RAJKUMAR CHOUDHURY Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The judgment dated 30-6-1998 by Additional Sessions Judge, West Tripura, Agartala in ST 78 (WT/A/1995) convicting the appellant Raj Kumar Choudhury, under S, 304-Part II of the Indian Penal Code and sentencing him to rigorous imprisonment for six years and a fine of Rs. 5000/-, in default further imprisonment for one year, stands impugned in the present criminal appeal.

(2.) The deceased Nimai Choudhury was the uncle (father's brother) of the appellant. They lived within the same house in separate huts. But they had a dispute over the boundary of their respective shares of the homestead land and all attempts by the well wishers to amicably settle the dispute having failed, the relation between them continued to be strained. Frequently, they indulged in quarrels over boundary fencing. Pyari Mohan Choudhury, one of the brothers of the deceased and his son Kebal Choudhury, who also lived in adjacent huts supported the appellant in the said dispute. According to the prosecution version, on 27-2-94 the appellant along with Pyari Mohan and Kebal stormed into the hut of the deceased when he was seeing a TV programme comfortably after return from work and evening meal. Smt. Fulmalati Choudhury (PW 1), the wife of the deceased, and her daughters Sagarika Choudhury (PW 3-A child witness) and Dipti Choudhury (PW 10) were present when the accused persons had dragged the deceased out of his hut and assaulted by lathi and spade in the courtyard near the kitchen of the deceased. The deceased was thus done to death on the spot by the fatal injuries on his head. When the wife and the daughters of the deceased raised alarm and started to cry, the assailants allegedly attacked the elder daughter and dragged her out of the house. The other witnesses including Hari Mohan Choudhury (PW 7), one of the brothers of the deceased, rushed to the place of occurrence and learnt from the wife and the daughters of deceased about the details of the episode. Hari Mohan stated that he returned from work at 6 p.m. and learnt that in the fight Nimai was killed by Raj Kumar. The other independent witness who claimed to have seen the occurrence is Kamal Sarkar (PW 6). After getting the information that altercation was going on between Nimai and Raj Kumar he went to their house and saw Nimai hitting Raj Kumar by a spade and Raj Kumar hitting Nimai by a piece of firewood. He snatched away the firewood from Raj Kumar.

(3.) On the basis of the materials collected during investigation the learned trial Court framed charge against Pyari Mohan, Kebal and Raj Kumar under Sections 448 and 302 read with Section 34 of the Indian Penal Code. During a full dressed trial the prosecution examined 19 witnesses and relied on several exhibited documents including FIR, inquest report, post mortem report and certain exhibited portion of the statement recorded under Section 161, Cr. P. C. As seen above, the wife and two daughters of the deceased had seen the occurrence when the other witness Kamal Sarkar (PW 6) reached there when the deceased and the appellant were locked in a fight. The witness was confronted with his statement recorded under Section 161, Cr. P. C. where he stated that Raj Kumar and Kebal were hitting the deceased by lathi. The deceased was also hitting Raj Kumar by a spade. This contradiction alone makes it difficult to believe that the deceased was also hitting Raj Kumar, the appellant herein, by a spade as the same gets no support from other evidence on record. In his examination-in-chief he however, stated that Raj Kumar was hitting the deceased by a piece of firewood and this is exactly the defence story which was come in the statement of the appellant recorded under S. 313, Cr. P. C. In that statement appellant, however, claimed that he had to attack his uncle by a piece of firewood in self-defence when the deceased had attacked him by a spade. Absence of any statement that the deceased attacked the appellant by a spade in the previous statement of P. W. 6 would lead to the conclusion that he tried to develop the story in his deposition before the learned trial Court for supporting the defence of the appellant. The prosecution had no alternative but to declare him hostile and confront him with his previous statement.