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2011 DIGILAW 685 (GAU)

Monoranjan Sarkar v. State of Tripura

2011-08-11

C.R.SARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The present appeal is directed against the judgment and order, dated 21.12.2006, passed by the learned Addl. Sessions Judge, Sonamura, West Tripura, in ST 05 (WT/S)/2006, whereby and whereunder, the appellant was convicted under Section 302 IPC and sentenced to suffer R.I for life and pay a fine of Rs.2000/- i.d. suffer further R.I. for 2 months. 2. Heard Mr. P.K. Biswas, learned Counsel for the appellant as well as Mr. R.C. Debnath, learned P.P In-charge of the case. 3. The prosecut in case, in brief, is that on 12.5.2004, at about 22.15 hours, ASI Matilal Datta (P. W/15) of Kalamchoura police station received a telephonic information, from one Bijoy/Bhusan Sarkar (PW 6), that a person was murdered in South Kalamchoura area. On receipt of the aforesaid information, ASI Matilal Datta recorded the same in the General Diary vide No. 380 dated 12.5.2004. Subsequently, S.I. Nepal Ch. Deb, (PW 17) reached the spot and after arriving there, he found the dead body, which was known to be of one Kartik Das. 4. The offence being cognizable, he started the investigation. In the process, he also received a written complaint regarding the murder of said Kartik Das from one Ashis Das (P.W 8) which he forwarded to the police station and Kalamchoura P.S. case No. 10 of 2004 was registered under Section 302 read with Section 34 IPC. 5. On completion of the investigation, a prima face case having been revealed, charge sheet was filed against the accused appellant under Section 302 IPC with a prayer to discharge the other accused, namely, Sanjit Saha and Smt. Gita Saha, who were arrested in connection with the aforesaid police case. 6. Thereafter, the case was reinvestigated by the Inspector, Hari Mohan Das, (PW18) as ordered by the Sub-Divisional Police Officer (SDPO), Sonamura and on completion of the reinvestigation, having found a prima facie case against all the three accused, he prosecuted all of them under Section 302 IPC read with 149 IPC. 7. The offence being exclusively triable by the Court of Sessions, the case was then committed to the Court of Additional Sessions Judge, Sonamura. 8. The learned Additional Sessions Judge upon hearing the learned Counsel for the parties framed the charge against the accused appellant and two others under Section 302. 7. The offence being exclusively triable by the Court of Sessions, the case was then committed to the Court of Additional Sessions Judge, Sonamura. 8. The learned Additional Sessions Judge upon hearing the learned Counsel for the parties framed the charge against the accused appellant and two others under Section 302. IPC read with Section34 IPC which are reproduced hereunder: That you all on 12.5.2004, at about 2030 hrs at South Kalamchoura under Kalam-choura P.S. in the furtherance of common intention did commit murder by intentionally causing the death of Kartik Das and that you thereby committed an offence punishable u/s 302 of the I.P.C read with Sec.34 of the IPC and within my cognizance. 9. To prove the charge, the prosecution examined as many as 18 (eighteen) witnesses including the official witnesses and also exhibited some documents and defence examined none. 10. On conclusion of the trial, the learned Addl. Sessions Judge, upon consideration of the evidences of the prosecution witnesses, particularly, the evidences of P.W 1, 2, 9 and 10 and the statement of the accused, recorded under Section 313 Cr. P.C., inter alia, wherein he admitted that he called the deceased Kartik just before his death, convicted and sentenced the accused appellant and acquitted the other two accused persons from the charge, levelled against them, as the prosecution failed to prove its case against those accused persons. Being aggrieved, the present accused appellant has preferred the instant appeal against the impugned judgment as stated supra. 11. The whole prosecution case is based on circumstantial evidence as there was no direct evidence as to who killed the deceased Kartik. 12. Mr. Biswas, learned Counsel for the appellant, while urging for setting aside the order of conviction and sentence would contend that the prosecution failed to prove any motive of the accused appellant as to why he killed Kartik. The learned Counsel further urges that initially the prosecution tried to establish that it is the wife and brother in law of the deceased Kartik who made conspiracy and killed the deceased Kartik, but ultimately the investigating authority while filing the charge sheet submitted final report so far as those two accused persons are concerned namely, Sanjit Saha and Smt. Gita Saha for discharging them. But after reinvestigation, the charge sheet was filed against the accused appellant and also against the aforesaid two accused persons and in that way, the prosecution tried to establish a case against accused appellant. 13. Mr. Biswas also submitted that from the evidence of P.W 1, 2, 9 and 10 it appears that the dead body of the deceased Kartik was found in the courtyard of P.W 10, but from the evidence of P.W 14, particularly, in the post mortem report, Exbt. 4, it has been recorded that the dead body was recovered from the nearby house of Pradip Sarkar (P.W 10). Therefore, regarding recovery of the dead body also, there is a doubt and the said benefit of doubt should be given to the present accused appellant. His final contention is that in a case of substantial evidence, the prosecution is bound to prove the motive of the accused as it would be evident from the decision of the Apex Court in State through CBI Vs. Mahender Singh Dahiya AIR 2011 SCW 1916 wherein the Apex Court upon consideration of the evidence in that case noted that High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjectures do not take the place of proof. 14. Except the aforesaid contention, Mr. Biswas did not take us to visit any of the evidence of the prosecution witnesses. His further submission before this Court, inter alia, I.O. even did not seize the blood stained earth from the place of occurrence as the place of occurrence is also doubtful one. According to him, the recovery of the dead body from a place does not indicate that the same is the place of occurrence. 15. To refute the contention of Mr. Biswas and supporting the impugned judgment, Mr. Debnath, learned Addl. P.P takes us to the evidence of the prosecution witnesses, particularly, the evidence of P.W.1, 2, 9 and 10. 16. According to him, the recovery of the dead body from a place does not indicate that the same is the place of occurrence. 15. To refute the contention of Mr. Biswas and supporting the impugned judgment, Mr. Debnath, learned Addl. P.P takes us to the evidence of the prosecution witnesses, particularly, the evidence of P.W.1, 2, 9 and 10. 16. The relevant portion of the evidence of those witnesses is discussed hereunder: P.W.1, Sonadhan Sarkar, who in his evidence stated that around 9 p.m., on a day about two years back, there was 'kirtan' in the north viai hut of their house and in that 'Kirtan' along with him, there were his elder brother Pradip Sarkar (P.W10), one Subal Acherjee,(PW5), one Priyadhan Sarkar, and Santi Nama (P.W 2) and Kartik Das (since deceased) came a little later. After some time, the accused Monoranjan came there and called Kartik. Then Kartik went with him, but after 5/6 minutes, Kartik returned running to their house and sat on a table in their north vity hut. Kartik had bleeding injury on his cheek and neck. He was unable to talk and seeing that condition, they took Kartik in the courtyard and treated him with water etc., but within a short time, Kartik died. The accused Monoranjan did not return to Kartik and he was also not found in the village after the death of Kartik. 17. P.W2, Santi Nama made a statement in the dotted line of P.W 1. Thus it is not necessary to reproduce his evidence on record. 18. P.W. 9, Subal Acherjee, was also in 'Kirtan' at the relevant time who in his evidence stated that he knew Kartik and on the date of incident, at about 8/8.30 p.m. he along with P.W 1, P.W 10 and Priya Dhan Sarkar and others were performing 'Kirtan' in the house of P.W. 9 and around 9 p.m. Kartik and Santi Nama(P.W.2) came there and joined them in 'Kirtan'. After 10/15 minutes, the accused Monoranjan came and called Kartik for some talks with him. At first Kartik did not like to go, but after being insisted upon, he went with the accused Monoranjan and after few minutes, Kartik came back running to the house of P.W 10 holding his chest just below the neck and blood was seen coming out. Kartik was unable to talk and within a short time, he died. At first Kartik did not like to go, but after being insisted upon, he went with the accused Monoranjan and after few minutes, Kartik came back running to the house of P.W 10 holding his chest just below the neck and blood was seen coming out. Kartik was unable to talk and within a short time, he died. Thereafter, Police came and when daroga babu examined the dead body, they found injuries on the cheek, neck and belly of Kartik. He suspected that Kartik was assaulted by the accused Monoranjan and others. After that incident, the accused Monoranjan was not found in the village. 19. In his cross, even there was no suggestion that the accused Monoranjan did not visit the place of 'Kirtan' and called the deceased Kartik from the place of 'kirtan', rather a suggestion was given to this witness that he was busy in 'kirtan' for which he could not see who called Kartik. 20. P.W 10, Pradip Sarkar, is the brother of the deceased Kartik who while corroborating the evidence of PWs 1, 2 and 9 unequivocally stated that at first Kartik did not agree to go, but after being insisted by the accused Moboranjan, he went with him towards the brick soling road by the northern side of their house. After few minutes, Kartik came running to his house with bleeding injuries on his person and he died in the courtyard of his house. This witness also stated that Kartik had injuries on his cheek, neck and other places of his body and after the incident the accused Monoranjan was not found in the village. 21. To this witness also, question was not put regarding the presence of the accused in the 'Kirtan' and regarding the fact of calling Kartik from the 'kirtan'. Only there is a suggestion that this witness falsely stated that he saw the accused Monoranjan while calling Kartik which he denied. 22. Referring to the evidences of the aforesaid witness, Mr. 21. To this witness also, question was not put regarding the presence of the accused in the 'Kirtan' and regarding the fact of calling Kartik from the 'kirtan'. Only there is a suggestion that this witness falsely stated that he saw the accused Monoranjan while calling Kartik which he denied. 22. Referring to the evidences of the aforesaid witness, Mr. Debnath, submits that the gap between the last seen together the accused Monoranjan and Kartik and the return of Kartak with bleeding injuries is very short, even not more than 5/6 minutes and relying upon the statements of the accused recorded under Section 313 Cr.P.C, learned P.P. In-charge tried to convince us that the accused appellant did not dispute that he went to the place of 'kirtan' and called Kartik from there and it is also not the case of defence that just after going with the accused appellant, Kartik did not return with bleeding injury in his neck, cheek and other parts of the body. Therefore, it is the admitted position that there was a minimum gap of time even not 5/6 minutes between the time Kartik went with the accused after calling him by the accused and Kartik returned with grievous bleeding injuries. Thus last seen theory as required to be proved in a circumstantial evidence is established. More so, all the witnesses also stated that the accused appellant left the village just after the incident took place which establishes an unbroken link of chain. Mr. Debnath has also taken us to the evidence of P.W. 14, Dr. Subrata Bhattacharjee and post mortem report, Exbt. 4 and contended that from the post mortem report, it reveals that the cause of death is cardiorespiratory failure due to cerebral anoxia and respiratory failure following the cutting of trachea Admittedly, the PWs 1, 2, 9 and 10 also found cut injury over the trachea of the deceased. He also urges that the doctor in his report specifically stated that the cause of death is homicidal in nature. He also stated that other two accused persons are acquitted by the trial Court and the State did not prefer any appeal. Therefore, it would not be proper on his part to make any submission as to why they were acquitted. 23. He also stated that other two accused persons are acquitted by the trial Court and the State did not prefer any appeal. Therefore, it would not be proper on his part to make any submission as to why they were acquitted. 23. He further contended that last seen together with the fact of absconding from the locality by the accused appellant immediately after the incident and his statement under Section 313 Cr.P.C, inter alia, he called the deceased Kartik and also his absconding due to fear and the post mortem report if taken together, then there would be a presumption that it is none but the accused appellant who killed Kartik. Accordingly, the learned Trial Court rightly convicted and sentenced the accused appellant, he contended. He finally contended that if this Court would set aside the order of conviction and sentence, then that would be an injustice to the deceased Kartik and his family as well as to the society. 24. Mr. Biswas while responding the submission of Mr. Debnath, submits that the statement of the accused in 313 Cr. P.C. cannot be used against him for the purpose of conviction and sentence. He further contended that even if it is admitted that the accused appellant called the deceased Kartik, then also it has to be proved by the prosecution by what type of weapon Kartik was killed and admittedly, in the instant case, the weapon used in the commission of offence could not be recovered and that between the first investigation and reinvestigation, there was a long time gap. 25. Before dealing with the submission of the learned Counsel for the parties, it would be proper to discuss about the injuries sustained by the deceased Kartik and recorded by the P.W14, Dr. Subrata Bhattacharjee in the post mortem report. It appears from the post mortem examination conducted by P.W 14 that the deceased was stout, more than average built and injuries sustained by him are (i) Incised wound measuring 2" x1" x 1/2" over Trachea;p (ii) Small incised wound with lacerated margin around Trachea-3 in numbe; (iii) One small lacerated wound over Rt. Side of chest; (iv) One small wound below Lt. ear. According to doctor, injury in the trachea it-self is sufficient to cause death. 26. Side of chest; (iv) One small wound below Lt. ear. According to doctor, injury in the trachea it-self is sufficient to cause death. 26. The learned trial Court while convicting the accused appellant considered the evidence of P.W 1, 2, 9 and 10 as well as the evidence of P.W. 6, 8, 12 and 13 and ultimately found that the evidence on record does not support the conviction of the accused Sanjit Sana and Smt. Gita Banik and acquitted them. In his judgment, he recorded, inter alia, admittedly the evidence against the accused Monoranjan Sarkar is that he called victim Kartik Das from the kirtan. Accordingly, Kartik Das went with him and he returned within 5/6 minutes and died immediately. Evidence of P.Ws 1, 2, 9 and 10 reveals that when Kartik Das returned, he had an injury on the neck and he was unable to speak. Deposition of all these four witnesses is to the effect that Kartik Das returned within 5 minutes with the injury and he was unable to speak. He died immediately thereafter. 27. The learned trial Court also discussed about the evidence of P.W 4 who stated in his evidence that some time before the incident, the accused appellant asked him about the whereabouts of Kartik. It is further recorded that the accused appellant during his examination under Section 313Cr. P.C. admitted that he had called Kartik from Kirtan. It is also recorded by the learned Trial Court that though admittedly, the place from where Kartik was taken was not ascertained, it is obvious that the spot was not very far from the P.O shown in the map and index. It is thus amply clear that Kartik was called by the accused appellant. Accordingly, Kartik went with him and returned after 5/6 minutes with an injury at his neck and he died almost instantly and being the accused appellant silent as to what happened after he called kartik, the last seen theory will squarely apply in this case. 28. In support of his contention, he has placed reliance on the decision of the Apex Court in State of U.P Vs. 28. In support of his contention, he has placed reliance on the decision of the Apex Court in State of U.P Vs. Satish AIR 2005 SC 1000 wherein the Apex Court while considering the last seen theory noted, inter alia, The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs-3 and 5, in addition to the evidence of PW-2. 29. In the instant case also, it is evident from the evidence of PWs 1, 2 and 9 in addition to the evidence of PW 10 that the accused appellant was the person with whom Kartik was last seen alive before his death. 30. The learned Trial Court also considered the judgment of the Apex Court in Khandu Mukunda Wagh Vs. State of Maharashtra 2005 Cri.L.J. 3513 as well as the decision of this Court in Thingbaijam Vs. State of Manipur 2005 Cri.L.J. 4780 wherein this Court considering the case of Satish (supra) held that where time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime became impossible. 31. As we are of the same view as expressed by a coordinate Bench of this Court, it is not necessary for us to discuss any detail regarding the said decision. 32. Now let us see whether the statement of the accused recorded under Section 313 Cr. P.C can be used against the accused appellant or not. 33. In the State of Maharashtra Through CBI Vs. Sukhdev Singh @ Sukha & Ors. 32. Now let us see whether the statement of the accused recorded under Section 313 Cr. P.C can be used against the accused appellant or not. 33. In the State of Maharashtra Through CBI Vs. Sukhdev Singh @ Sukha & Ors. AIR 1992 SC 2100 , the Apex court while considering the said aspect observed that Section 313 Cr. P.C. though extra ordinary provisions, which authorizes the accused in a criminal trial to get an opportunity to offer his own explanation regarding the accusation and the word' shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his own explanation for such incriminating material appearing against him. Therefore, it is true that the purpose of examination of the accused under Section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under C1. (b) of sub-sec.(1) of S. 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. 34. Ultimately in para-51 of the said report, the Apex Court while considering whether such a state recorded under S. 313 of the Cr. P.C can constitute the sole basis for conviction, held that since no oath is administered to the accused, the statements made by the accused will not be evidence strict sensu. That is why sub-sec. (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub-sec. (4) which reads: (4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. Thus the answer given by the accused in response to his examination under S. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-sec. (4) permits that it may be taken into consideration in the said inquiry or trial. 35. Thus the answer given by the accused in response to his examination under S. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-sec. (4) permits that it may be taken into consideration in the said inquiry or trial. 35. While considering the aforesaid aspect, the Apex Court also took note of its earlier decision in State of Maharashtra Vs. R.B. Chowdhari AIR 1968 SC 110 and the case of Hate Singh Vs. State of Madhya Bharat AIR 1953 SC 468 wherein it was held that an answer given by an accused under S. 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. 36. A coordinate Bench of this Court also in Deepak Panyang Vs. State of Arunachal Pradesh(2011) GLR 160, taking note of a decision of the Apex Court in State of Maharashtra Vs. Sukhdeo Singh AIR 1992 SC 2100 held in para-70 of the report that answer, so given, by the accused in his statement under Section 313 Cr. P.C. can be considered in a trial along with the evidence on record. Thus the said paragraph is reproduced hereunder: 70. What emerges from the above discussion is that when the prosecution's evidence is closed, it is imperative, on the part of the trial Judge, to examine the accused under section 313(1) (b), Cr. P.C. In such examination, the Judge has the duty to put to the accused all such circumstances, which appear from the evidence on record, incriminating against the accused and solicit the response of the accused thereto. This would give an opportunity to the accused to explain incriminating materials, which may have surfaced on the record against him. The answer, so given, by the accused may be taken into consideration along with the evidence on record. 37. Now question remains when a weapon relating to offence is not recovered, in that case, whether an accused can be convicted or not. Recovery of the offence depends upon on the function of the investigating agency. The answer, so given, by the accused may be taken into consideration along with the evidence on record. 37. Now question remains when a weapon relating to offence is not recovered, in that case, whether an accused can be convicted or not. Recovery of the offence depends upon on the function of the investigating agency. It may not be possible in every case to recover the weapon, but when from other circumstances, a Court comes to a conclusion that it is the accused only who committed the offence, not any other person, then non-recovery of weapon used while committing offence would not be a vital one. 38. By this time, it is also settled by the Apex Court that defect in investigation would not wholly brushed aside the case of the prosecution when other evidences are available. It is evident from the record that the blood stained earth was recovered from the place where dead body was found i.e. the courtyard of P.W.10. 39. In the contention of Mr. Biswas that the investigating authority failed to ascertain the place of occurrence and treated the courtyard of P. W10 as a place of occurrence, this Court is of the opinion that mere non-ascertaining of place of occurrence cannot be a ground for acquittal of an accused who was admittedly seen with the deceased just before his death. 40. We find that all the events of circumstances surfacing from the evidence on record form a complete chain, irresistibly pointing the guilt to the accused, negating the hypothesis of innocence of the accused. Therefore, there is no difficulty in concluding that none other than the accused had caused the injuries which resulted the death of the deceased Kartik. The learned Trial Court rightly passed the order of conviction and sentence in the impugned judgment which does not call for interference by us. 41. In the result, the appeal is dismissed. 42. Send down the lower court records.