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2020 DIGILAW 83 (TRI)

Bishu v. State of Tripura

2020-06-26

ARINDAM LODH, S.TALAPATRA

body2020
JUDGMENT : Arindam Lodh, J. 1. This appeal is presented under Section 374 of Cr.P.C. against the impugned judgment and order of conviction and sentence dated 16.01.2017 and 20.01.2017 respectively passed by the learned Additional Session Judge, West Tripura, Agartala, in case No. S.T. (T-1) 156 of 2002, whereby and where under the appellant has been convicted under Section 302/34 of IPC and thereby sentenced him to suffer RI for life and to pay a fine of Rs. 10,000/- and in default to pay the fine to suffer Rigorous Imprisonment for a further period of one year. 2. Heard Ms. R. Purkayastha, learned counsel for the appellant and Mr. S. Debnath, learned Addl. PP appearing for the state-respondent. 3. The prosecution case, in a nutshell, is that on 01.05.2000 at about 10 a.m. in the morning while the informant and others were harvesting paddy in the paddy field with other labourers, at that time, Gopal Das Baishnab, S/O. late Haridas Baishnab and Sri Krishna Debnath, S/O. late Nikunja Debnath were sitting on the bank of the river Chichima. In the meantime three young tribal persons with arms appeared there as labourers and thereafter the said persons tried to kidnap the said Gopal Das Baishnab together with said Krishna Debnath and there was a scuffling between themselves but while they failed to kidnap, they suddenly opened fire aiming said Gopal Das Baishnab and Krishna Debnath and killed them on the spot. Upon receipt of the aforesaid written ejahar, FIR was registered under Jirania police station Case No. 67/2000 U/S. 302/34 of IPC read with section 27 of Arms Act against three unknown persons. 4. During investigation, the I.O. examined the witnesses and recorded their statements under section 161 Cr.P.C. He also visited the place of occurrence, arranged post-mortem examination over the dead bodies of the deceased and also seized some bloodstained earth and two Nos. of empties of used cartridges under a proper seizure list in presence of witnesses and on completion of investigation, I.O. submitted the charge sheet with regard to the alleged commission of offences under Section 302/34 of IPC and section 27 of the Arms Act against three accused persons namely, Bishu @ Bishrai @ Bishurai Debbarma, Thainya Debbarma and Rupchand Debbarma. Being committed, the learned Session Judge framed charges against only one accused, namely, Bishurai Debbarma. Being committed, the learned Session Judge framed charges against only one accused, namely, Bishurai Debbarma. No charge could be framed against other two accused persons as they were found to be absconded at all along. During trial the prosecution examined as many as 14 witnesses. On completion of recording of evidence, the accused was examined U/S. 313 of Cr.P.C., to which he strongly denied to allegations brought against him by the prosecution. 5. The learned trial court took up the following points for discussion and decision: (i) Whether the accused persons in furtherance of their common intention on 01.05.2000 at about 10 a.m. at East Noagaon near Chichima river under Jirania PS, West Tripura committed murder of Gopal Krishna Baishnab and Krishna Debnath by gunshot injury? (ii) Whether the accused persons on 01.05.2000 at about 10 a.m. were found in possession of sophisticated fire arms with intend to use the said arms for an unlawful purpose and to cause death of the aforesaid persons? 6. After hearing the arguments of both sides, learned trial court found the appellant guilty of committing offence and convicted and sentenced him as afore stated. But no charge U/S. 27 of the Arms Act could be proved by the prosecution against the accused person. 7. Being aggrieved by and dissatisfied with the said conviction and sentence, the accused appellant has preferred the instant appeal before this court. 8. Before entering into the controversy raised by the learned counsel for the parties, let us make a survey of the evidence and materials brought on record by the prosecution in order to reach a clear conclusion. 9. During trial prosecution in order to prove their case examined as many as 14 witnesses. Amongst them, the most important and relevant witnesses are PW 1, PW 2, PW 5, PW 6, PW 7, PW 8, PW 10, PW 11 and PW 14. 10. P.W. 1, Sri Gauranga Das Baishnab, is the informant and the brother of deceased Gopal Das Baishnab. He stated that on the fateful day, deceased Gopal Das Baishnab and Krishna Debnath and other labourers were in the southern side of East Noagoan on the bank of river Chichima and they were harvesting Paddy. At that time, three tribal persons had appeared there with arms and weapons and suddenly shot Gopal Das Baishbab and Krishna Debnath, who died on the spot. At that time, three tribal persons had appeared there with arms and weapons and suddenly shot Gopal Das Baishbab and Krishna Debnath, who died on the spot. Subsequently, he submitted his complaint with the O/C of Jirania Police station. P.W.1 further stated that he came to know from Nityananda Debnath that one of the accused person was Bisharai Debbarma and he further deposed that out of other two miscreants one was Rupchand Debbarma, but he could not say the name of the another accused. In cross-examination P.W.1 stated that he did not mention the name of the accused in the complaint petition. 11. P.W. 2, Nityananda Debnath, in his deposition state that on the day of the incident he was working in the paddy land of his deceased brother Krishna Debnath. At that time, three tribal persons came to the paddy land and started scuffling with Krishna Debnath and Gopal Das Baishnab. The tribal persons were trying to kidnap them and as a result, there were scuffling. Then they murdered them by firing bullets from their arms. He further stated that out of three assailants, he could indentify Bisharai Debbarma, and Rupchand Debbarma, since they were known to him before the incident. In cross-examination the P.W. 2 stated that he could not exactly say who fired bullets on the deceased persons. 12. P.W. 5, Dipak Debnath (eyewitness), in his deposition stated that on the date of the incident he was working on the paddy field. Suddenly he saw that 3 tribal persons were assaulting Gopal Das Baishnab @ Malu. They opened fire from their gun towards Malu and Krishna Debnath and as a result they died. He could identify the assailants as Bishurai Debbarma, Rupchand Debbarma and Thainya Debbarma, as they were known to him being the inhabitants of Bardhan Thakur para where he used to go for work in the paddy field near that area. In Cross-examination P.W. 5 stated that he could not exactly say regarding the weapon used by the extremists to kill the deceased. 13. In Cross-examination P.W. 5 stated that he could not exactly say regarding the weapon used by the extremists to kill the deceased. 13. P.W. 6, Sri Pradip Debnath, in his deposition stated that about two and half years ago while he and other persons were harvesting paddy near the bank of Sisima river, three tribal from Bardhaman Thakur para went to the P.O. and tried to kidnap Malu Baishnab (Gopal Das Baishnab) and Krishna Debnath, but, when they failed, they fired at them from their guns and as a result, they died. He further stated that he saw the incident from a distance of 1 kani. In cross examination he stated that after the incident he had started a grocery shop and Thainya Debbarma used to came to his shop and in that way he knew him. Before the incident Bishurai Debbarma was not known to him. 14. P.W. 7, Sri Jawaharlal Debnath, is also an eyewitness to the occurrence. In his deposition he stated that while he was harvesting at the paddy land near the Bank of Sisima river at that time three tribal extremists from Bardhaman thakur para went there and tried to kidnap them. He further stated that they gave a blow with lathi and Malu Baishnab fell down, then the extremists opened fire and Malu Baishnab died. Thereafter, they opened fire at Krishna Debnath, he also died on the spot. He further stated that he did not say to the police officer that the accused persons were known to him earlier to the incident. In cross examination he stated that he could not exactly say that whether Nityananda Debnath was present at the time of the incident. 15. P.W.8, Sri Rabindra Das Baishnab, in his deposition stated that three tribal extremists with gun in their hands had approached to Krishna Debnath and Gopal Das Baishnab. At first, they tried to kidnap Krishna and Gopal by dragging them and when they failed, they opened fire from their gun aiming at them and as a result, they died. He further stated that he knew the extremists, because they used to come to Mohanpur Market by crossing their paddy land. 16. At first, they tried to kidnap Krishna and Gopal by dragging them and when they failed, they opened fire from their gun aiming at them and as a result, they died. He further stated that he knew the extremists, because they used to come to Mohanpur Market by crossing their paddy land. 16. P.W.10, Sri Shanti Bhushan Debnath, stated that he was working on the paddy field, while he saw that three extremists trying to kidnap Gopal Das Baishnab, who tried to resist by catching hold of the guns of the extremists with his hands. They started forward to save Gopal Das Baishnab. At that time, one of the tribals struck on the head of Gopal Das Baishnab with a lathi from behind and at he fell down on the ground. Immediately one of the three tribal opened fire at him, as a result he died on the spot. He further deposed that he knew the accused persons before the incident as they used to come to the Keprampare market. In Cross-examination, he stated that accused Bishrai Debbarma opened fire at deceased persons. He further stated that one of the extremists struck on the head of Gopal Das Baishnab from behind with a lathi. But this statement was found absent when his attention was drawn to his statement recorded under section 161 Cr.P.C. 17. P.W.11 is the Medical officer. On examination he opined that injuries were inflicted upon the body by gunshot. The cause of death of the deceased was due to shock and haemorrhage and multiple grievous injuries in chest and ribs. The injuries were caused by gunshot. In cross examination P.W. 11 stated that he did not mention in the post mortem report whether the injuries were caused by gunshot or not, but he deposed that he suspected that the fracture injuries were caused by gunshot. 18. P.W.14, Sri Rajendra Dutta, I.O. of this case, stated that during investigation he visited the place of occurrence and prepared the hand sketch map and also seized some bloodstained earth and two Nos. 18. P.W.14, Sri Rajendra Dutta, I.O. of this case, stated that during investigation he visited the place of occurrence and prepared the hand sketch map and also seized some bloodstained earth and two Nos. of empties of used cartridges under a proper seizer list in presence of the witnesses and recorded the statements of the witnesses under Section 161 of Cr.P.C. The investigating officer also collected the post mortem report of the deceased person and upon the completion of investigation, the investigating officer being satisfied with regard to the alleged commission of offence submitted charge sheet against accused Bishurai @ Bishu Debbarma, Thainga Debbarma and Rupchand Debbarma under section 302/34 of IPC and section 27 of Arms Act showing the two accused Thainga Debbarma and Rupchand Debbarma as absconding. In cross-examination P.W.14 deposed that he did not send the empty cartridges for examination to the forensic Laboratory. He also did not send the bloodstained earth to the State Forensic Laboratory for ascertaining the existence of blood of any human being. 19. Ms. R. Purkayastha, learned counsel appearing for the appellant submitted that the participation of the appellant in the commission of the alleged offence are absolutely doubtful and on the basis of such doubtful evidences the appellant could not be legally convicted for the alleged offence. Learned counsel further submitted that there were 5 eyewitnesses to the incident, but in the FIR it is clearly mentioned that three unknown miscreants. So, it could be easily ascertained that the name of the appellant had been incorporated later on being afterthought. Learned counsel for the appellant had drawn the attention of the court to the statement of P.W. 14, i.e., the I.O. of this case, where in the cross-examination he deposed that no forensic report in connection with bloodstain has been collected by him. Ms. R. Purkayastha, learned counsel submitted that P.W. 11, i.e., the medical officer, in the post mortem report does not disclose the cause of death being by gunshot. Learned counsel further submitted that no eyewitnesses stated that they had seen the appellant firing at the deceased or carrying any gun. But the learned Trial court failed to consider the same and convicted the appellant only on the basis of suspicion and the prosecution had miserably failed to prove the identification of the appellant beyond reasonable doubt. 20. Learned counsel further submitted that no eyewitnesses stated that they had seen the appellant firing at the deceased or carrying any gun. But the learned Trial court failed to consider the same and convicted the appellant only on the basis of suspicion and the prosecution had miserably failed to prove the identification of the appellant beyond reasonable doubt. 20. By considering the evidence and materials brought on record, it can be inferred that in this case the presence of the accused at the place of occurrence has been confirmed by the five eyewitnesses. P.W.10 in his cross-examination stated that accused Bishrai Debbarma opened fire at deceased persons. Defence fails to shake the credibility of this witness. 21. In Gopi Nath @ Jhallar Vs. State of U.P., reported in (2001) 6 SCC 620 , the Apex Court observed as under: "8... Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he done himself, for the whole of criminal action be it that ii was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore has been held to be attracted even where the acts committed by the different confederates ate different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or pre-arranged plan or manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the cases and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the absence of the common intention, the criminal liability of a member of the group might differ according to the mode of the individual's participation in the act. Common intention means that each member of the group is aware of the act to be committed." 22. In Virendra singh Vs. Common intention means that each member of the group is aware of the act to be committed." 22. In Virendra singh Vs. State of Madhya Pradesh, reported in 2010 (8) SC 319, the Apex Court observed that: "Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to joint liability for an offence there must be a prearrange and pre-meditated concert between the accused person for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order to apply section 34 of IPC it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact the section intended to cover a case where a number of persons who acted together and on the fact of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction between a charge for an offence under a particular Section and a charge under that section read with section 34." 23. In the State of Rajasthan Vs. Nathu, reported in (2003) 5 SCC 537 , the Apex Court held that once an unlawful assembly has come into existence and the said assembly continued to share the common object each member of the assembly become vicariously liable for the criminal act committed by a member of the unlawful assembly in prosecution of the common object of the unlawful assembly. In this case the fact that the accused was a member of unlawful assembly and his presence at the place of occurrence not been disputed, and it appears to be sufficient to hold him guilty for the alleged offence. 24. In this case the fact that the accused was a member of unlawful assembly and his presence at the place of occurrence not been disputed, and it appears to be sufficient to hold him guilty for the alleged offence. 24. Though the medical officer, i.e., P.W. 11, did not mention in the post mortem report that the injuries were caused by gunshot and not even in the Autopsy Surgeon's report he did not mention the name of the weapon by which injuries were caused, but, he suspects that the fracture injuries were caused by gunshot and there is no conflict between ocular and medical evidence regarding the gunshot injuries found over the dead bodies of the deceased persons. 25. In Solanki Chimanbhai Ukabhai V. State of Gujarat, reported in AIR 1983 SC 484 , the supreme Court observed that "ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit eyewitness. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and medical evidence." 26. In State of Haryana Vs. Bhagirath & Ors., reported in (1999) 5 SCC 96 , the Apex Court held as follows:- "The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probability. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinion given by persons who are experts in the particular subject." 27. By considering the judgments of the Apex court it may be said that ocular evidence prevails over the expert evidence. In the instant case as many as 5(five) eyewitnesses confirm that injuries were caused by gunshot and the medical officer also in his report suspects that the injuries were caused due to gunshot. Where the eyewitnesses account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. More so, ocular versions of the eyewitnesses further revealed that all the three assailants had also inflicted blows upon the deceased by lathi. 28. The deposition of the eyewitnesses should not be ignored in arriving at a decision, where almost all the eyewitnesses confirm the presence and participation of the accused in the commission of crime. The eyewitnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the deposition of eyewitnesses, the same required to be ignored by the court, where the eyewitnesses account is found credible and trustworthy. Further, the testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. If the benefit of minor discrepancies is given to the accused, then there will be acquittal in almost all criminal cases. 29. By giving our thoughtful consideration to the evidence and materials on record this court is of the view that there is no reason to disbelieve the testimony of the eyewitnesses to the occurrence and there is also no scope to draw any other inference other than the guilty of the accused appellant to the crime. The learned Trial court did not commit any error while convicting and sentencing the accused appellant under section 302/34 IPC. Accordingly, the judgment and order of conviction and sentence dated 16.01.2017 and 20.01.2017 respectively passed by the learned Additional Session Judge, West Tripura, Agartala in case No. S.T. (T-1) 156 of 2002 is upheld. 30. Consequently, this appeal fails and the same is dismissed. Return the lower court record immediately.