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2011 DIGILAW 910 (GAU)

State of Tripura v. Samir Chakraborty

2011-11-21

B.D.AGARWAL, SUBHASIS TALAPATRA

body2011
JUDGMENT B D Agarwal, J. 1. The State of Tripura is challenging the acquittal of the accused persons from the offence of murder and conspiracy. The respondents have been acquitted vide common judgment and order dated 19.09.2006, passed by the learned Additional Sessions Judge, North Tripura, Kamalpur in ST 67 (NT/KMP) of 2004 and ST 67 A (NT/KMP) of 2004. 2. Heard Sri D Sarkar, learned Public Prosecutor, assisted by Sri R C Debnath, learned Special Public Prosecutor for the appellant/State of Tripura. Also heard Smt M Chowdhury, learned Amicus Curiae for the respondents/convicts. At this stage, we would like to mention here that after preferring the appeal the State withdrew the appeal against the co-convict, namely, Santosh Namasudra, since he was a juvenile at the relevant time. Accordingly, the name of respondent No. 2 was struck off vide order dated 18.02.2011, passed in Crl. M. appeal No. 50 of 2007. In this way, we are only required to examine the correctness and legality of the acquittal of respondent No. 1, Sri Samir Chakraborty. 3. As could be gathered from the record, the prosecution case is that on 30.12.2002, the deceased was playing marbles in an abandoned house, belonging to the grandfather of the accused Sri Santosh Namasudra. In the meanwhile, the accused Sameer came to the place of occurrence and asked PW-2, who was playing marbles with the deceased, to go to the house of one Mithun Namasudra to fetch more marbles. It is the further case of the prosecution that when PW-2 returned to the place where they were playing marbles he neither found the accused persons nor the deceased. In addition to this story, the informant (PW-1) also deposed in the Court that few days prior to the incident of murder both the accused persons had come to their house and requested to give their television set to watch a film. On being denied one of the sons of the informant was beaten. It was followed by receipt of a demand letter of Rs. 3 lacs in the name of a militant organization. 4. Basically, the prosecution relied upon the theory of "last seen together" as well as recovery of a weapon at the instance of the accused persons. 5. Law with regard to interference in an order of acquittal is well-settled. Referring to various decisions, the Hon'ble Supreme Court, in the case of Valson Vs. 4. Basically, the prosecution relied upon the theory of "last seen together" as well as recovery of a weapon at the instance of the accused persons. 5. Law with regard to interference in an order of acquittal is well-settled. Referring to various decisions, the Hon'ble Supreme Court, in the case of Valson Vs. The State of Kerala, reported in AIR 2008 SCW 5203 has held that an order of acquittal can be interfered with only if serious, substantial and compelling reasons exist. Their Lordships have further held that if two views are possible, the view going in favour of the accused has to be accepted. 6. In a recent Judgment of the Apex Court, rendered in the case of State of Madhya Pradesh Vs. Ramesh; (2011) 4 SCC 786 , the Hon'ble Supreme Court has reiterated that there is a presumption of innocence against the accused persons and if two views are possible on the basis of the evidence on record the appellate Court should not disturb the findings of acquittal. The aforesaid view has again been reiterated in the case of A Shankar Vs. State of Karnataka; (2011) 6 SCC 279 . In other words, there are double presumptions against the accused, who has been acquitted by the trial Court. 7. In the case before us, we find that altogether 13 (thirteen) witnesses were examined by the prosecution. Out of them, 5 (five) independent witnesses turned hostile and did not support the prosecution story. Out of the remaining witnesses, PW-1 is the father of the deceased himself; PW-2 is the boy, who was playing with the deceased before he went missing; PW-3 is a witness of the inquest; PW-9 is the scribe of the FIR; PW-10 is the Headmaster of a school, whose evidence is related to the juvenile age of the co-accused; PWs-11 and 12 are the nephews of the informant and PW-13 is the Investigating Officer. 8. The testimony of PW-2 is confined to the evidence that the deceased was last seen together with the accused persons. According to PW-2, while he was playing marbles the accused persons came to the place and sent him to fetch more marbles and on return he did not find either the deceased or the accused persons in the compound. His testimony is allegedly supported by PW-11. According to PW-2, while he was playing marbles the accused persons came to the place and sent him to fetch more marbles and on return he did not find either the deceased or the accused persons in the compound. His testimony is allegedly supported by PW-11. However, after going through the testimony of PW-11, we notice little discrepancy in their evidence. According to PW-2, he was playing with the deceased only and both the accused came later, whereas, according to PW-11, one of the accused Santosh was also playing with PW-2 and only the accused Samir came subsequently and asked PW-2 to fetch more marbles. Be that as it may, the fact remains that there was a long gap after the accused persons were seen in the compound of the house along with PW-2 and his dead body was recovered. The prosecution has not been able to show that the deceased did not come in contact with any other person during this long period. 8. The above apart, the nephew has improved his version while giving oral testimony in the Court. He has deposed that few days prior to the murder he had seen the accused persons quarrelling with his son for not giving their television set to the accused persons. PW-1 has further submitted about receipt of a ransom letter in the name of an insurgent group. However, we make it clear that in the FIR, no indication was found about the involvement of the accused persons in the crime. Besides this, the informant's nephew PW-11 is also totally silent about the quarrel between the accused persons and the deceased and his brothers. In this way, PW-11 has also not supported the informant. 9. We also notice that except doing the formality of seizure of a dao and the ransom letter, the investigation was not done in a scientific manner. The weapon was not sent in the forensic laboratory to ascertain the opinion whether the same weapon was used in the crime. Similarly, the ransom letter was also not sent to the handwriting expert for ascertaining that the ransom letter was written by either of the two accused persons. There is also discrepancy about the timing of the recovery of the weapon. Similarly, the ransom letter was also not sent to the handwriting expert for ascertaining that the ransom letter was written by either of the two accused persons. There is also discrepancy about the timing of the recovery of the weapon. According to PW-1, the dao was recovered at the instance of the respondent/accused No. 2 in the evening of 31.12.2002, whereas, according to PW-11, the recovery was made after 2-3 days. At the same time, it was one accused was juvenile and the other one was 19 years old and it is difficult to believe that such tender aged children would have involved in killing a minor boy for not fulfilling the ransom demand. 10. In view of various discrepancies and deficiencies in the prosecution case, we are not persuaded to interfere with the impugned Judgment. In the result, the appeal stands dismissed. 11. We appreciate the legal assistance given by Smt M Chowdhury, on behalf of the convicts as Amicus Curiae. Hence, it is ordered that she is entitled to a fee of Rs. 5,000/- (Rupees Five Thousand). 12. The Registry is directed to return the LCRs along with a copy of this judgment immediately.