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2012 DIGILAW 1110 (GAU)

Dhan Tripura v. State of Assam

2012-09-14

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 04.04.2007, passed, in Sessions Case No. 750 of 2005, by the learned Sessions Judge, Karimganj, convicting the accused-appellants, namely, Dhan Tripura and Purna Mohan Tripura, under Section 302 read with Section 34 IPC and sentencing each of them to undergo rigorous imprisonment for life and pay fine of Rs.5,000/- and, in default of payment of fine, suffer simple imprisonment for a period of six months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Accused Dhan Tripura sold some bamboos, on 29.02.2004, at Badsahi Reserve Forest to Subodh Das, brother of PW1, Jatindra Das. When Subodh Das went to cut bamboos, accused Purna Mohan Tripura objected thereto saying that the bamboos, in question, belong to him. When Subodh Das (since deceased) told accused Purna Mohan Tripura that accused Dhan Tripura had sold him the bamboos, Purna Mohan Tripura told that Dhan Tripura could not have sold the bamboos. On 01.03.2004, the three accused persons, namely, Dhan Tripura, Purna Mohan Tripura and Ajit Tripura, came to the house of Subodh Das, who used to live with his brother Jitendra Das (PW1), and his mother, Sefali Rani Das (PW2) and took him away to the jungle for settlement of the dispute, which had arisen, because of the cutting of the bamboos by Subodh Das in the circumstances as indicated hereinbefore. Since Subodh Das did not return home till late evening, his mother (PW2) went to the house of accused Dhan Tripura to find out the whereabouts of her son, Subodh Das. Accused Dhan Tripura told PW2 that though her son (Subodh) had gone to jungle with them (i.e., Dhan Tripura, Purna Mohan Tripura and Ajit Tripura), they had gone in different directions and ULFA (a terrorist organization) might have kidnapped Subodh. (ii) On the following day (i.e., on 02.03.2004), a search was conducted by the relatives and co-villagers of Subodh Das and they, eventually, found Subodh Das lying dead in a cave like whole in the said reserve forest. On the following day, i.e., on 03.03.2004, information, in writing, in this regard, was lodged by PW2 at Bazarichhera (Police) Patrol Post. (ii) On the following day (i.e., on 02.03.2004), a search was conducted by the relatives and co-villagers of Subodh Das and they, eventually, found Subodh Das lying dead in a cave like whole in the said reserve forest. On the following day, i.e., on 03.03.2004, information, in writing, in this regard, was lodged by PW2 at Bazarichhera (Police) Patrol Post. Based on the said information, General Diary Entry No. 4, dated 03.03.2004, was made at the said patrol post by the police officer, who was the in-Charge of the said Patrol Post, and he forwarded the same to Patharkandi Police Station within whose territorial jurisdiction the said patrol post fell. Treating the said written information (Ejahar) as First Information Report, Patharkandi Police Station Case No. 39 of 2004, dated 04.03.2004, was registered, under Sections 302 /201 /34 IPC, against the said three accused persons. During the course of investigation, the police visited the place, where the said dead body was found and prepared sketch and, on the basis of the statement, made by accused, Dhan Tripura, to the police and as shown by accused, Dhan Tripura, a dao was seized by Seizure List (Ext. 1). The police also seized a polythene bag containing some consumable articles, such as, beetle-nut, etc., by another Seizure List (Ext. 2). On a dao being produced by the wife of the accused, Ajit Tripura, the same was also seized by the police by Seizure List (Ext. 4). Inquest was held over the said dead body and the said dead body was also subjected to post mortem examination. On completion of investigation, police laid charge sheet, under Sections 302 /201 /34 IPC, against all the said three accused persons, namely, Dhan Tripura, Purna Mohan Tripura and Ajit Tripura. 2. At the trial, when a charge, under Section 302 read with Section 34 IPC, was framed against three accused-persons, all of them pleaded not guilty. During the course of trial, however, accused Ajit Tripura absconded and the trial proceeded against the present two appellants. 3. In support of their case, prosecution examined altogether ten witnesses. The two accused-appellants were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of total denial. No evidence was adduced by the defence. 4. In support of their case, prosecution examined altogether ten witnesses. The two accused-appellants were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of total denial. No evidence was adduced by the defence. 4. Having, however, found the present appellants guilty of the charge framed against them, learned trial Court convicted them accordingly and passed sentence against them as mentioned above, Aggrieved by their conviction and the sentence, which was passed against them, the two convicted persons have preferred this appeal. 5. We have heard Mr. M Biswas, learned Amicus Curiae, and Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. 6. Before we turn to various incriminating pieces of evidence, which the prosecution relied upon, we, in the facts and circumstances of the present case, deem it appropriate to take note of the medical evidence on record. It may be noted, in this regard, that the doctor (PW7) had, admittedly, peformed post mortem examination, on 03.03.2004, on the dead body of Subodh Das and found, according to the evidence of the doctor, as follows: On external appearance An average built Hindu male aged about 33 years whose rigor mortis was present, eyes & mouth closed. 1. One lacerated injury over the cheek about 2"x 1" x bone depth. 2. There was huge swelling of the right side of the face. 3. Body was covered with mud. Cranium & Spinal Canal Scalp, Skull, Vertebrae-Intact; Others intact & Pal. Thorax Walls, Ribs and Cartilages-Intact; Heart - Pale & empty, Others-Pals. Abdomen Wall-Intact Stomach and its contents-Undigested food particles; Small intestine & its contents contained mucous secretion, Large intestine and its contents contained faucal matter Organs of generation etc. - Pale & healthy, Others-Pale. Muscles, bones and joints - Nil More detailed description Injuries were ante mortem. Opinion In my opinion death was due to shock and hemorrhage resulting from sustained injuries. Ext. 3 is the said post mortem report and Ext. 3(1) is my signature thereto. 7. - Pale & healthy, Others-Pale. Muscles, bones and joints - Nil More detailed description Injuries were ante mortem. Opinion In my opinion death was due to shock and hemorrhage resulting from sustained injuries. Ext. 3 is the said post mortem report and Ext. 3(1) is my signature thereto. 7. What is, now, of immense importance to note, in the evidence given by doctor (PW7), is that though he has given an opinion that it was due to shock and hemorrhage resulting from the injuries sustained, which caused the death, it needs to be borne in mind that a medical expert is not a witness of fact and his opinion is relevant for the purpose of enabling a Court to arrive at a correct decision. The evidence of an expert, including a medical practitioner, is merely advisory in nature. It is, ultimately, the bounden duty of the Court to determine if the findings, deposed to by a doctor and the opinion given by him with regard to the nature of injuries or the opinion as regards death, is or is not correct. 8. In the case at hand, what the deceased was found to have suffered was lacerated injury on his cheek and swelling on the right side of the face. Thus, both the injuries aforementioned were on the face of the deceased. Particularly, when there was no bleeding shown to have taken place from the said injuries, we are unable to convince as to how the doctor (PW7) could give an opinion that it was due to the shock and hemorrhage, resulting from the said two injuries, which became the cause of death of Subodh Das. We find ourselves wholly unable to agree with the opinion expressed by the doctor (PW7) so far as the cause of death of deceased, Subodh Das is concerned. We have, however, no reason to doubt the correctness or veracity of the doctor's finding that there was a lacerated injury on the cheek of the said deceased and swelling on the right side of his face, both the injuries being ante mortem in nature. 9. Situated thus, it becomes clear that the cause of death of Subodh Das could not be proved by the prosecution. 10. 9. Situated thus, it becomes clear that the cause of death of Subodh Das could not be proved by the prosecution. 10. What logically follows from the above discussion is that though we are satisfied that two injuries, as described by the doctor (PW7), had been found on the said dead body and that the said injuries were ante mortem in nature, but the fact remains that the cause of his death has not been correctly ascertained by doctor (PW7). 11. It cannot, however, be ignored that mere failure of the medical expert to determine correctly the cause of death would not automatically lead the accused to acquittal if, otherwise, cogent, reliable, convincing and trustworthy evidence exists on record showing that the deceased had met with homicidal death at the hands of the accused-appellants. 12. Bearing in mind what is indicated above, we, now, turn to the evidence of PW1, brother of the said deceased and informant of this case. We notice that according to his evidence, accused, Dhan Tripura, had sold some bamboos to Subodh Das and when Subodh Das went to cut the bamboos, accused Purna Mohan Tripura objected thereto by claiming that the bamboos belong to him and, on the following day, all the three accused, namely, Dhan Tripura, Puma Mohan Tripura and Ajit Tripura came to the house of Subodh Das at about 8.00 am and took him with them towards the jungle for settlement of dispute, which had arisen, because of the cutting of the bamboos by deceased Subodh Das. It is in the evidence of PW1 that when he returned home, he learnt from his mother (PW2) that Subodh had not returned home, whereupon he sent his mother (PW2) to the house of accused Dhan Tripura and when Subodh's mother (PW2) reached accused Dhan Tripura's house and enquired from him as to where Subodh was, accused Dhan Tripura, according to PW1, told PW2 that Subodh had left them in jungle and had gone to another direction. It is also in the evidence of PW1 that his mother reported to other co-villagers, a search was made for Subodh and his dead body was, eventually, found in the jungle with injuries on his body and, then, police were informed by lodging an Ejahar. 13. In his cross-examination, PW1 has clarified that the jungle, in question, was Badsahi Reserve Forest owned by the Government. 13. In his cross-examination, PW1 has clarified that the jungle, in question, was Badsahi Reserve Forest owned by the Government. The defence has clearly proved that neither in his Ejahar nor in the statement before the police, PW1 had stated that accused Purna Mohan Tripura had objected to the cutting of bamboos nor had he (PW1) claimed, in his statement to the police, contrary to what he claims in the Court, that he had heard exchange of words between the accused and the said deceased. The investigating officer has also conformed that PW1 had not stated before him that accused persons had taken away Subodh to the jungle. 14. In the face of what have been pointed out above, we do not find that much value can be attributed to the evidence of PW1 except that Subodh did not return home on the day as described by PW1 and the search made for Subodh on the following day, which led to the recovery of the dead body of Subodh. 15. Coming to the evidence of PW2, mother of the said deceased, we find that according to her evidence, the accused persons are her co-villagers, her son, Subodh, had purchased bamboos from accused Dhan Tripura and there was some discord for cutting the bamboos and the three accused persons aforementioned took Subodh to the jungle for settlement and when Subodh did not return home, she went to the house of Dhan Tripura and when she asked, Dhan Tripura stated that Subodh had gone to the jungle with them, but he had gone somewhere else and might have been kidnapped by ULFA. It is in the evidence of PW2 that on the following day, she informed her co-villagers and a search was made and her son was found dead in the jungle. 16. From the cross-examination of PW2, nothing could be elicited at all by the defence to show that any part of her evidence, as depicted above, is untrue or false. 17. Situated thus, it becomes clear that the accused aforementioned had taken Subodh from his house to the jungle for settlement of the dispute, which had arisen because of the cutting of the bamboos by Subodh, which he had claimed to have purchased from accused Dhan Tripura and since thereafter, no one saw Subodh alive until the time his dead body was found in a cave in the jungle. Though it has been deposed to by PW2 that the accused persons had confessed, we have carefully scanned the evidence on record and we do not find that any confession had been made by any of the accused except allegedly in the presence of the police. Otherwise also, no reason had been assigned and no specific circumstance had been brought on record by the evidence, adduced by the prosecution, to show as to what made the accused confess. We, therefore, find it well-neigh impossible to place any reliance on the claim of PW2 that the accused had made confession. 18. Coupled with the above, we have already pointed out above, while describing the case of the prosecution, that two daos had been recovered and seized by the police as weapons of offence. 19. In the light, however, of the injuries, which were found on the dead body of Subodh, it is abundantly clear that the two injuries, which Subodh suffered, namely, lacerated injury and swelling, could not have been caused by the said daos. Not much significance can, therefore, be attributed to the weapons, which were allegedly seized by the police, particularly, when the said daos have not been examined by any serologist and there is, in fact, nothing in the evidence on record showing that the said weapons had blood stains. 20. What emerges from the above discussion is that Subodh was taken by the present two appellants, namely, Dhan Tripura and Puma Mohan Tripura, accompanied by accused Ajit Tripura, to the jungle for settlement of the dispute, which had arisen amongst them as regards cutting of the bamboos by Subodh, and, according to the evidence of PW2, what accused Dhan Tripura told her was that Subodh did go with them to the said jungle; but since thereafter, he was never seen alive and his dead body was found on the following day. Thus, there can be no escape from the conclusion that the accused-appellants, along with their associate, Ajit Tripura, were last seen with the said deceased. 21. Thus, there can be no escape from the conclusion that the accused-appellants, along with their associate, Ajit Tripura, were last seen with the said deceased. 21. Ordinarily, the circumstance of last seen together would be relevant, when it is established by the evidence on record that the time gap between the point of time, when the accused and the deceased were seen together alive, and when the deceased was found dead, is so small that possibility of any other person being with the deceased can be completely ruled out. Thus, the time gap between the accused person having been seen in the company of the deceased and the death of the deceased would be a material consideration for appreciation of evidence in such matters. What is, however, of paramount importance to note is that it cannot be always stated that the evidence of last seen together must be rejected merely because the time gap between the point of time, when the accused persons were seen in the company of the deceased, and the coming into light of the offence committed is of a considerable long duration. There is no fixed or straight-jacket formula in respect of duration of time gap. Obviously, it would depend on the facts of a given case if the circumstance of the last seen together is so material that it can lead the Court to conclude that none, but the accused was last seen in the company of the deceased and was, therefore, the one, who had caused death of the deceased. Reference, in this regard, may be made to the cases of Bodhraj Vs. State of J & K, reported in (2002) 8 SCC 45 , State of V.?. Vs. Satish, reported in (2005) 3 SCC 114 , Ramreddy Rajesh Khanna Reddy Vs. State of A.P., reported in (2006) 10 SCC 172 and Jaswant Gir Vs. State of Punjab, reported in (2005) 12 SCC 438 . The Supreme Court has summarized the theory of last seen together, in State of Goa Vs. Vs. Satish, reported in (2005) 3 SCC 114 , Ramreddy Rajesh Khanna Reddy Vs. State of A.P., reported in (2006) 10 SCC 172 and Jaswant Gir Vs. State of Punjab, reported in (2005) 12 SCC 438 . The Supreme Court has summarized the theory of last seen together, in State of Goa Vs. Sanjay Thakran & Anr., reported in (2007) 3 SCC 755 , at Para 34, as follows: From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. 22. In the backdrop of law as described above, when the facts of the present case are taken into account, it becomes clear that though a sufficiently long time elapsed between the point of time, when the appellants, accompanied by accused Ajit Tripura, had taken Subodh with them to the jungle and the recovery of the dead body of Subodh on the following day, the evidence on record makes it clear that Subodh did go to the jungle with the said accused and was never seen alive thereafter and it was his dead body, which was recovered. In such circumstances, there can be no escape from the conclusion that the injuries, which had been found on the dead body of Subodh, were caused by the present appellants and their co-accused, Ajit Tripura, in furtherance of their common intention. 23. Considering the fact that there is nothing in the evidence on record to show that the present appellants, along with the said co-accused, had, in furtherance of their common intention, caused Subodh's death, this Court is unable to hold that the conviction of the accused-appellant, under Section 302 read with Section 34 IPC, is correct and sustainable, particularly, because there is no evidence on record to show, far less prove, that Subodh's death was homicidal in nature. At the same time, in the absence of any evidence, discernible from the evidence on record, showing that any one other than the present appellants, along with their co-accused, had, in furtherance of their common intention, caused the injuries, which were found on the dead body of Subodh, we are of the considered view that the appellants ought to have been held guilty of causing simple hurt punishable under Section 323 read with Section 34 IPC. 24. Because of what have been discussed and pointed out above, this appeal partly succeeds. While the conviction of the accused-appellants and the sentence, passed against them by the judgment and order under appeal, are hereby set aside, both the appellants are held not guilty of the charge of murder, punishable under Section 302 read with Section 34 IPC, they are hereby held guilty of having committed an offence, punishable under Section 323 read with Section 34 IPC, and are hereby accordingly convicted. 25. Considering the circumstances in which the offence proved to have been committed by the accused-appellants, we sentence them to suffer rigorous imprisonment for a period of one year. 26. Because of the fact that the accused-appellants have already undergone imprisonment for a period longer than one year, which they, now, stand sentenced to, we direct that they be released forthwith unless they are required to be detained in connection with any other case. 27. The learned Amicus Curiae be paid a sum of Rs.5,000/- for his valuable assistance rendered to this Court. Send back the LCR with a copy of this judgment and order.