LABA CHANDRA DUTTA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This Criminal Appeal (Jail) has been filed by Laba Chandra Dutta, Kusha Chandra Dutta and Pradip Dutta under Section 374(2) of the Criminal Procedure Code, 1973, against the judgment and order dated 15-12-97 of the Additional Sessions Judge, West Tripura, Agartala, in Sessions Trial No. 21 (WT/A) 93, convicting them under Section 302 read with Section 34, IPC and sentencing them to undergo life imprisonment and also fine of Rs. 2000/- each, in default to undergo further imprisonment for another six months.

(2.) The facts briefly are that on 13-6-84 at about 9.15 pm. Shri Sudhir Deb, the informant, lodged an oral complaint in the Police Station of Sidhai stating that at about 8.00 p.m. on 13-6-84 when he was in his office at Narendrapur Tea Garden, Shri Jiten Kanda, a labourer of the tea garden and a boy of about 5/6 years old came to his office room panting and told him that when he along with Haran Sarkar, brother of Nirmal Sarkar and the little boy who is the son of Nirmal Sarkar were returning to their house from market along a road in the tea garden, in the mid-way all of a sudden, Bhuttu Roy of Sidhai and four others jumped in front of them and started cutting blows on the person of Haran Sarkar and Nirmal Sarkar at Randum with sharp weapons but Jiten Kanda and the son of Nirmal Sarkar managed to save themselves and came to the garden office. Thereafter Shri Sudhir Deb and some people of the garden rushed along the western side road of the garden and on the mid-way they saw that Nirmal Sarkar was lying dead on the road with throat half cut and Nirmal Sarkar was lying with deep bleeding injuries. Thereafter the informant lifted Nirmal Sarkar to the garden jeep and rushed to the Police Station. The oral complaint of Shri Sudhir Deb was recorded by the Officer-in-Charge of Sidhai Police Station and registered as Sidhal PS Case No. 7(6) 84 under Sections 302/326/34, IPC. Nirmal Sarkar was sent to Mohanpur PHC but he succumbed to his injuries on the same night. Investigation was taken up by the Investigating Officer and a charge-sheet was filed under Sections 120-B/302/34, IPC, against Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta alias Paidya Dutta as well as Parimal alias Bhutto Roy showing him as absconder. The learned Chief Judicial Magistrate, West Tripura, Agartala, took cognizance of the offences and committed the case to the Court of the learned Sessions Judge, West Tripura, Agartala. The learned Sessions Judge, West Tripura, Agartala, thereafter, transferred the case to the Court of the Additional Sessions Judge, West Tripura, Agartala, who framed charges against the accused persons under Sections 120-B, 302/34, IPC. Before the learned Additional Sessions Judge, the aforesaid three accused persons pleaded not guilty. The prosecution examined as many as 23 witnesses and adduced documentary evidence such as the FIR, inquest report, seizure list, dead body challan and two post-mortem examination reports. The prosecution also produced some seized materials. No evidence was adduced on behalf of the defence. By the impugned judgment, the learned Additional Sessions Judge acquitted the three accused persons from the charge under Section 120-B, IPC but convicted them under Sections 302/34, IPC and sentenced them to undergo life imprisonment and fine of Rs. 2000/- each in default to undergo imprisonment for another six months.

(3.) At the hearing of this appeal, Mr. P. K. Biswas, learned counsel for the appellants, submitted that the conviction of the three accused persons was based on the evidence of only two eye-witnesses, namely Jiten Kanda (PW-21) and Hachan Sarkar (PW-22). But the FIR lodged by Shri Sudhir Deb (PW-1) would show that PW-21 had only identified Bhutto Roy of Sidhai having dealt the cutting dao blows on the person of Haran Sarkar and Nirmal Sarkar and he had not been able to identify the four other miscreants. Similarly, PW-22 who was 5/6 years old at the time of occurrence had also not been able to identify the miscreants other than Bhutto Roy of Sidhai at the time of incident. This was confirmed by the evidence of Shri Sudhir Deb (PW-1), the informant who in his deposition stated that Jiten Kanda and a boy aged about 5/6 years old came to his office running and panting and informed him that some miscreants caused serious injuries on the person of Nirmal Sarkar and Haran Sarkar by assaulting them by sharp cutting weapons on the road and they disclosed that among the miscreants they were able to recognise one Bhutto Roy. According to Mr. Biswas, if PWs-21 and 22 had really seen the accused persons Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta, dealing blows with sharp weapons on the person of Haran Sarkar and Nirmal Sarkar, they would have certainly disclosed this fact to PW-1 who would have accordingly informed the police and the names of the aforesaid three accused persons would have found place in the FIR dated 13-6-84. He further contended that the FIR as well as evidence of PW-1 would show that soon after the fact of assault on Haran Sarkar and Nirmal Sarkar was disclosed by PWs-21 and 22 to PW-1, the employees and labourers of the tea garden went along with PW-1 to the place of occurrence but none of the emplolyees or labourers of the tea garden or PW-1 have stated in their evidence that they were informed either by PW-21 or PW-22 that Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta gave cutting blows with sharp weapons on the person of Nirmal Sarkar or Haran Sarkar. Mr. Biswas vehemently argued that in a similar case in Gopal Deb v. State of Tripura, Criminal Appeal (S) Nos. 720-722/95, the Supreme Court having found that the two eye-witnesses who had seen the incident and seen the miscreants fled away from the place of occurrence did not divulged the names of the assailants to the informant who lodged the FIR and on this ground alone the Supreme Court held that the appellants were entitled to benefit of doubt. He further pointed out that in the said judgment, the Surpeme Court further observed that if really PW-12 had seen the incident and PW-2 had seen the miscreants running away immediately after the occurrence, it was expected in the fitness of the things that they would have divulged the names of the assailants. In the present case, according to Mr. Biswas, if PW-21 and PW-22 had seen the three accused persons Laba Chandra Dutta, Kusha Ranjan Dutta and Pradip Dutta dealing cutting blows with sharp weapons on the person of Nirmal Sarkar and Haran Sarkar, they would have divulged the names of aforesaid three accused persons to others if not to PW-1. But the evidence of other witnesses such as PW-2, P.W. 3 and PW-7 would show that the names of the aforesaid three accused persons had not been divulged to them by PW-21 and P.W. 22 and that only the name of Bhutto Roy had been disclosed. Mr. Biswas pointed out that it was only P.W. 4 and P.W. 11, the wives of the two victims, who implicated the three accused persons but they were not eye-witnesses to the occurrence. Mr. Biswas further submitted that the evidence of PW-21 was that he could identify Laba Chandra Dutta and Kusha Ranjan Dutta out of 5 or 6 miscreants who had dealt cutting blows with sharp weapons on the person of Nirmal Sarkar and Haran Sarkar with the help of light of a mashal cannot be relied on because in his statement under Section 164, Cr. PC, before the Magistrate on 19-6-84, he had not stated that he had identified the said accused persons with the help of a mashal. Mr. Biswas further pointed out that PW-22 was a minor aged about only 5/6 years old when the occurrence took place on 13-6-84. His evidence that Pradip Dutta dealt a cutting blow on his uncle Nirmal Sarkar and thereafter Laba Chandra Dutta and Kush Ranjan Dutta dealt dao blows on his father Haran Sarkar cannot be believed because he had not disclosed the names of the aforesaid three accused persons to PW-1 soon after the occurrence on 13-6-84. Mr. Biswas further pointed out that in his cross-examination, PW-22 has further stated that he had not known anybody named Bhutto Roy. This statement contradicted his earlier statement to PW-1 soon after the occurrence on 13-6-84 that Bhutto Roy of Sidhai had jumped in front of them and dealt cutting blows on the person of Nirmal Sarkar and Haran Sarkar. According to Mr. Biswas the only two eye-witnesses PWs-21 and 22 had sought to fabricate a false story after the FIR was lodged implicating the three accused persons and, therefore, the conviction should be set aside. He cited the decision of the Supreme Court in the case of Hate Singh v. State of MB, 1953 Cri LJ 1933 : (AIR 1953 SC 468) to the effect that where the facts which the prosecution themselves do not controvert in the witness-box are found to accord with the accused's story, the Court should not overlook it, by drawing presumptions against it.