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2011 DIGILAW 664 (GAU)

Puspa Jamatia v. State of Tripura

2011-08-08

C.R.SARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. This appeal is directed against the judgment and order, dated 08.01.2003 and order of sentence, dated 09.01.2003, passed by the learned Sessions Judge, South Tripura, Udaipur, in Sessions Trial Case No. 29(ST/U)2002, whereby and whereunder, the learned Sessions Judge convicted the Appellant under Sections 364, 302 and 201 of the Indian Penal Code (for short 'Indian Penal Code, 1860') and sentenced him to undergo rigorous imprisonment for ten years and pay fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for six months for the offence committed under Section 364 Indian Penal Code, 1860. The learned Sessions Judge also sentenced the Appellant to undergo rigorous imprisonment for seven years and pay fine of Rs. 2,000/-, in default to undergo further imprisonment for three months for the offence committed by him under Section 201 Indian Penal Code, 1860 and finally sentenced the Appellant to life imprisonment and pay fine of Rs. 5,000/-, in default suffer further imprisonment for six months, for commission of offence under Section 302 Indian Penal Code, 1860. It has been directed that, all the sentences shall run concurrently. 2. Heard Mr. S. Datta, learned Counsel, appearing for the Appellant. We have also heard Mr. D. Sarkar, learned Public Prosecutor, assisted by Mr. A. Ghosh, learned Addl. Public Prosecutor and Mr. R.C. Debnath, learned Special Public Prosecutor, appearing for the State-Respondent. 3. The prosecution case, in brief, is that, when the accused Appellant Sri Puspa Jamatia was in custody in connection with R.K. Pur P.S. Case No. 163/1999, he was thoroughly interrogated by the police in connection with different extremists related incident and during such interrogation, it has been revealed that the accused-Appellant, along with three other persons, namely (1) Sri Mani Chand Jamatia, (2) Sri Lalu Karta Jamatia and (3) Sri Sadhan Jamatia, kidnapped two persons namely (1) Anwara Bibi and (2) Bhupal Das @ Bhulu, on 23.08.1999, at about 10 am, at Sungrungbari area i.e. the village of accused-Appellant, where the kidnapped persons went to purchase goat. It is the further case of the prosecution that, the aforesaid accused persons also kidnapped another person, namely Dilip Paul of Chaygharia, on 22.08.1999 at about 9.30 am when he was returning his house. It is the further case of the prosecution that, the aforesaid accused persons also kidnapped another person, namely Dilip Paul of Chaygharia, on 22.08.1999 at about 9.30 am when he was returning his house. At the time of his interrogation, the accused-Appellant also confessed that they killed the aforesaid three kidnapped persons and buried them in Sungrungbari jungle and he would be able to show the place where the said dead bodies were buried. Accordingly, PW.11 Sri Nirmal Ch. Dey, the Officer In-charge of Maharani Out Post, arranged recover of the dead bodies of the kidnapped persons after observing the legal formalities to disinter the dead bodies of aforesaid kidnapped persons from the Sungrungbari jungle. The accused-Appellant Puspa Jamatia led the police team to the place where the dead bodies were buried and had also shown those places. Thereafter, PW.11 Sri N.C. Dey, the Officer In-charge of Maharani Out Post, suo moto lodged the complaint with the O/C R.K. Pur police station for registering a specific case against the present Appellant and three others under Sections364A/384/302/201 Indian Penal Code, 1860. On the basis of the said suo moto complaint lodged by the PW.11, a police case was registered as R.K. Pur P.S. Case No. 35/2002, under Sections364A/384/302/201 Indian Penal Code, 1860 against the accused-Appellant and three others and as endorsed by the Officer In-charge of R.K. Pur P.S, the Sub-Inspector, Sri N.C. Dey, who lodged the suo moto complaint, on the basis of which the police case was registered, has taken over the investigation. After taking over the investigation of the case in hand, PW.11, visited the place of occurrence, prepared hand-sketch map, record the 161 statement of the witnesses, seized the wearing apparels of the deceased victims and sent the broken parts of skeletons/bones to the PW.8, Dr. Kanulal Bhowmik for post mortem examination and ultimately the PW.12, Sri Nityananda Sarkar, the Second I.O., filed the charge sheet under Sections 364A/384/302 and 201 Indian Penal Code, 1860 against the accused-Appellant, Sri Puspa Jamatia and two other persons, namely, Sri Shakti Sadhan Jamatia @ Jolu @ Santihari and Sri Mani Chand Jamatia. 4. Kanulal Bhowmik for post mortem examination and ultimately the PW.12, Sri Nityananda Sarkar, the Second I.O., filed the charge sheet under Sections 364A/384/302 and 201 Indian Penal Code, 1860 against the accused-Appellant, Sri Puspa Jamatia and two other persons, namely, Sri Shakti Sadhan Jamatia @ Jolu @ Santihari and Sri Mani Chand Jamatia. 4. As the offence involved in the case was exclusively triable by the Court of Sessions, the case was committed for trial to the court of the learned Sessions Judge, South Tripura, Udaipur, and the learned Sessions Judge framed charges against the three accused persons under Sections 364A/384/30 Indian Penal Code, 1860 read with Section 34 Indian Penal Code, 1860 and more so Section 201 Indian Penal Code, 1860. The accused persons pleaded not guilty and claimed to be tried. 5. In order to prove the case of prosecution, 12 prosecution witnesses were examined including the official witnesses. 6. After examining the witnesses and recording the statement of the accused persons under Section 313 Code of Criminal Procedure, the learned trial court convicted and sentenced the accused-Appellant under the penal offences as stated supra and acquitted the other two accused persons. Being aggrieved by the aforesaid judgment and order of conviction and order of sentences, the accused-Appellant preferred the present appeal. 7. Mr. Datta, learned Counsel, appearing for the Appellant, at the very outset of his argument, submits that the entire prosecution case is a tainted one and the impugned judgment and order, dated 08.01.2003 and consequent thereto the order of sentence, dated 09.01.2003, is liable to be quashed on the ground that the person who lodged the suo moto complaint, himself investigated the matter including the arrest of the accused Appellant in the subsequent R.K. Pur P.S. Case No. 35/2002, which is contrary to the provisions of law. The learned Counsel also referred the FIR i.e. the suo moto complaint, dated 02.03.2001 (Ext.11) and the statement of PW.11, Sri N.C. Dey. There is No. dispute that the PW.11 is the informant, who lodged the written complaint and investigated the case though charge sheet was filed by PW.12, Sri Nityananda Sarkar, another Sub-Inspector. The learned Counsel also referred the FIR i.e. the suo moto complaint, dated 02.03.2001 (Ext.11) and the statement of PW.11, Sri N.C. Dey. There is No. dispute that the PW.11 is the informant, who lodged the written complaint and investigated the case though charge sheet was filed by PW.12, Sri Nityananda Sarkar, another Sub-Inspector. In support of his aforesaid contention, the learned Counsel has placed reliance on a decision of the Apex Court in Megha Singh v. State of Haryana AIR 1995 SC 2339 , wherein the Apex Court discarded such type of investigation and noted, inter alia, that "We have also noted another disturbing feature in this case. PW.3, Sri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Code of Criminal Procedure Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." 8. In the instant case, while relying on the aforesaid judgment of the Apex Court, Mr. Datta, further contended that, not only the question of fair and impartial investigation, even so called 'leading to the discovery' is also a tainted one, being the 'leading to discovery' was done on the basis of alleged disclosure to the PW.11, who lodged the suo moto complaint and proceeded for the investigation and ultimately submitted charge sheet. In support of his aforesaid contention, regarding the impartial and tainted investigation, Mr. Datta, learned Counsel appearing for the Appellant, has also placed reliance upon a decision rendered by a Division Bench of the Karnataka High Court in State of Karnataka v. Sheshadri Shetty and Ors. In support of his aforesaid contention, regarding the impartial and tainted investigation, Mr. Datta, learned Counsel appearing for the Appellant, has also placed reliance upon a decision rendered by a Division Bench of the Karnataka High Court in State of Karnataka v. Sheshadri Shetty and Ors. 2005 CRI.L.J. 377, wherein the Division Bench of the Karnataka High Court, relying on the decision of Megha Singh (supra), noted that, "The rule of fairness which is the bed-rock of criminal investigations pre-supposes impartiality and starting from this premise what emerges is that where the Investigating Officer is the complainant, he is offending the principle of impartiality as far as the quality of the investigation is concerned. Though the Govt. Pleader has tried to salvage the position by contending that the Court should totally disregard the evidence of the I.O. PW.8 and examine the question as to whether the prosecution case is established on the basis of the remaining evidence, we need to point out that this procedure would not pass the legal test of fairness. The reason for this is because in his capacity as the Investigating Officer, PW.8 has not only given evidence at the trial but PW.8 is really the main architect of the prosecution case. Everything that PW.8 has done right from the recording of evidence to the drawing up of panchanamas and the like would be hit by the lurking suspicion that if he is the complainant in the case he may not be acting impartially. It is precisely this underlying principle which effects the quality of the whole of the prosecution case because PW.8 as the Investigating Officer is the architect of that edifice. Therefore, though initially it did appear to us that the submission canvassed by Smti Nesargi was not on the strong side, on a total review of the legal position we find that the learned Counsel was right in advancing the submission because of the principle laid down in Megha Singh's Case" 9. Learned Counsel, appearing for the Appellant, relying on the decision of Megha Singh (supra), wherein the Apex Court stated that virtually the investigation conducted by the complainant/informant is nothing but tainted, submits that, if this is the position, it is virtually the end of the prosecution case. Learned Counsel, appearing for the Appellant, relying on the decision of Megha Singh (supra), wherein the Apex Court stated that virtually the investigation conducted by the complainant/informant is nothing but tainted, submits that, if this is the position, it is virtually the end of the prosecution case. The learned Counsel further contended that the evidence of PW.7, Sri Laxminarayan Jamatia and PW.9, Sri Jalil Miah can't be relied upon by a court of law on the ground that the statement of PW.7, under Section 161 Code of Criminal Procedure was recorded on 13.03.2002 i.e. after three years of the incident i.e. after three days of recovery of the limbs and skull of the deceased persons and more so, he also did not disclose to any of the villagers including the prosecution witnesses that amongst the miscreants, he identified the accused Appellant when the deceased Anwara Bibi was forcibly taken to the southern side by the Appellant herein and the said statement was also not disclosed to the complainant i.e. the I.O. at the time of recording his statement under Section 161 Code of Criminal Procedure The same is disclosed for the first time in the trial court, hence this is the approved version and on the basis of approved version of evidence one cannot be convicted. 10. Referring the seizure list, prepared on 04.03.2001 (Ext.5/1), the learned Counsel, appearing for the Appellant, would contend that the I.O. of the case seized the green coloured petty-coat and some hairs of the deceased Anwara Bibi and green coloured cheque full sleeved shirt and some portion of blue coloured half pant of Bhupal Das at Maharani Out Post, not at the place from where skeletons/bones of those deceased persons were disinterred and even on the date of seizure also the PW.7 was not examined by the I.O. of the case. His further contention is that, from the evidence of PW.11 i.e. the I.O. of the case, the statement of PW.7 under Section 161Code of Criminal Procedure was recorded on 03.04.2011 i.e. after almost a month from the date of alleged seizure, which also creates doubt regarding the investigation made by the so called Investigating Officer. 11. The learned Counsel, appearing for the Appellant, referring to the evidence of PW.8, Dr. 11. The learned Counsel, appearing for the Appellant, referring to the evidence of PW.8, Dr. Kanulal Bhowmik, who had done the post mortem examination, would contend that one Sri Ramendra Mandal, a Constable, identified one incomplete skeleton with three bones, as the skeleton of deceased Dilip Pal, Bhupal Das and Anwara Bibi, but, the said Constable was also not examined by the prosecution, which even creates doubt about the identification of the skeleton. He further contended that though PW.8 in his statement before the court, stated that the whole skeletons/bones of the deceased persons were placed before him for post mortem examination, but he received only part of bones and those bones were also not sent for serological test to ascertain as to whether those bones are human bones or animal bones or not. Placing the evidence of PW.9, Sri Jalil Miah, an alleged eye witness, the learned Counsel would further contend that the evidence of PW.9 does not corroborate the evidence of PW.10 Sri Ful Mia @ Ful Islam i.e. the son of the deceased Anwara Bibi. More so, the Investigating Officer did not make any seizure either of the skeleton or of the bones of the dead body of the deceased at Sungrungbari jungle. PW.9, in his chief, though stated that, he saw Anwara Bibi was coming towards their house, suddenly 3/4 persons forcibly dragged her and took her towards the southern side. He could not identify them except the present Appellant, but he did not disclose the said fact either to PW.10, Sri Ful Mia or to the I.O. of the case though he met both the persons and he further contended that PW.9, in his cross, specifically stated that his statement was recorded just after 2/3 days of kidnapping of Anwara Bibi. His statement was recorded by the Darogababu, but the said statement has not been supplied to the prosecution and even the same was also not placed before the trial court by the I.O. of the case and according to him, the said statement is to be treated as a FIR so far the kidnapping and death of deceased Anwara Bibi and Bhupal Das are concerned as that was the first cognizable information to the police, but non-production of the said document also created doubt about the prosecution case. 12. 12. The learned Counsel, appearing for the Appellant, submits that, according to the I.O. of the case, the statement of PW.9 was recorded on 05.03.2011 i.e. almost after about 21/2 years from the alleged date of abduction. Therefore, the evidence on the basis of those delayed recorded statement can't be the basis for conviction. In support of the aforesaid contention, the learned Counsel has placed reliance on the decision of the Apex Court in Ganesh Bhavan Patel and Anr. v. State of Maharashtra AIR 1979 SC 135 , wherein the Apex Court considered the effect of delayed recording of 161 statement of a witness and noted that, "the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. In the instant case, the prosecution, at No. point of time disclosed the reason for delayed recording of statement of the witnesses. On the same point, the learned Counsel, also placed reliance upon a decision of this Court in Swapan Ch. Dey v. State of Tripura 2010 CRI.L.J. 2282, wherein both of us were a party. In the aforesaid case, this Court disbelieved the statement of the prosecution witnesses in view of the judgment of the Apex Court in (1) Radha Kumar v. State of Bihar ( (2005) 10 SCC 216 ), (2) Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and Ors. ( (2004) 10 SCC 583 ) and (3) State of Orissa v. Mr. Bhahmananda Nanda ( AIR 1976 SC 2488 ), and held that, on the basis of the evidence of those witnesses, the accused can't be convicted and ultimately we have acquitted the Appellant Sri Swapan Ch. Dey in the said appeal. ( (2004) 10 SCC 583 ) and (3) State of Orissa v. Mr. Bhahmananda Nanda ( AIR 1976 SC 2488 ), and held that, on the basis of the evidence of those witnesses, the accused can't be convicted and ultimately we have acquitted the Appellant Sri Swapan Ch. Dey in the said appeal. The learned Counsel, appearing for the Appellant, finally contended that, it would not be necessary for this Court to consider any other circumstances when there is No. eye witness of the murder or burial of the deceased persons and more so when the skeletons/bones were not sent for serological test and non-examination of the skeletons/bones of the deceased persons by the serological test, creates a serious doubt about the prosecution case and when there is a minimum doubt in the mind of the court regarding the identification of the skeletons/bones of the deceased persons, it would be proper for the Court to set aside the order of conviction and sentence and release the accused-Appellant, providing him the benefit of doubt. 13. Mr. D. Sarkar, learned Public Prosecutor, in his usual fairness, submits that, it is the admitted position that PW.11, being the complainant, proceeded for investigation of the criminal case and recorded the statement of the witnesses under Section 161 Code of Criminal Procedure on the basis of so called 'leading to discovery' at the instance of the accused-Appellant. He also submits that, in view of the decision of the Apex Court in Megha Singh (supra) and our own High Court decision in the case of Dipak Nath and Anr. v. The State of Tripura (Crl. A. No. 23/2004), wherein a coordinate Bench of this Court, relying the case of Megha Singh (supra), also held that the entire investigation is a tainted one. As in this case, admittedly, there is No. eye witness of the alleged murder and when the prosecution, mainly relied upon the evidence of PWs. 7 and 9, it would be proper now, on our part to reproduce the salient parts of the evidence of those witnesses. Accordingly, the salient parts of the evidence of PWs. 7 and 9 are reproduced hereunder: PW.7. Sri Laxminarayan Jamatia. ... I also saw from my house that Anwara was forcibly taken towards Southern side. and among the miscreants I identified accd. Pushpa Jamatia and accd. Pushpa Jamatia is present today and identified in the dock. Accordingly, the salient parts of the evidence of PWs. 7 and 9 are reproduced hereunder: PW.7. Sri Laxminarayan Jamatia. ... I also saw from my house that Anwara was forcibly taken towards Southern side. and among the miscreants I identified accd. Pushpa Jamatia and accd. Pushpa Jamatia is present today and identified in the dock. and after about 21/2 from that day I heard that some human limbs, skull were recovered by police from Sunglungbari but I was not present at that time while limbs and skulls were recovered. PW.9. Sri Jalil Miah. ... myself and Anwara Bibi proceeded to our house and on way Anwara Bibi purchased a she goat from Tribal and from there we proceeded to our respective houses. On way near Sanjibani tilla near chara we met accd. Pushpa Jamatia. Thereafter we all proceeded towards Northern side and in Sanjibani Tilla accd. Pushpa Jamatia snatch the she goat which was given me by Anwara Bibi who then went to nearby house for purchasing she goat. By that time I saw Anwara Bibi was coming towards me and suddenly 3/4 persons forcibly dragged her and took her towards southern side. But I could not identified them and amongst the miscreants I only identified Pushpa Jamatia who is present today and identified in the dock. Accd. Puspa Jamatia is known to me previously as he used to visit in our locality and Maharani PHC. Thereafter I returned to Maharani Choumuhani. 14. In State of Karnataka v. M.V. Mahesh reported in (2003) 3 SCC 353 , wherein the Apex Court observed that, in a case where the deceased was last seen in the company of the Respondent-accused and ultimately her skeleton was recovered and upon DNA examination of the bones found by the police, identified to be of Beena and ultimately filed charge sheet and upon trial, the trial court convicted the Respondent-accused and the High Court of Karnataka acquitted the Respondent and the State of Karnataka preferred appeal and while deciding the appeal, the Apex Court noted inter alia, "whether the statement made by him orally led to the discovery itself is in doubt inasmuch as the police had already information through another witness and that circumstance was strongly relied upon by the High Court. The High Court held that the statement made by the Respondent, if at all, will not lead to any discovery inasmuch as the information was already in possession of the police and that reasoning cannot be faulted with". 15. In the instant case also, it appears that the accused-Appellant, allegedly disclosed the crime committed by him to the police while he was in custody in connection with another case and not only that, admittedly, neither the skeletons/bones of the alleged recovery was sent for serological examination nor was there any DNA examination of the bones and in absence of any serological examination, it is not possible to fortify as to whether the skeletons/bones recovered are the skeletons of the deceased victims, Anwara Bibi, Bhupal Das @ Bhulu and Dilip Paul or others. It is also the admitted position that the I.O. of the case did not even seized the skeletons/bones of the deceased for sending the same for serological examination. 16. We have also gone through the decision of Megha Singh (supra), as relied upon as well as the decision of a coordinate Bench in Dipak Nath (supra) and the decision of Sheshadri Shetty (supra), recorded by Mr. Datta, learned Counsel, appearing for the Appellant. We are of the view that the person, who lodged the complaint has No. right to investigate a case, at best he can be a witness. But, in the instant case, it is the admitted position that PW.11, who lodged the suo moto complaint with the Officer In charge of R.K. Pur police station, investigated the case without sanction of law. We are of the further opinion that, every informant has some interest on a case lodged by him and in the instant case, as PW.11 had lodged the case of a cognizable offence for prosecuting the present Appellant, he has an interest. Therefore, the investigation done by him is totally perverse and tainted and on the basis of such a tainted investigation, a person can't be convicted. Therefore, the investigation done by him is totally perverse and tainted and on the basis of such a tainted investigation, a person can't be convicted. We have already stated that the skeletons/bones of the deceased victims were also not properly identified as the same was not sent for serological test, as required under the law and in absence of such serological test/DNA test, it would be said that the skeletons/bones, which were allegedly recovered, are the bones of human or not, far too the skeletons/bones of Anwara Bibi, Bhupal Das @ Bhulu and Dilip Paul. 17. In the case of Udaimanik Jamatia v. State of Tripura (Criminal Appeal No. 09 of 2007), in which both of us were party, this Court noted that, in a criminal case, presumption and assumption in this case is based on circumstantial evidence and in a case of circumstantial evidence also the chain of the links should be completed, if the chain is broken at any point of time, then the prosecution case can't be believed and ultimately we acquitted the said Appellant Sri Udaimanik Jamatia in the said appeal. 18. In view of above, we are of the opinion that the Appellant is to be released providing him the benefit of doubt, as he is entitled to. Accordingly, the judgment and order, dated 08.01.2003 and order of sentence, dated 09.01.2003, passed by the learned Sessions Judge, South Tripura, Udaipur, in Sessions Trial Case No. 29(ST/U)2002, is set aside. 19. In the result, the appeal is allowed. The Appellant shall be released forthwith, if he is not connected with any other offence for which his detention is called for. Return the Lower Court Records. Appeal allowed.