) Inspector of Police, T.N. v. Palanisamy @ Selvan, reported in AIR 2009 SC 1012 ; (2) Mazid Ali alias Abdul v. The State of Assam, reported in (1994) 1 GLR 198; (3) Kutu Mia and Ors. v. State of Assam and Anr., reported in (1991) 1 GLR 53. 9. Mr. R.C. Debnath, learned Special Public Prosecutor, appearing for the State-Respondent, supporting the impugned judgment and order, has submitted that there is sufficient evidence on record to show that the Appellant was identified by the informant, regarding his voice. The learned Special Public Prosecutor has further submitted that, as the Appellant and the informant belonged to the same village, the informant had no difficulty in recognizing his voice. Therefore, it is contended that the learned trial judge committed no error by recording the conviction and sentences as indicated above. The learned Special Public Prosecutor has further submitted that, as the Appellant and the informant belonged to the same village, the informant had no difficulty in recognizing his voice. Therefore, it is contended that the learned trial judge committed no error by recording the conviction and sentences as indicated above. In support of his contentions, the learned Special Public Prosecutor, has relied on the following decisions: (1) Prahllad Marak and Anr. v. The State of Tripura and Ors. reported in2006 TCR (38) (HC); (2) Kripal Singh v. The State of Uttar Pradesh reported in AIR 1965 SC 712 . 10. In order to appreciate the counter arguments, advanced by the learned Counsel, appearing for both the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to, briefly, scan the evidence on record. 11. Sri Rabi Rai Reang, who lodged the FIR, deposed as PW.2. He has exhibited the FIR, as Ext.1. In his evidence, the said informant stated that, the miscreants had taken him towards the jungle and asked him to pay them an amount of Rs. 2,00,000/- in lieu of his life. According to PW.2, he had requested the miscreants to take whatever was available in his house, and the accused persons had taken away an amount of Rs. 1,05,000/- after breaking open the lock of the wooden chest. He further stated that as the miscreants i.e. the accused persons had covered their faces with clothes he could identify Sri Rajendra Reang i.e. the present Appellant and another one, namely Sri Latabam Reang, on the basis of their voice. This witness stated that the accused persons were his co-villagers with whom he used to talk since long. He clearly stated that the Appellant and Sri Latabam Reang were well acquainted with him. This witness further stated that, out of fear, considering the safety and security of his life, he did not lodge the FIR immediately after the occurrence. He denied the suggestion that, with a view to falsely implicate the Appellant, he did not lodge the FIR immediately after the occurrence. He also denied the suggestion that he could not recognise the miscreants on the basis of their voice. 12. Sri Baranjoy Reang, who was a co-villager, deposed as PW.3. He was informed by the PW.2 about the occurrence. He also denied the suggestion that he could not recognise the miscreants on the basis of their voice. 12. Sri Baranjoy Reang, who was a co-villager, deposed as PW.3. He was informed by the PW.2 about the occurrence. This witness stated that, he was informed by the informant that the dacoits had looted Rs. 1,05,000/- from the informant's house and that he could identify Sri Rajendra Reang and Sri Lataham Reang, out of the said miscreants. This witness has no personal knowledge about the occurrence. His evidence being hear-say evidence, can't be treated as substantive evidence. Of course, he supported the evidence of PW.2 to the effect that the PW.2 has informed him about the identity of the Appellant. 13. Sri Abhairam Reang deposed as PW.4. He stated that the miscreants, on the night of the occurrence, entered his house and forcefully took away an amount of Rs. 13,300/- from his house. He also stated that he could identify the Appellant and one Sri Lataham Reang in the light of a hurricane lamp. He further stated that the face of the miscreants were covered with clothes and that he could identify the Appellant and Sri Lataham Reang on the basis of their voice. This witness was cross examined on behalf of the defence. He denied the suggestion that no such incident had taken place in his house. The learned Sessions Judge also refused to rely on the evidence of this witness. There is no challenge to the said findings of the learned Sessions Judge. Therefore, it is necessary to examine as to whether any such occurrence had taken place in the house of PW.4. 14. Sri Ramjoy Reang, younger brother of PW.2, deposed as PW.5. He stated that, though he was informed by Smti. Bhujanti Reang i.e. the daughter-in-law of PW.2 about the incident of dacoity, out of fear, he, immediately, did not go to the house of PW.2. According to this witness, after about one hour of the incident, he visited the house of PW.2 and he was informed by the latter that the miscreants had taken away an amount of Rs. 1,05,000/-. He further stated that his elder brother i.e. PW.2 told him that he could identify the Appellant and one Sri Lataham Reang on the basis of their voice. 1,05,000/-. He further stated that his elder brother i.e. PW.2 told him that he could identify the Appellant and one Sri Lataham Reang on the basis of their voice. From the evidence of this witness, it is found that he arrived in the place of occurrence after the incident and he had no personal knowledge about the occurrence. 15. Sri Labanga Reang, deposed as PW.6. He stated that he was informed that the miscreants had forcefully taken Rs. 1,05,000/- from the house of the informant after breaking open his wooden chest. This witness visited the house of PW.2, after the occurrence, and saw the broken lock of the wooden chest, lying on the floor. According to this witness, he was informed by PW.2 that he (PW.2) could identify the Appellant and Sri Lataham Reang. From the above, it appears that PW.6 also came to know about the involvement of the Appellant on the basis of the information received from PW.2. 16. Sri Ram Thanga Reang, who deposed as PW.7, is the son of the informant. According to this witness, on the day of occurrence, he was away from his house and, on the following day, after returning home, he came to know, from his father i.e. PW.2 and his wife Smti. Bhujanti Reang (PW.8), about the incident, which took place on the previous night. He stated that he came to know that the miscreants had forcefully taken away his father i.e. PW.2 and that they took away Rs. 1,05,000/-, after breaking open the wooden chest. According to this witness, his father could recognise the Appellant and Sri Lataham Reang. Admittedly, as this witness was not present, on the night of occurrence, he came to know about the alleged incident from the inmates of the house. 17. Smti. Bhujanti Reang, who is the daughter-in-law of the informant, deposed as PW.8. She stated that, on the fateful night, at about 8.30 pm, 4/5 persons arrived in their house and wanted to know about the whereabouts of her father-in-law i.e. PW.12. According to this witness, her father-in-law, at the relevant time, was in the house of Sri Labanga Reang. She informed the PW.2 about the arrival of the said persons. According to this witness, as soon as the PW.2 arrived in his house, the miscreants had forcefully taken him towards the jungle. According to this witness, her father-in-law, at the relevant time, was in the house of Sri Labanga Reang. She informed the PW.2 about the arrival of the said persons. According to this witness, as soon as the PW.2 arrived in his house, the miscreants had forcefully taken him towards the jungle. She stated that as her father-in-law was taken away by the miscreants, she out of fear, fled the house and returned after about one hour. She further stated that, on her return, she found the lock of their wooden chest was lying on the floor, in broken condition and that her father-in-law had informed her that the miscreants had taken away Rs. 1,05,000/- from the wooden chest by breaking the lock of the same. According to PW.8, her father-in-law had told her that he could recognise the Appellant and one Sri Lataham Reang. From the above, it appears that this witness had no personal knowledge regarding involvement of the present Appellant as well as Sri Lataham Reang in the connection with the alleged incident. 18. Carefully perusing the evidence on record, it is found that none except the PW.2 claimed to have identified the Appellant as one of the miscreants. According to the evidence, given by the PW.2, he identified the Appellant on the basis of his voice, which he could recognize. The learned Counsel, appearing for the Appellant, contends that the recognition on the basis of voice is not acceptable and that it is not safe to rely on such evidence to hold a person guilty. 19. In the case of Kutu Mia (supra), a learned Single Judge of this Court observed that recognition of voice is a weak piece of evidence. 20. In the case of Mazid Ali alias Abdul (supra), a learned Single Judge of this Court observed that recognition from voice is a very feeble type of evidence and it is very much misleading. The learned Single Judge further observed that two persons may have similar voice and that there are instances, not few, where persons imitate others' voice. In the above referred case, the accused Appellant entered the informant's house by cutting wall of the house and committed rape on the victim putting her under threat. The prosecutrix stated that she could recognise the accused from the voice as well as stature. In the above referred case, the accused Appellant entered the informant's house by cutting wall of the house and committed rape on the victim putting her under threat. The prosecutrix stated that she could recognise the accused from the voice as well as stature. There is nothing to show that the accused person was known to the prosecutrix. The facts and circumstances of this case is not similar to our present case. In the case in hand, the PW.2 clearly stated that the identified accused persons were well-known to him having talking terms since long. 21. In the case of Palanisamy @ Selvan (supra), the witnesses claimed to have identified the accused persons from their voice. The Supreme Court observed: Though such identification in some cases is possible, in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was lost sight of by the trial court. The High Court found the possibility of identification as claimed by P Ws 1 and 2 an impossibility. The Supreme Court dismissed the appeal, preferred by the State. 22. In the case of Kripal Singh (supra), the Supreme Court observed that, in the cases where the accused is intimately known to the witness for long time, the identification on the basis of the voice is probable. 23. Referring to the case of Kripal Singh (supra), a learned Single Judge of this Court, in the case of Prahllad Marak (supra), observed that though identification by voice is undoubtedly a weak piece of evidence, but if the same comes from persons, who are closely known to the assailants for a long time, it gains much evidentiary value and may be a foundation for conviction. The learned Single Judge referred to the following observations made by the Supreme Court in the case of Kripal Singh (supra): 4. It is true that the evidence about identification of a person by the timbre of his voice depending upon sable variations in the overtones when the persons recognizing is not familiar with the persons recognized may be somewhat risky in a criminal trial. It is true that the evidence about identification of a person by the timbre of his voice depending upon sable variations in the overtones when the persons recognizing is not familiar with the persons recognized may be somewhat risky in a criminal trial. But where the accused is intimately known to the witness and for more than a fortnight before the date of the offence he had met the accused on several occasions in connection with the dispute, it cannot be said that identification of the assailant by the witness from what he heard and observed was so improbable that the Supreme Court would be justified in disagreeing with the opinion of the court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the Appellant and accepted the testimony. 24. In view of the above principles, laid down by the Supreme Court, there is no difficulty in understanding that identification on the basis of voice and gait of the accused person is possible and such claim of identification can be accepted, if it is shown that the accused person was well acquainted with the witness since long and that the witness had the occasion to have conversation for a reasonable period with the accused person. 25. In our present case, PW.2 has clearly stated that the Appellant and Sri Lataham Reang were his co-villagers and he used to talk with them in connection with cultivation of orange as well as some other family matters. He clearly stated that on previous occasion he had conversation with those two persons and that he was well acquainted with them. In view of this evidence, the evidence of PW.2 regarding identification appears to be reasonable and acceptable. 26. In view of the above discussed evidences, it transpires that none except PW.2, who lodged the FIR i.e. Ext.1, could recognise the Appellant. A close scrutiny of the evidence of PW.2 and Ext.1 i.e. the FIR, reveals major discrepancy about the identification of the Appellant. As per the FIR, which was lodged 13 days after the occurrence, the informant could recognise the miscreants in the light of the lantern. The FIR is silent regarding covering of faces by the miscreants and the identification on the basis of their voice. As per the FIR, which was lodged 13 days after the occurrence, the informant could recognise the miscreants in the light of the lantern. The FIR is silent regarding covering of faces by the miscreants and the identification on the basis of their voice. Therefore, according to the FIR, the miscreants were identified in the light of the lantern. This indicates that the miscreants did not cover their faces, whereas the informant in his evidence, given as PW.2, clearly stated that the miscreants had covered their faces with clothes and he could identify/recognise them on the basis of the voice of the Appellant and Sri Lataham Reang. Further, PW.2, in his evidence, stated that the accused persons were known to him since earlier and that he had talking terms with them. 27. Now, the question is whether the accused persons were identified on the basis of their voice or in the light of the lantern as indicated in the FIR. If PW.2 could identify the accused persons on the basis of their voice i.e. without seeing their faces, he should have disclosed such fact at the earliest time of disclosure i.e. in the FIR itself. There was no reason for withholding such fact. But, as discussed above, in the FIR (Ext.1) aforesaid, the informant clearly stated that he could identify the Appellant with the help of the light of the lantern. In the FIR, he did not make any whisper regarding identification on the basis of voice. In my considered opinion this is a major contradiction on very vital point. In view of the above contradictory statements, given by PW.2, it is very much doubtful as to whether he could really identify/recognise the Appellant. Therefore, it is not believable or safe to rely on his oral evidence to conclude that he could identify the Appellant. Except the evidence of PW.2, there is no other evidence regarding identify of the Appellant. There is no dispute that, in a criminal proceeding, the prosecution is required to prove the charge, brought against an accused person, beyond all reasonable doubt. It is also settled law that in the event of existence of two probabilities, the benefit of doubt should always be given to the accused person. 28. There is no dispute that, in a criminal proceeding, the prosecution is required to prove the charge, brought against an accused person, beyond all reasonable doubt. It is also settled law that in the event of existence of two probabilities, the benefit of doubt should always be given to the accused person. 28. In the light of the above discussion, considering the entire aspect of the matter, I am of the opinion that the prosecution failed to prove, beyond all reasonable doubt, that the Appellant was identified by the PW.2 at the time of occurrence. 29. It is admitted position of law that information regarding commission of an offence is required to be brought to the notice of the authority concerned, without inordinate delay and the delay in lodging the FIR, if not properly explained, would be fatal for the prosecution. In the present case, the occurrence took place on 06.12.2003 and the FIR was lodged on 19.12.2003. In the FIR, it has been stated that as the miscreants belonged to the extremists group, out of fear, the FIR was not lodged immediately after the incident. PW.2 i.e. the informant, in his evidence also, stated that due to fear he did not lodge the FIR immediately after the occurrence. 30. PW.2, nowhere, in his evidence stated that the said miscreants, including the Appellant, had, in any manner, threatened him thereby restraining him from lodging the FIR or informing the police. In the FIR also, no such statement was made indicating that any threat was given by the miscreants. Record does not reveal that the informant was threatened by the miscreants aforesaid. Mere bald statement that due to fear FIR was not lodged, that too for a long period of 13 days, can't be accepted as reasonable explanation. Therefore, the above inordinate delay in lodging the FIR, also raises serious doubt about the veracity of the prosecution version, regarding involvement of the Appellant. 31. In view of the above discussion, I have no hesitation in holding that the prosecution failed to prove the allegations, brought against the Appellant, beyond all reasonable doubt. Therefore, in my considered opinion, the Appellant is entitled to be acquitted on benefit of doubt. Accordingly, I find sufficient merit in this appeal. 32. Learned Counsel, appearing for the Appellant, has submitted that, presently, the Appellant is undergoing imprisonment in the Kailashahar District Jail, North Tripura. 33. Therefore, in my considered opinion, the Appellant is entitled to be acquitted on benefit of doubt. Accordingly, I find sufficient merit in this appeal. 32. Learned Counsel, appearing for the Appellant, has submitted that, presently, the Appellant is undergoing imprisonment in the Kailashahar District Jail, North Tripura. 33. The appeal is allowed and the impugned conviction and sentences, recorded against the present Appellant, are set aside. The Appellant Sri Rajendra Reang be set at liberty forthwith, if not wanted in any other case. Return the Lower Court Records.