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2012 DIGILAW 1171 (GAU)

Sahadeb Tripura v. State of Tripura

2012-10-01

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. The appellants named above along with two others namely Budhimohan Tripura and Shantimohan Tripura were charged together for commission of offence punishable under Sections 302 read with Section 34 of IPC, in connection with Case No. ST 49 (ST/B) of 2004, by the learned Additional Sessions Judge, Belonia, South Tripura and on trial, the learned Sessions Judge acquitted all the accused persons from the charge framed against them but found the appellants, named above, guilty of committing offence punishable under Section 304 part (ii) of IPC and sentenced them to suffer R.I. for 5 years and to pay a fine of Rs. 10,000/- each in default of payment to suffer further S.I. for one year. Heard learned Senior Counsel, Mr. A.C. Bhowmik, assisted by learned counsel, Mr. P. Saha for the appellants and learned Additional P.P., Mr. P. Bhattacharjee for the State respondent. 2. Prosecution case is that on 04.12.2000, at about 5 p.m. Bishnu Charan Tripura, aged about 35 years, went out of his house along with the accused appellants Biswamitra Tripura and Sahadeb Tripura for the shop of Swapan Patari (P.W. 13) and there, in front of the shop, Bishnu Charan had a quarrel with Shantimohan Tripura (accused acquitted from the charge) at about 6/6-30 p.m. Thereafter, Bishnucharan along with accused appellant Biswamitra and Sahadeb went to the house of Chintamohan Tripura (P.W. 7) and they took liquor in the house of Chintamohan together. At about 8 p.m., they left the house. On that night Bishnu Charan did not return home. On the following day, at about 10/11 a.m. dead body of Bishnucharan was found with bleeding injury on head at Dashamani para, in a jackfruit garden. Hearing about the death of Bishnucharan, his brother Bishnudas Tripura (P.W. 4) lodged an FIR in writing with the O.C., Belonia P.S. narrating the fact and accordingly, Belonia P.S. case No. 52/2000 read with Section 34 of IPC was registered and an investigation was taken up. 3. Hearing about the death of Bishnucharan, his brother Bishnudas Tripura (P.W. 4) lodged an FIR in writing with the O.C., Belonia P.S. narrating the fact and accordingly, Belonia P.S. case No. 52/2000 read with Section 34 of IPC was registered and an investigation was taken up. 3. In course of investigation, I.O. prepared inquest report over the dead body of Bishnucharan; arranged postmortem examination over the dead body; arrested accused appellants and other suspects on the date of lodging the FIR itself; examined material witnesses and thereafter submitted charge sheet against the accused appellants and others for commission of offence punishable under Section 302 read with Section 34 of IPC; on the basis of which, cognizance was taken by the learned SDJM, Belonia and on commitment of the case, learned Additional Sessions Judge framed charges against the accused persons including the appellants for commission of offence punishable under Section 302 read with Section 34 of IPC to which they pleaded not guilty and claimed to be tried. 4. Prosecution examined 17 witnesses to prove the charges. Out of them, P.Ws 4 and 6 are the full blood brothers of deceased Bishnucharan. P.W. 4 lodged the FIR. They stated that Bishnucharan went out of his house on 04.12.2000 at about 5 p.m. along with the accused appellants for the shop of Swapan Patari. P.W. 7 is the most important witness of the prosecution and he stated that Bishnucharan along with the appellants Biswamitra and Sahadeb took liquor in his house and left his house at about 8 p.m. P.W. 5 is a neighbour of the informant and he learnt about the occurrence from P.W. 4. P.Ws 8, 14, 15 and 16 stated nothing material. P.Ws 2, 9, 11 and 12 are seizure witnesses in respect of wearing apparels of the deceased, blood stains and empty bottle of liquor from the spot where the dead body was lying and inquest etc. There is nothing more in their deposition. P.W. 13 only stated that at about 6/6-30 p.m. Bishnucharan had a quarrel with accused Shantimohan Tripura in front of his shop and there is nothing more in his deposition. P.W. 1 is the Medical Officer who conducted postmortem examination over the dead body of the deceased. P.W.s 17 and 10 are the I.O. of the case. 5. Defence adduced no evidence. However, prosecution witnesses were cross examined on behalf of the accused persons. P.W. 1 is the Medical Officer who conducted postmortem examination over the dead body of the deceased. P.W.s 17 and 10 are the I.O. of the case. 5. Defence adduced no evidence. However, prosecution witnesses were cross examined on behalf of the accused persons. In course of their examination under Section 313 Cr. P.C. the accused appellants denied the allegation and pleaded innocence. There is no specific defence case pleaded by them. 6. Learned Sr. counsel, Mr. Bhowmik has submitted that the trial court committed a serious wrong in arriving at a finding of guilt of the accused appellants, in the facts and circumstances of the case. Drawing attention to the evidence on record, he has submitted that there is no iota of evidence that-accused appellants had any quarrel or dispute or any form of enmity with the deceased simply from the evidence of P.W. 7, it is transpired that they took liquor together and went out at a time. The dead body was found on the following day on 05.12.2000 at about 10/11 a.m. The time gap was very wide between the last-seen with the accused persons and the dead body was found and so, it was totally unjustified for the trial court to arrive at a finding that the accused person committed the offence of culpable homicide not amounts to murder. Learned counsel, therefore, prayed for an order of acquittal. 7. Learned Additional P.P., on the other hand, has submitted that from the evidence of P.Ws 7, 4 and 6 it is evident that deceased Bishnucharan went out of his house along with the accused appellants and he was last-seen alive with them in the house of P.W. 7 where they took liquor together. On the following day his dead body was found. Since the accused persons could not give any explanation as to where the deceased had gone after they left the house of P.W. 7, the serious in criminating circumstance points towards the appellants only and so, the finding of the learned trial judge cannot be said to have based on no evidence. He supported the order of conviction. However, learned Additional P.P. failed to justify the conviction under Section 304 Part (ii) of IPC. 8. Bishnucharan died a homicidal death and it is not disputed. P.W. 1 conducted postmortem examination over the dead body. He supported the order of conviction. However, learned Additional P.P. failed to justify the conviction under Section 304 Part (ii) of IPC. 8. Bishnucharan died a homicidal death and it is not disputed. P.W. 1 conducted postmortem examination over the dead body. He found fracture in right temporal region, haematoma and clotted blood, extradural haematoma, injury to brain matter, empty-sematous bullae of lung, puffy congested face, eyes, nail mark on neck, right to trachea, petechial haemorrhage on chest, bleeding from nose. He opined that the cause of death was of cardio-respiratory failure in a case of homicidal head injury with injury to brain and strangulation leading to asphyxia. The time since death is 36 to 48 hours. 9. According, to the prosecution, the deceased Bishnucharan left the house of P.W. 7 at about 8 p.m. on 04.12.2000. Postmortem examination was done on 06.12.2000 at about 1-30 p.m. and the doctor opined that the time of death was 36 to 48 hours before the postmortem examination. If we count the time from 8 p.m. of 04.12.2000 to 1-30 p.m. of 06.12.2000, the time gap appears to be around 41 and half hours which means immediately after going out of the house of P.W. 7, he might have been killed and the suspicion therefore, may be pointed to the accused appellants. But, surprisingly, on going through the postmortem report, which has been exhibited as Exbt. 3, it is found that the doctor found the stomach of the deceased empty. If the deceased along with the accused persons together took liquor in the house of P.W. 7 and was killed thereafter, at least within a few hour, his stomach would definitely contain the liquor consumed by him. Absence of liquor in his stomach raises a serious doubt about the veracity of the prosecution case, specially the evidence of P.W. 7. 10. Following aggravating circumstances brought on record in the deposition of the witnesses:- I. On 04.12.2000 at about 5 p.m. Bishnucharan went out of his house along with the accused appellants for the shop of P.W. 13, at about 6/6-30 p.m. Bishnucharan had a quarrel with accused Shantimohan Tripura. II. At about 7/7-30 p.m. Bishnucharan along with the accused appellants Sahadev and Biswamitra went to the house of P.W. 7 and they took liquor there. III. They left the house of Chintamohan at about 8 p.m. IV. II. At about 7/7-30 p.m. Bishnucharan along with the accused appellants Sahadev and Biswamitra went to the house of P.W. 7 and they took liquor there. III. They left the house of Chintamohan at about 8 p.m. IV. Bishnucharan did not return home on that night and inmates of his house did not search for him. V. On the following day i.e., on 05.12.200.0 at about 10/11 a.m. dead body of Bishnucharan was found at Dasamanipara in a jackfruit garden about 2 Km away from the house of Bishnucharan. VI. An empty bottle with the smell of country liquor was found near the dead body and that was seized and proved. VII. Bishnucharan died a homicidal death. 11. Mitigating circumstances brought on record in the evidence of prosecution witnesses:- I. There was no enmity between Bishnucharan and his companion accused-appellants i.e. Sahadev and Biswamitra. II. They are residents of same village. III. No quarrel or dispute while they took liquor in the house of P.W. 7. IV. According to post mortem finding, within 1/2 hours they came out from the house of P.W. 7, the death occurred, whereas stomach was found empty. Absence of liquor in the stomach raises a doubt in the prosecution case. V. An empty bottle of liquor was found near the dead body. Wherefrom that bottle came? No evidence. VI. Accused persons were arrested from their houses on the date of recovery of dead body i.e. lodging of FIR itself. 12. Prosecution relied on the circumstance of last-seen together and the court below arrived at a finding of guilt of the accused considering the fact that after taking liquor from the house of P.W. 7 Bishnucharan went out along with the convict appellants and thereafter he was found dead. So, the trial court drew presumption that the accused appellants might have committed the murder. 13. Circumstantial evidence means communication of facts, creating a network from which there is no escape for the accused because the facts taken as a whole do not admit of any inference except the guilt of the accused. The chain of circumstances must be complete. Conjectures or suspicion must not take place of legal proof. The evidence must be so complete as to exclude every hypothesis other than the guilt of the accused. This court in the case of Chauna Orang vs. State of Assam reported in 1981, Cr. LJ. The chain of circumstances must be complete. Conjectures or suspicion must not take place of legal proof. The evidence must be so complete as to exclude every hypothesis other than the guilt of the accused. This court in the case of Chauna Orang vs. State of Assam reported in 1981, Cr. LJ. 1661 has prescribed certain essential aspects governing admissibility and use of circumstantial evidence, those are:- I. Facts for a legal inference must be clearly proved and indubitably connected with the factum probandum. II. Burden is on party asserting existence of fact. III. Best evidence to be adduced. IV. Inculpatory fact must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis. V. Acquittal in case of reasonable doubt. 14. In the present case, the only circumstance brought on record is that before death of Bishnucharan, he was last seen living with accused appellants. There is no other circumstance that the accused appellants had any motive or any enmity or ill relation with the deceased to kill him. The case record shows that on the day of recovery of the dead body and lodging of FIR, both the accused appellants were arrested from their house. Had they been involved with the offence, they would go away from the operation of law. There is no criminal antecedent of the accused appellants. Doctor did not find any alcohol in the stomach of the deceased to arrive at a conclusion that the deceased took alcohol along with the accused appellants in the house of P.W. 7. Under such circumstances, let us see whether the theory of last seen together in the facts and circumstances of the case can be applied or not. 15. In the case of Ramreddy Rajeshkhanna Reddy & another vs. State of Andhra Pradesh reported in AIR 2006 SC 1658 , the Apex Court considered the circumstantial evidence of last seen together and in para 27 and 28 the court held thus:- 27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case Courts should look for some corroboration. 28. Even in such a case Courts should look for some corroboration. 28. In State of U.P. vs. Satish, (2005) 3 SCC 114 , this Court observed: 22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen 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 and 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 P.W. 2. 16. In the case of Md. Azad @ Samin vs. State of West Bengal reported in AIR 2009 SC 1307 , the Apex Court reiterated the law laid down by it in the case of Ramareddy Rajeshkhanna Reddy (supra) and State of U.P. Vs. Satish reported in (2005) 3 SCC 114 and regarding acceptability of circumstantial evidence, the observation made by the court in the case of Sarad vs. State of Maharastra, reported in AIR 1984 SC 1622 which may be quoted here for fair appreciation of the evidence of this case. In para 16, the court held thus:- A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 . Therein while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 17. In a latest decision of the Apex Court in the case of Sahadevan & another vs. State of Tamilnadu reported in AIR 2012 SCW 3206, the Apex Court on the issue of appreciation of the circumstantial evidence of last seen together in Para 31, 32, 33 and 34 held thus:- 31. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Marik vs. State of Bihar, 1994 Supp. (2) SCC 372, this Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded. 32. Even in the case of State of Karnataka vs. M.V. Mahesh, (2003) 3 SCC 353 , this Court held that merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court. 33. In the case of State of U.P. vs. Satish (2005) 3 SCC 114 : ( AIR 2005 SC 1000 ), this Court had stated that the principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen 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. 34. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 18. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 18. Taking into consideration the law laid down by the Apex Court, in respect of circumstantial evidence and considering the evidence of this case, I have no hesitation to arrive at a conclusion that the circumstances of last seen together in the case at hand is so week and cripple that it will not be wise for the court to record an order of conviction and sentence of the accused appellants simply based on the lone circumstance of last-seen together with the accused-appellants. 19. Accordingly, the appeal is allowed and the judgment and order of conviction and sentence is set aside. 20. Send back the L.C. record along with a copy of this judgment. The instant Criminal Appeal is accordingly disposed of. Appeal allowed.