Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 167 (TRI)

Sani Debbarma v. State of Tripura

2014-05-06

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- This appeal by the convict is directed against the judgment and order of conviction and sentence dated 17.03.2012 passed by the Addl. Sessions Judge, West Tripura, Khowai in S.T. 26(WT/K)/2011, whereby the appellant has been convicted for committing the offence punishable under Section 302 of the IPC and sentenced to suffer imprisonment for life with a fine of ` 10,000, in default to suffer further RI for one year. 2. By lodging a complaint, Smt. Binata Debbarma (PW. 3), disclosed that her elder brother, namely Ratan Debbarma went to the house of Vim Chandra Debbarma of Kalaipara. There he had quarrel with Sani Debbarma, the appellant. There broke out a scuffle when the appellant had dealt a blow on her brother’s head with an axe in order to kill him. Ratan Debbarma was taken to the Teliamura hospital and thereafter to the G.B.P. hospital for his treatment, but he succumbed to the injuries on that very day i.e. on 13.04.2011 at night. 3. Based on the said complaint dated 14.04.2011, Mungiakami P.S. Case No. 09/2011 was registered under Section 302 of the IPC and taken up for investigation. After investigation, the charge-sheet was filed against the appellant under Section 302 of the IPC. In due course, the case was committed to the Addl. Sessions Judge, West Tripura, Khowai for trial. The Addl. Sessions Judge, West Tripura, Khowai framed the charge against the appellant for voluntary causing hurt to Ratan Debbarma by an axe, which, caused death of said Ratan Debbarma, under Section 302 of the IPC. The appellant pleaded not guilty and claimed to face the trial. 4. In order to substantiate the charge, the prosecution has adduced as many as 11 witnesses and introduced 7 documents (Exbt. 1 to Exbt. 7) including the Post Mortem Examination Report (Exbt. 5) and the complaint (Exbts.-6, 3 and 2). 5. After recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. for having the response towards the incriminating materials surfaced in the evidence. Thereafter, the Addl. Sessions Judge, on appreciation of the evidence so led by the prosecution, returned the finding of conviction as stated. This appeal has questioned the legality of the findings whereupon the conviction has been returned. 6. Mr. Ratan Datta, learned counsel appearing for the appellant, has submitted that there surfaced no evidence against the appellant. Thereafter, the Addl. Sessions Judge, on appreciation of the evidence so led by the prosecution, returned the finding of conviction as stated. This appeal has questioned the legality of the findings whereupon the conviction has been returned. 6. Mr. Ratan Datta, learned counsel appearing for the appellant, has submitted that there surfaced no evidence against the appellant. Despite that, the said finding of conviction has been returned by the Addl. Sessions Judge. Hence, it is submitted that the prosecution has failed to establish the charge. 7. Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the state has submitted in reply that it has been clearly established that the deceased was injured in the house of the appellant and he had been taken to the hospital and subsequently he succumbed to those injuries. It has appeared that the death was homicidal in nature from the injuries at the scalp by sharp cutting weapon. That apart, the appellant had led to the discovery of the weapon (Exbt. M.O. 1 series), which was concealed in the banana bush. If these episodes of circumstances are read conjointly it would create a chain in exclusion of the hypothesis of innocence of the appellant to indicate that none but the appellant committed the murder of Ratan Debbarma. 8. Neither of the counsel has challenged the medical opinion as to the cause of death. The Inquest Report (Exbt. 4) and the Post Mortem Examination Report (Exbt. 5) are congruous in their opinion. In the Inquest Report it has been recorded that there had been cut injury and bruises on the backside of the deceased’s head whereas in the Post Mortem Examination Report as introduced by Dr. Jayanta Sankar Chakraborty (PW. 8) it has been recorded that there were several anti-mortem injuries including that cut injury on the scalp and for the cause of death the said injury on the scull has been held to be responsible for death. It has been observed that Cause of death in this case is shock due to brain injury. This death is homicidal in manner. Injury No. (1) is sufficient to cause death in ordinary course of nature. The anti-mortem injuries as recorded in the Post Mortem Examination Report (Exbt. It has been observed that Cause of death in this case is shock due to brain injury. This death is homicidal in manner. Injury No. (1) is sufficient to cause death in ordinary course of nature. The anti-mortem injuries as recorded in the Post Mortem Examination Report (Exbt. 5) are as under: (1) Incised injury on left occipital and left temporal region of scalp; (2) Incised injury on left parieto-temporal region of scalp; (3) Lacerated injury on vertex region of scalp; (4) Lacerated injury on external occipital region of scalp; (5) Lacerated injury on left side of occipital region of scalp. 9. For further appreciation, it would be proper to survey the evidence led by the prosecution on the material points. 10. PW. 1, namely Rabindra Debbarma has stated that he came to know about the occurrence after his returning home at night. Since he did not support the statement that he made to the Investigating Officer, the prosecution had declared him as hostile to the prosecution case with leave from the trial court. His previous statement (Exbt. 1) has been marked during his examination by the prosecution to demonstrate that he stated to have seen the appellant giving a blow on the head of the deceased by an axe. 11. PW. 2, namely Sudhanya Debbarna is a seizure witness of the axe (Exbt. M.O. 1). What he has stated in the court is of serious consequence. He has stated that he was summoned by the police from his house after they seized one axe from the house of the appellant. 12. PW. 3, namely Smt. Binata Debbarma has stated that she wrote the complaint (Exbt. 3) herself. According to her, the appellant himself went to the police station and informed the fact to the police and thereafter the police called her from her house. As per the direction of the police, she wrote the complaint by her own hand and put her signature. She has also identified the complaint (Exbt. 3). 13. PW. 4, namely Smt. Lilapati Debbarma is the wife of the deceased. She has stated that on receiving the information from Rabindra Debbarma, her brother that her husband was lying injured in the house of the appellant, she rushed there and found her husband lying on the ground in the senseless condition having cut injury on her scalp. The house of PW. She has stated that on receiving the information from Rabindra Debbarma, her brother that her husband was lying injured in the house of the appellant, she rushed there and found her husband lying on the ground in the senseless condition having cut injury on her scalp. The house of PW. 4 and the place of occurrence is at a distance of half kilometre. While examining this witness (PW. 4), the following observation has been made by the Addl. Sessions Judge, West Tripura, Khowai: (This female witness appear to be shaky and did not answer to the question put to her without hesitation. This court examined the witness in absence of any counsel of prosecution hence she could not be declared hostile). We will deal with such observation in the latter part of this judgment inasmuch as it reflects on the legal acumen of the said Judicial Officer. However, PW. 4 did not reveal anything further of material consequence. 14. PW. 5, namely Ramcharan Debbarma did not have any direct knowledge about how the occurrence took place, but after receiving the information he had rushed to the house of the appellant and found Ratan Debbarma lying on the ground inside the appellant’s house with cut injury and blood was oozing out from his head. He was senseless at that time. He alongwith others had transported Ratan Debbarma to the Teliamura hospital, wherefrom he was taken to the G.B.P. hospital, Agartala on reference. PW. 5 was also witness to the inquest and he had signed the inquest report. 15. PW. 6, namely Rambahadur Debbarma, the father of the deceased, had received the information from one Dharmendra Debbarma that the appellant gave a blow on the head of his son Ratan Debbarma by an axe and as a result of that assault, his son lying injured in the house of the appellant. On having such information he had rushed to the house of the appellant and found Ratan Debbarma lying in senseless condition and at the backside of his head he found a cut injury, but the appellant was not found at his house. He had also taken part in transporting Ratan Debbarma to the Teliamura hospital and thereafter to the G.B.P. hospital, Agartala. Be it mentioned here that, Dharmendra Debbarma has not been examined by the prosecution. 16. PW. 7, namely Ameet Barma is the seizure witness of the axe (Exbt. He had also taken part in transporting Ratan Debbarma to the Teliamura hospital and thereafter to the G.B.P. hospital, Agartala. Be it mentioned here that, Dharmendra Debbarma has not been examined by the prosecution. 16. PW. 7, namely Ameet Barma is the seizure witness of the axe (Exbt. M.O. 1), but he could not identify the said axe in the court. 17. PW. 8, Dr. Jayanta Sankar Chakraborty had conducted the Post Mortem Examination over the dead body of Ratan Debbarma and prepared the Post Mortem Examination Report (Exbt. 5). We have already discussed about his opinion in the preceding part of the judgment. 18. PW. 9, namely Bir Kumar Debbarma is the father-in-law of the deceased who appeared in the place of occurrence after having the information that his son-in-law was lying injured in the house of the appellant. He did not find the appellant in the house. What he has stated that he heard from the villagers that the appellant had caused hurt to Ratan Debbarma. He did not even name the villagers, but in the cross-examination he has stated that he did not enter in the house of the appellant. However, he has admitted that he had signed on the Inquest Report as a witness. 19. PW. 10, namely Sukharai Debbarma was tendered by the prosecution whereas PW. 11, namely Nandan Baidya is the Investigating Officer. 20. PW. 11 has narrated briefly how he had conducted the investigation, but he had contradicted the statement of PW. 3 by stating that on receiving the oral information from one Smt. Binata Debbarma (PW. 3) in respect of the incident, he had asked her to submit the written ejahar. He had visited the place of occurrence and prepared the hand-sketch map with index (Exbt. 7). He has further stated that "When I visited the P.O. then accused was present. Sani Debbarma confessed before me that due to anger he caused death of Ratan Debbarma by an axe and he showed the place where he concealed the weapon of offence and from his identification I seized the axe". The I.O. has further stated that he had recorded the confessional statement, which led to the discovery of the said axe. He has also submitted that he had recorded the statement of the witnesses and it further appears that he did not record the statement of Dharmendra Debbarma who had informed PW. The I.O. has further stated that he had recorded the confessional statement, which led to the discovery of the said axe. He has also submitted that he had recorded the statement of the witnesses and it further appears that he did not record the statement of Dharmendra Debbarma who had informed PW. 6 about the occurrence. However, he had confirmed the statement of Rabindra Debbarma (PW. 1), where he had stated that he had witnessed the occurrence. After collecting the Post Mortem Examination Report, he had submitted the charge-sheet under Section302 of the IPC. 21. As Rabindra Debbarma (PW. 1) has turned hostile and did not support his previous statement, the prosecution has placed the following circumstances to prove the guilt of the appellant: (1) that the occurrence took place in the house of the appellant; (2) that Ratan Debbarma (the deceased) was taken to the hospital from that place; (3) discovery of the sharp cutting weapon (the axe), Exbt. M.O. 1 series, purportedly by aid of the disclosure statement made by the appellant; and (4) medical opinion as to the cause of the death. 22. The prosecution has definitely proved the circumstances that Ratan Debbarma was found in the injured condition in the house of the appellant and he had been transported to the hospital, as there he received a sharp-cutting injury on his head and that he died out of the said injury. The link of the appellant with the offence as sought to be established by the prosecution is on the basis of the purported discovery of the weapon of offence (the axe) from a place inside the house of the appellant. 23. It has been stated by none other than PW. 11, the Investigating Officer that the disclosure statement was made to him by the appellant when he was not arrested nor was he in the police custody. Whether said statement to PW. 11 can be admissible under Section 27 of the Evidence Act is required to be examined. If not admissible then the statement is hit by Section 25 of the Evidence Act, which provides that no confession made to the police officer shall be proved as against a person accused of any offence. Unless the disclosure statement made in the custody of a police officer, such statement cannot be excepted under Section 27 of the Evidence Act. 24. In Suresh Chandra Bahri Vs. Unless the disclosure statement made in the custody of a police officer, such statement cannot be excepted under Section 27 of the Evidence Act. 24. In Suresh Chandra Bahri Vs. State of Bihar, reported in AIR 1994 SC 2420 and State of Rajasthan Vs. Bhup Singh, reported in (1997) 10 SCC 675 , the apex court has culled out the essentials for applying the exception to the provisions of Sections 25 and 26 of the Evidence Act as made in Section 27 of the Evidence Act as under: (i) the person giving information must be an accused of an offence and (ii) he must also be in police custody. As such, the so called disclosure statement is hit by Section 25 of the Evidence Act and cannot be excepted under Section 27 of the Evidence Act. That apart, no evidence has been placed by the prosecution in the record to show that the Exbt. M.O. 1 (the axe) is related to the offence. There is no forensic report to cover that aspect of the matter. 25. In view of above, this court is unable to accept the contention of Mr. R.C. Debnath, learned Addl. Public Prosecutor that a well-knit chain of circumstances has been formed in exclusion of the other hypotheses towards the guilt of the appellant. The prosecution has failed to prove the case by way of forming the chain of circumstances towards the guilt of the appellant. As such, the appellant is entitled to get the benefit of doubt. Accordingly, he is acquitted from the charge. 26. In the result, the impugned judgment and order is set aside. The appellant be released forthwith, if he is not wanted in any other case. 27. We are constrained to observe that the learned Addl. Sessions Judge, West Tripura, Khowai, by leading the examination-in-chief has crossed the limit of his jurisdiction. Moreover, we have found from the record that he himself has noted the presence of the Addl. Public Prosecutor in the trial. In absence of the Public Prosecutor or the Addl. Public Prosecutor, it is not the duty of the Sessions Judge or any other Judicial Magistrate who is presiding over a trial, to lead the evidence. We deprecate such practise. If in future such practise is observed by this court, stern action would be taken against the Judicial Officer presiding over the trial. Public Prosecutor, it is not the duty of the Sessions Judge or any other Judicial Magistrate who is presiding over a trial, to lead the evidence. We deprecate such practise. If in future such practise is observed by this court, stern action would be taken against the Judicial Officer presiding over the trial. The observation as reproduced has contaminated the principles of fair trial. Since we have already set aside the judgment and order of conviction, we refrain from making any further observation. 28. The appeal, therefore, stands allowed. Send down the LCRs forthwith.