KRISHNA KANTA ROY Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order dated 26-4-2005 passed by the learned Sessions Judge, West Tripura, Agartala in S.T. (WT/A) No. 5 of 2004 convicting the Appellant under Section 302, IPC and sentencing him to undergo rigorous imprisonment for life with a fine of Rs. 5,000/-.

(2.) The case of the prosecution is that on the day before Dashami of Durga Puja of the year 2002, while the village youths of Bin Para including the deceased Jogesh Bin under West Agartala Police Station were dancing at the puja pandal, the deceased had a quarrel with one Mukul Bin. On hearing this, his mother, Kamala Bin (P.W. 4), rushed to the Puja pandal and sent for her other son, namely, Manoj to intervene. The said Manoj accordingly went there and brought the deceased home. When they were returning home, the said Mukul Bin came near the gate of their house and threatened him saying that he would meet him the next day. On the following night also, the dancing at the pandal continued and at about 8 p.m. on the same night, the Appellant whispered something to the deceased whereafter the Appellant and the deceased left the Puja pandal and proceeded towards south. After about 20 minutes, P.W. 4 heard the cry of the deceased whereupon she rushed towards south i.e. the direction from where she heard the cry and found the deceased lying in the house of Parshuram with profused bleeding. P.W. 4 then held the deceased and asked him the person who caused his injuries, to which the deceased told her that the said Mukul Bin and the Appellant had inflicted the injuries. The deceased was then taken to the hospital by an autorickshaw and on the way he was uttering in delirium "Krishna, don't assault me!". However, by the time he was examined by the Medical Officer, he had already succumbed to his injuries. On the following morning, Pradip Bin, the brother of the deceased lodged an ejahar with the Agartala Police Station, which accordingly registered West Agartala P.S. Case No. 212/02 Under Section 302, IPC. The West Agartala Police Station investigated the case and, on completion of the investigation, charge-sheeted the Appellant and the said Mukul Bin for commission of the offence punishable under Section 302 read with Section 34, IPC. As the case is exclusively triable by the Sessions Court, the same was committed to the learned Sessions Judge for trial. On the basis of the charge-sheet and after hearing the counsel for the defence and the prosecution, the learned Sessions Judge framed the charge against the Appellant and the said Mukul Bin under Section 302 read with Section 34, IPC. In the course of trial, the prosecution examined twelve witnesses to bring home the charges against the Appellant and the said Mukul Bin. The case of the defense was that of total denial. On completion of the trial and after examining the accused under Section 313, Cr. PC. the trial Court convicted the Appellant under Section 302, IPC and sentenced him accordingly. However, the trial Court acquitted the said Mukul Bin for lack of evidence. Aggrieved by the impugned judgment of conviction and sentence, this appeal has been preferred by the Appellant.

(3.) Before proceeding further and for better appreciation of the rival contentions of the counsel appearing for the rival parties, we proceed to record the salient features of the findings of the trial Court. The trial Court rejected the dying declaration of the deceased made to P.W. 4 in the presence of P.Ws. 6 and 7 implicating the Appellant and the non-Appellant for the crime on the ground that the same was never mentioned by her to P.W. 8 before he lodged the ejahar with the police the following day. According to the trial, nondisclosure of the names of assailants of the deceased in the FIR lodged by P.W. 8, who is none other than the brother of the deceased, the following day clearly indicated that the deceased did not disclose the name of his assailants to his mother (P.W. 4). However, the trial Court recorded the finding that the version of P.W. 4, P.W. 6 and P.W. 7 that the Appellant came to the puja pandal on the night of the incident while the deceased and others were dancing and took the deceased from the puja pandal towards south had remained un-rebutted and unshaken in spite of exhaustive cross-examination of these witnesses. The trial Court then took the view that since it had been clinchingly established from the evidence of these witnesses that it was the Appellant who took the deceased out of the puja pandal towards (sic) and since the deceased was found lying injured within 20 minutes thereafter, the burden was upon the Appellant to explain as to how the deceased had sustained those injuries. The trial Court also took note of the evidence of P.Ws. 6 and 7, who had unequivocally stated that while the deceased was being taken to the hospital in an auto-rickshaw, he on the way uttered in delirium that "Krishna, don't assault me, I will die!" and of the evidence of the I.O. of the case (P.W. 12) that just after the occurrence, he had raided the house of the Appellant but had found him absconding which, according to it, was a relevant factor under Section 8 of the Evidence Act and had the effect of destroying the plea of his innocence. Thus, from the evidence so established that the Appellant took the deceased just 20 minutes before the incident and the witnesses heard the cry of the deceased 20 minutes thereafter and was found lying injured, that the Appellant had failed to explain as to how the deceased sustained the injuries and that the Appellant was found absconding immediately after the incident the trial Court concluded that the only presumption which could be drawn was that it was the Appellant who murdered the deceased. This was the basis of the conviction of the Appellant.