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2015 DIGILAW 331 (TRI)

Bapi Acharjee v. State of Tripura

2015-06-09

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT S. Talapatra, J. 1. Heard Mr. B. Deb, learned counsel appearing for the appellant as well as Mr. A.Ghosh, learned Public Prosecutor appearing for the State. 2. This is an appeal under Section 374(2) of the Cr P C against the judgment of conviction dated 03.08.2014 delivered in case No. S.T 173 of 2011 by the Additional Sessions Judge, West Tripura, Agartala, Court No. 5. 3. The appellant has been convicted under Section 302 read with Section 34 of the IPC and under Section 201 with Section 34 of the IPC and sentenced to suffer imprisonment for life and pay a fine of Rs.10,000/- and in default to suffer further imprisonment for three months under Section 302 read with 34 of the IPC and to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/- in default to suffer simple imprisonment for two months under Section 201 read with Section 34 of the IPC. It has been directed that both the sentences shall run concurrently. 4. The genesis of the prosecution case is rooted in the written ejahar filed by one Sankar Acharee (PW-6) disclosing that on 21.12.2009 at about 7.00 p.m one Dilip Bhowmik along with the appellant Bapi Acharjee came to their residence with his wife who abandoned him for ‘an evil relation’ with that Dilip Bhowmik. At that time Dilip Bhowmik threatened him if his wife made attempt to stay with him, he would kill his wife and son (PW-7). Then his wife left with Dilip Bhowmik and Bapi Acharjee. Again at about 11.15 p.m Dilip Bhowmik and Bapi Acharjee came at his residence and asked him to open the door as his wife was unwell but he did not open the door rather did inform the Police outpost at Ramnagar. On the following morning, he came to know that the dead body of his wife had been located in Barjala and thereafter he lodged the written ejahar to the West Agartala police station at about 8.10 a.m. On such disclosure, West Agartala police station case No. 332 of 2009 under Sections 302/109 of the IPC was registered and taken up for investigation. 5. The case was investigated by one Sub Inspector of police namely Sri Pranjit Ghosh (PW-15). 5. The case was investigated by one Sub Inspector of police namely Sri Pranjit Ghosh (PW-15). On completion of the investigation the charge sheet was filed against Dilip Bhowmik and the appellant under Section 302/34 and under Section 201/34 of the IPC. On taking cognizance of those offences, the case along with the police paper were committed to the court of the Sessions Judge, West Tripura, Agartala. The Sessions Judge, in course of time transferred the case to the court of Additional Sessions Judge, Court No.5, West Tripura, Agartala for trial. The Additional Sessions Judge framed two distinct charges against the appellant under Section 302/34 and under Section 201/34 of the IPC. Before framing the charge, the other accused person, namely Dilip Bhowmik died. The appellant pleaded not guilty and claimed to face the trial. To substantiate the charge, the prosecution adduced as many as 15 witnesses and introduced 14 documentary evidence including the inquest report, the post mortem examination report, the toxicological report and the chemical examination report. 6. There is no doubt that the entire prosecution case is set up on one aspect that the victim, Iti Acharjee before her death was last seen with the appellant and Dilip Bhowmik, since deceased. After recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C when he again reiterated his plea of innocence stating that he has been falsely implicated in this case merely on suspicion. On purported appreciation of the evidence the trial Court returned the finding of convictions, as stated. This appeal questions that finding. 7. Mr. B.Deb, learned counsel appearing for the appellant has categorically raised two points which are as follows: (i) There is no evidence of homicide at all and he has referred the post mortem examination report and statement of the PW-5 Dr. Jayanta Sankar Chakraborty who has categorically stated that even though the cause of death is asphyxia but the cause of asphyxia could not be ascertained by the forensic examination, and (ii) The last seen together cannot merely be the basis of convicting someone. Moreover difference between the last seen together and the discovery of the dead body is engulfed by such a longer period that on the basis of that nobody could be convicted. 8. On the other side, Mr. Moreover difference between the last seen together and the discovery of the dead body is engulfed by such a longer period that on the basis of that nobody could be convicted. 8. On the other side, Mr. A. Ghosh, learned Public Prosecutor has fairly submitted that by forensic examination, the cause of death could not be ascertained. Therefore, he has acceded that there is lack of tangible elements to establish homicide. In view of that statement, we would have without any discussion interfered with the impugned judgment but for purpose of showing that how casually the trial Court has appreciated the evidence on record, we may make a short survey of the evidence on record. 9. PW-1 Sukkur Miah, is the witness who has merely seen the dead body of Iti when the police personnel were there. PW-2, Sabitri Chakraborty was declared hostile and she was not even cross examined, except her statement being admitted in the evidence. PW-3, Trishna Acharjee is the elder sister of the deceased. She has not stated anything of her own but narrated what she heard from PW-6. PW-4, Smt. Krishna Acharjee the elder sister of the deceased, Iti Acharjee has divulged that both Dilip and Bapi had tortured her sister and her sister Iti apprised her of such torture. PW-5, Dr. Jayanta Sankar Chakraborty is the vital witness as he carried out the post-mortem examination over the dead body of Iti Acharjee along with Dr. Partha Debbarma. He has narrated how the examination was carried out. He has categorically stated that “on examination of the dead body, no external injury was found. Rigor mortis was present all over the body. Postmortem lividity was present over back of trunk and limbs and fixed. Initial report was written on 22.12.2009 by Dr. Partha Debbarma. Opinion as to cause of death was kept pending till receipt of report of viscera analysis, H.P. examination and vaginal swab analysis. On 08.03.2010 the said three reports being produced before us, perusing the same we gave the opinion relating to the cause of death. The cause of death in this case was Asphyxia, however the cause of Asphyxia could not be ascertained. The time of postmortem examination since death was 8 hours to 24 hours. The same day Dr. Partha Debbarma completed the report. The cause of death in this case was Asphyxia, however the cause of Asphyxia could not be ascertained. The time of postmortem examination since death was 8 hours to 24 hours. The same day Dr. Partha Debbarma completed the report. In the report visceral analysis report, H.P. examination report and the vaginal examination report was mentioned by Dr. Partha Debbarma.” [emphasis in the statement supplied] PW-6, Sri Sankar Acharjee, who lodged the written ejahar has stated in the trial something more what he has disclosed in the written ejahar. He has stated that his wife Iti Acharjee, left him behind to live with one of the accused Dilip Bhowmik. On 21.12.2009 at around 9.30 a.m his wife called him in the mobile and informed him that she was being tortured by Dilip Bhowmik and that Bapi Acharjee was also with him. So she would return to her house. At about 4 p.m that day Bapi Acharjee brought along the personal belongings of his wife. Around 7.30 p.m that day an Indica car came to his gate and his wife started calling his son to open the door. He found that Dilip Bhowmik was also with her. As his wife went to enter the house, Dilip Bhowmik abused him and also his wife, and attempted to assault him. Seeing this, wife went to the car saying that otherwise he would be in trouble. Thereafter Dilip Bhowmik took her away driving the car. After this, he informed the incident to his two sisters-in-law and also to his mother-in-law. Then he went to the Police outpost at Ramnagar and informed the incident. Around 11.15 p.m that night the same car arrived at his gate and appellant started calling him and his son. Hearing his voice, he opened the window by the road side and found Dilip Bhowmik in the steering of that very car. Bapi Acharjee in the rear seat and his wife on the left side of Dilip Bhowmik. He saw her resting on the seat. As he opened the window, the appellant asked him to open the door saying that his aunt Iti Acharjee was sick and they have come to leave her. As Bapi Acharjee said that his wife was sick, he was worried and asked his son to close the window. Immediately he called the police outpost at Ramnagar seeking their help. As he opened the window, the appellant asked him to open the door saying that his aunt Iti Acharjee was sick and they have come to leave her. As Bapi Acharjee said that his wife was sick, he was worried and asked his son to close the window. Immediately he called the police outpost at Ramnagar seeking their help. Almost simultaneously he found Dilip Bhowmik driving away the car with Bapi and his wife. No sooner had the vehicle left, the police vehicle arrived and he informed them what had happened. Thereafter the police left. At around 6 a.m next morning Shyamal Acharjee, father of Bapi Acharjee came to his house and informed that the dead body of his wife was found lying at South Barjala. After informing the near relatives he along with his son went to the spot and found the dead body of his wife lying in the road-side bush on the left side of the road from Durga chowmuhani side. He was cross-examined by the defence but he did not fundamentally change his statement. PW-7 Debabrata Acharjee, son of PW-6 has corroborated what has been stated by PW-6. PW-8 Sri Debasish Das Gupta was the landlord where Dilip Bhowmik and Iti Acharjee used to stay. He has narrated how he was troubled by their stay in the house. Those statements were nothing to do with the occurrence. PW-9 Subhadip Datta is the witness to the seizure of the vehicle from the Niladri Motors. PW-10, Hachan Miah, the father-in-law of the appellant was declared hostile by the prosecution. He has disclosed that the appellant was staying at their house at Barjala since their marriage and he has stated that on the previous night of recovery of dead body, the appellant was in that house. PW-11, Suman Kumar Chakraborty, is the forensic expert. He has stated that he had examined the exhibits marked ‘A’ to ‘J’. Exhibits ‘D’ to ‘J’ were transferred to Bio/Serology Division for chemical examination. Exhibit ‘A’ to ‘C’ contained stomach and small intestine with contents of the deceased, liver section, spleen full and kidney half of each and sample of the preservative. The exhibits were examined from 15.02.2010 to 25.02.2010. The examination did not reveal any common poison, alcohol, benzodiazepines and barbiturates. He has exhibited his report ( Exhibit 7). PW-12 Dr. Exhibit ‘A’ to ‘C’ contained stomach and small intestine with contents of the deceased, liver section, spleen full and kidney half of each and sample of the preservative. The exhibits were examined from 15.02.2010 to 25.02.2010. The examination did not reveal any common poison, alcohol, benzodiazepines and barbiturates. He has exhibited his report ( Exhibit 7). PW-12 Dr. Subhankar Nath, another forensic expert carried out the chemical examination in the Chemistry and Toxicology Division for exhibits ‘D’ to ‘J’ and there was no presence of seminal stain, spermatozoa, blood stain and saliva. On examination, no such thing could be detected in Exhibits-E, G, H, I and J. Samples D and F are confirmed to be the blood of human origin and the blood group was 'O'. PW-13, Pradip Saha, an ASI of police has stated that on the night of 21.12.2009 at about 9 p.m he was on duty at the police outpost at Ramnagar, when PW-6 arrived there and informed that on around 7.00 p.m one Dilip Bhowmik, Bapi Acharjee and Iti Acharjee went to the gate of his house in a red car bearing No. TR-01-U-0530. He has further informed that Dilip Bhowmik threatened him and his wife. Thereafter Dilip Bhowmik moved away with the vehicle. He entered this information in the G.D no. 390 and that GD entry was brought on record as Exhibit-9. He has further submitted that at about 11.20 p.m, Sankar Acharjee informed him over phone that the same car with the same persons reached his house and he was feeling insecure. So he had rushed to his house but did not find any vehicle in the nearby place. He has in his cross examination denied that there is no GD entry under no. 390. PW- 14, Sri Dhruba Acharjee is the scribe who wrote the ejahar as dictated by PW-6 and he has accordingly stated in the trial and identified the written ejahar and his signature. PW-15, Sri Pranjit Ghosh,is the Investigating Officer. He has briefly narrated how he has investigated the case by recording the statements of the witnesses, collecting the relevant materials including the various examination reports from the Forensic Science Laboratory and how he seized the material objects under proper seizure list. When prima facie case was found established against the appellant and Dilip Bhowmik, he filed the charge sheet against the accused persons. When prima facie case was found established against the appellant and Dilip Bhowmik, he filed the charge sheet against the accused persons. In the trial it did not reveal who saw the dead body first. He has further submitted that PW-3, Trishna Acharjee did not state to him that when Dilip Bhowmik tortured Iti, Bapi was also there. She also did not state to him that previous night when Dilip and Bapi went near the house of Sankar Acharjee he was seated in the steering and Iti in the adjacent seat, and Bapi got down from the vehicle and called Sankar Acharjee and his son. He also did not state to him that on the following morning, his maternal uncle informed about the recovery of the dead body of his mother. Other suggestions however he denied. 10. From the reading of the evidentiary materials placed in the trial, it appears that there are some materials which generate strong suspicion but the involvement of the appellant in any offence could not be established by the prosecution. Apart that, the prosecution has miserably failed to establish that the death of the deceased, Iti Acharjee was homicidal in nature as the experts had categorically stated the cause of Asphyaxia could not ascertained by the forensic experts. There is no other witness. Absence of the external injury over the dead body has its own impact. As there is no direct evidence of her torture, the episode introduced by PW-3 and PW-4 about the torture on the deceased has been denied to have been stated to the Investigating Officer, has taken substance out from that evidence. There is a well settled scientific inference that there can be non-homicidal Asphyaxia. In absence of any evidence that Asphyaxia was homicidal in nature, this court is of the considered opinion that the conviction under Section 302 is wholly unjustified and unsustainable in law. Apart that there is no evidence that the appellant was instrumental in screening any evidence whatsoever. Thus, he cannot be convicted under Section 201 of the IPC. What has surfaced is that the investigation has been carried out in a slip-shod manner and so many leads were not even investigated to unearth the truth in respect of the death of Iti Acharjee. Thus, he cannot be convicted under Section 201 of the IPC. What has surfaced is that the investigation has been carried out in a slip-shod manner and so many leads were not even investigated to unearth the truth in respect of the death of Iti Acharjee. Death of Iti Acharjee still remains shrouded by mystery as the investigation was not scrupulously carried out to establish the cause of her death. 11. This court, in such a situation, cannot hold the findings of conviction as sustainable in law. Some circumstances however may generate strong suspicion against the appellant. Suspicion however strong, it may be cannot substitute the requirement of the legal evidence. 12. Having held so, the appellant is entitled to get the benefit of doubt and the impugned judgment and order is liable to be set aside. 13. Hence, the appellant is acquitted from the charge on benefit of doubt. Since the appellant is on bail, the surety is discharged from his obligation. 14. In the result, the appeal stands allowed. Send down the LCRs forthwith.