D.N. Chowdhury, J.
1. This appeal is directed against the judgment and order dated 27-2-93 passed by the learned Additional Sessions Judge, West Tripura, Agartala, in Sessions Trial No. 14 (W. T. /K) 1991, convicting the accused under Section 302 read with Section 34 of the I.P.C. and sentencing them to undergo life imprisonment. In addition convicted the accused under Section 201, I.P.C. and sentenced them to undergo imprisonment for two years. Further, two of the appellants Shri Dhanu Debnath and Manoranjan Debnath were also convicted under Section 326, I.P.C. and sentenced to undergo imprisonment for four years. Hence this appeal.
2. The prosecution case started on the basis of an F.I.R. orally made before the Officer-in-Charge, Kalyanpur Police Station by Shri Surendra Debnath, P.W. 9 which was registered as Kalyanpur P. S. Case No. 7(5)89 under Sections 148/149/341/326/302/201, I.P.C. In the FIR it was alleged that on 19-5-89 at about 10 O'clock while the informant Shri Surendera Debnath, P.W. 9 along with P.W. 7, P.W. 8 and his son Girindra Debnath, the deceased were returning home after marketing from Chebri market via Sonachara 'Pool paar' and reached near Rajendra Debnath's (P.W.2) mango grave at about 10.30 in the night, Dhanu Debnath, Manu Debnath, Gyan Debnath, Nripendra Debnath, Gopendra Debnath, Lalmohan Debnath, Nitai Debnath, Narayan Debnath, Gobinda Debnath and other 20/25 people of their village obstructed them with lathi, spear (ballam), dao, held dao at their throat and forbade to shout. They hit his companion Bipin Debnath with lathi, spear (ballam) and injured him. At that time they hit his son Girindra Debnath with lathi and dealt piercing blows (ghai) upon him with the spear (ballam), killed him and concealed the dead body elsewhere in the jungle. They said to them to escape. Going home, they informed Sankar Sukladas and others of the para about the incident. Later in the night after receiving the news, Chairman of the Village, Ramesh Goswami, P.W. 1 and others took Bipin along with Narendra Debnath and his mother Monmohani Debnath to own house. On 20-5-89 i.e. the date of filing the F.I.R. they admitted Bipin to the Khowai Hospital. The people of the locality and the relatives searched for Girindra's Crops at the spot of incident but could not find it.
3. On the basis of the said ejahar Kalyanpur P. S. Case No. 7(5) 89 was registered. Police charge-sheeted all the 10 accused named in the F.I.R. On committal the learned Addl. Sessions Judge, West Tripura, Agartala framed charges against all the accused persons under Section 302 read with Section 34, IPC and also under Section 201 of the IPC as well as under Section 326 of the IPC. The learned Addl. Sessions Judge in addition also framed charges against Netai Debnath under Section 302 read with Section 34, IPC, 201/ 326, IPC separately .He framed first charge against 9 accused. Netai was charged separately. During trial the prosecution examined as many as 14 witnesses.
4. P.W. 1 Shri Ramesh Goswami in his deposition stated that on 19-5-89 at about 12 p.m. Brajendra Debnath came to the Kali Mandap and informed that there was disturbance on the way and he was requested to go to the place of occurrence on the Sonachhara road. He was in the Kali Mandap at that time in connection with a Puja. He along with other villagers at once proceeded to the place of occurrence but found none there. On search he found Bipin Debnath in the cow-shed of Rajendra Debnath where he had taken shelter. He was unconscious and had injuries on his head and other parts of the body. He could not tell them the facts of the occurrence. They informed his wife and sons who came there after sometime. Then they sent Bipin Debnath to his house. Later he learnt that the dead body of Girindra Debnath had been discovered. At this stage the witness was declared hostile and cross-examined. He was confronted with his earlier statement made under Section 161 of Cr.P.C. The witness in his cross-examination stated that on 20-5-89 he went to the place of occurrence along with the Police Officer. In his presence the Police Officer seized one old umbrella, four blood-stained lathis and some blood-stained soil. Four lathis were found at a distance of 300 cubits in the jungle from the place of occurrence. Other articles were found in the same place. The witness identified the lathis and the old umbrella and the blood stained earth and admitted his signature in the seizure list. In the cross-examination of the defence this witness narrated about the topography as follows :-
After going 2 furlongs towards south from the turning point, the road bifurcates there. One part of the road goes towards south west and then turns towards south climbing up tillas to meet the house of Girindra Debnath. In the way there are jungles and houses of other people. From the point of bifurcation, the other part of the road runs towards south and at a distance of 1 k.m. is a fruit garden owned by Brajendra Debnath. Rajendra Debnath, and Promode Debnath. Thereafter the road further runs towards south towards the house of Kamini Debnath. Before the house of Kamini Debnath there is a Asram. Then the road again bifurcates. The P.W.D. road has run through this garden. In the orchard there are different fruit bearing trees. The orchard runs from south to north and it is 400 cubits in length and 150/200 cubits in breadth. It is an old orchard.
This witness further stated that the place of seizure where from the articles were seized is at a distance of 500/600 cubits from the alleged place of occurrence. Inside the orchard the place is shaddy due to trees. The sun rays are not sufficiently available due to shades of the trees.
5. P.W. 2 Shri Rajendra Debnath in his deposition stated that on the night of occurrence he was in the Kali Bari and while he returned home about 11.30 p.m. he heard a groaning sound in their cowshed. To see the matter he along with his brother Brajendra and Abal Das went to the cow-shed with a hurricane and found Bipin Debnath lying there. He was making the groaning sound. He had bleeding injuries on his body. He asked him what happened but he could not answer. Later also he did not tell him anything. He sent information to the Bipin's house. The wife and son of Bipin came to their house and took him with the help of others. Later he learnt that Girindra has been killed. He did not know who killed Girindra. Bipin was admitted into the Knowai hospital. He knew Surendra Debnath and Nani Gopal Das. They also did not tell him about the occurrence. On the following day they searched for the dead body of Girindra but did not get it. On the following day Police Officer came and in his presence seized 4 blood stained lathis, some blood stained soil and one umbrella which were lying in the jungle. At this stage the witness was declared hostile and was cross-examined by the prosecution. The witness was confronted with his earlier statement made under Section 161 of Cr.P.C. In cross-examination by the defence this witness stated that he knew Chebri market. The P.W.D. road bifurcates before meeting orchard. The road which passes through the orchard by the side of his house is not used by the deceased, his father Bipin Debnath, Surendra Debnath or Nani Gopal Das. The orchard is on both sides of the road. Inside the orchard it is dark even in day time. He further stated that it is not a fact that he did not find Bipin Debnath in their cow-shed.
6. P.W. 3 Dr. Ajit Kar was posted as Medical Officer in Kalyanpur Primary Health Centre on 24-5-89 who conducted post mortem examination of the dead body of Girindra Debnath. In his deposition this witness stated that externally he found the right upper bone fractured. Right orbital bone was also fractured. Right frontal bone was also fractured and compressed. There was bruise on the vental aspect of the right arm measuring 6' in length. There was another bruise on the dorsal aspect on the right and left scapula. There was bruise on the right and left of the renal angles. In his opinion the death was caused due to shock and haemorrhage caused by the aforesaid injuries which were homicidal in nature. The injuries fracturing the bones were caused by blunt, hard and heavy substance. Such injuries may be caused by weapons like lathis as M.O.I. He proved the post mortem report, Ext. P/5 and Ext. P/5/1 was his signature. In cross-examination he stated that he has not stated in the post mortem report as to the person or the source where from he derived the information regarding the name, age and other particulars of the dead body and also who identified the dead body. The injuries described in the report may be caused by any motor accident. Besides lathi, other substances may also cause such injuries. He further stated that he did not mention the age of the injuries. He also did not mention the time of death. There was no column for all these observations. He had done the post mortem examination with a helper. He made the observations and the result of the examination then and there. Other particulars and formalities like mentioning of the case number have been entered in later.
7. P.W. 4, Shri Jogesh Sarkar was posted as Home Guard in Kalyanpur P.S. on 24-5-89. In his deposition he stated that on that day he accompanied the police officer of that P. S. to a place towards east from the Chebri bridge and discovered a dead body there belonging to some Debnath, whose full name he did not remember. The police officer prepared Inquest report of the dead body in his presence and he put his signature as a witness. He identified his signature on the suratal report which is marked as Ext. P-6. He along with Biswanath Paul took the dead body to Kalyanpur P.H.C. as per instruction of the police officer for the purpose of post mortem examination and handed over the dead body to the medical officer and identified it to the M. O. The relatives of the dead body were also present there.
In cross-examination this witness stated that he was given command certificate by the police officer. He could not say whether it was in the record. The place where the dead body was found was called Barai gota on the bank of the river Chebri. The dead body was found inside a gunny bag and it was with 21 Nos. of bricks, so he could not float up.
8. P.W. 5, Shri Santosh Ghosh was the photographer who took snaps of the dead body.
9. P.W. 6, Shri Narendra Debnath is basically a seizure witness who was present while articles Ext. M. O. 1,2 and 3 were seized.
In cross-examination this witness stated that his house was by the side of the P.W.D. road at Sonachhari after crossing the Samru Chhara bridge. After Samru chhara bridge the Garopara village path had started from the P.W.D. road towards south. His house was after crossing that meeting point. The house of Surendra Debnath was by the side of the Garo para village path. After crossing his house another village path has started from the P.W.D. road and gone towards right by the side of which was the house of Bipin Debnath and deceased. The house of Ramesh Goswami was by the side of the P.W.D. road after crossing that meeting point of the village path. In the night of occurrence at about 12 p.m. Shri Goswami and others went to a place near the house of Rajendra Debnath and he was told that there was disturbance and cries were heard. Rajendra called them and went to his house and in his cow shed they found Bipin Debnath. Bipin was lying unconscious. He could not speak. They sent information to his house. On the following morning Bipin was sent to the hospital. When he was being taken to the hospital he asked Bipin Debnath who were responsible for beating him. But he could not speak and waved his hand requesting him not to ask him any question. The seized articles were found in a jungle near the Asram, about 200/300 cubits from the house of Rajendra Debnath.
10. P.W. 7, Shri Nani Gopal Sukladas in his deposition stated that on 19-5-89 at about 10 p.m. he along with Bipin Debnath, Girindra Debnath, Surendra Debnath were returning home from Chebri market. When they reached near the house of Rajendra Debnath, at a distance of 80/100 cubits from his house on the P.W.D. road, suddenly five persons armed with lathi came from the side of the house of Rajendra Debnath. Another five persons armed with lathi came from their front side. Among them Bipin Debnath was walking first. Thereafter was Girindra followed by Surendra and then himself. It was moon-lit night and there was no tree near the place. The orchard was a bit little away. The ten persons suddenly started beating Girindra. He was struck on his head and other parts of his body. With bleeding injuries he fell on the ground with a cry 'Mago'. His father Bipin tried to save his son but was beaten with lathi by the accused persons. He was also beaten on his head and other parts. The assailants threatened him that they would kill him if he dared to depose against them. Out of ten persons he could identify four persons who had beaten Girindra to death in his presence. He also stated their full names. Witness volunteers - He did not know whether he would be able to return home as the accused persons threatened him day before yesterday in his residence and also in the Court compound that dire consequence will follow if he deposes against them. The witness identified the four accused persons in the dock. In the following morning he learnt that Bipin Debnath was found in the cow shed of Rejendra Debnath and the dead body of Girindra could not be traced out. In the following morning he along with others had taken Bipin in the hospital. After five days Girindra's dead body was found in a river near Chebri.
This witness was cross-examined at length. In his deposition he stated that they were walking keeping a distance of 2 1/2 cubits from each other approximately. He felt like fleeing away from the place of occurrence when the attack was launched but he was stricken with fear. He stated to I. O. that the night was moon-lit and there were no trees near the place of occurrence and that he recognised the accused persons in the moonlight. The witness was thereafter confronted with the statement made under Section 161 Cr.P.C. He stated in cross-examination that he had no discussion with the family members of the deceased after the occurrence on the following day and they also did not tell him anything about the occurrence. He further stated that he. could recognise only four accused persons and there were other accused persons who were inside the orchard and he could not identify them due to distance and shades of trees. In the place of occurrence the other accused persons did not come except the four persons named above.
11. Shri Bipin Debnath, the father of the deceased was examined as P.W. 8. This witness in his deposition stated that Manu Debnath and Dhanu Debnath used to deal in liquor and his son opposed them. As a result enmity between them developed. On the date of occurrence in the month of Jyaistha he along with deceased son Girindra, Nani Gopal Sukladas and Surendra Debnath together were returning home from Chebri market along the P.W.D. road. When they reached near the house of Aditya Debnath, four accused persons namely Manu Debnath, Dhanu Debnath, Lal Mohan Debnath and Gyan Debnath suddenly came on the P.W.D. road and attacked his son Girindra. All the four accused persons started beating him. He tried to save his son but the accused persons assaulted him also. He was hurt on his head by Manu Debnath and Dhanu struck him on the right side of his forehead by a dao. He sustained bleeding injuries. His son was killed by the accused persons who then dragged away the dead body towards the jungle. The night was moon-lit and there was no tree at the place of occurrence and he could recognise the accused persons. In fear he took shelter into the cowshed of Rajendra Debnath. Ramesh Goswami another villager found him in the cowshed and sent him to his house. Then he was admitted in the Khowai hospital in the following morning. He regained senses in the hospital at about 4 p.m. when he stated about the occurrence to his son Narendra and his wife. He was in the hospital for 6/7 days. P.W. 8 in cross-examination stated that he was hard of hearing. His vision was also not clear. His vision was indistinct. The questions had to be put very loudly. He also did not remember everything. He could not say the number of market day every week in the Chebri market. He stated that the day of occurrence was Friday, though he could not say whether it was a market day. Thereafter he was asked about his purchase of articles and he stated that he carried bags and baskets for carrying commodities from the market. He further stated that his eldest son was a police officer. His eyes were also covered with blood. Attack was sudden from all sides. His daughter was married to witness Surendra 5/7 days after the occurrence. He could not give the descriptions of dresses of the accused persons, nor the colour. Rajendra Debnath's house was on the north side of the P.W.D. road. The P.W.D. road has gone from west to east. He did not usually go by this road. The mango orchard had started at a distance of 15/20 cubits towards south from the southern boundary of Rajendra Debnath. The witness was confronted with his statement under Section 161 Cr.P.C. to show that he did not state in his deposition that the night of occurrence was not a moon-lit night.
12. P.W. 9, Shri Surendra Debnath in his deposition stated that on the date of occurrence at about 10 p.m. when they reached near the house of Rajendra Debnath at Sonachhara four persons being armed with lathis and other weapons suddenly attacked Girindra and started beating him. There were other six persons who were keeping a little distance from the place of occurrence. He could identify the four accused persons who had beaten and killed Girindra. It was moon-lit night and so he could identify them. He could also identify other six accused persons. The deceased cried and to save him his father came but he was also attacked and beaten. Accused Dhanu struck Bipin on the left side of his head by a dao and accused Manu Debnath had struck him by a lathi on his head. Girindra died on the spot. The accused persons had dragged the dead body inside the jungle. Bipin laid down on the ground with bleeding injuries. The accused persons before leaving the place, ordered them to immediately flee and threatened that they would kill them if they had dared to give any statement against them. About a week before the occurrence, Dhanu Debnath and Manu Debnath who were dealing with contraband liquor, had an encounter with the deceased who tried to oppose them in their deal with liquor. Since then they had enmity and after killing Girindra, the accused persons declared that they had taken their revenge. Being threatened by accused persons, he and Nani Gopal Sukladas left the place of occurrence. 4/5 days later Girindra's dead body was found near Chebri bridge.
In cross-examination the witness stated that he married the daughter of P.W. 8. On the dock when the witness was asked for reaching P.W.D. road from my house it is possible to go through the path of Garo bari. But there are other paths also to reach the P.W.D. road. While proceeding from his house on the right side is the house of Chandra Kumar Deb Barma. But it is at quite a distance from his house and in between this there are other houses. The witness deposed in his cross examination that he went to the market for shopping and he purchased various commodities though he did not remember all the items. In front of all one Bipin Deb Nath followed by Girindra Deb Nath, then himself and last of all Nani Gopal Namasudra. Bipin was 4/5 nals in front of Girindra. He was behind Girindra at a distance of one nal approximately. The witness stated that the mango orchard started at a distance of 7/8 nals from the house of Rajendra Deb Nath towards north. He mentioned in the ejahar that the occurrence took place when they reached near the house of Rajendra Deb Nath. The words 'near the house' were not in the ejahar, though the words 'near mango orchard' were there. From the place of occurrence he went to his house and on the following morning he took Bipin Deb Nath in the hospital. He went to the house of Bipin at about 7 a.m. He took his meal that night. He stated to I.0. both in his ejahar and the subsequent statement that he could identify the accused persons in the moonlight.
13. P.W. 10 Shri Biswanath Paul was posted as Constable in the Kalyanpur Police Station, who accompanied the O. C. of the P. S. to a place towards east from the Chebri bridge after getting information that one dead body had been found there. The witness stated that the dead body was floating near the bank of the river which was inside a gunny bag. The dead body was identified by the Police Officer as of Girindra Deb Nath of Santinagar. He was directed to bring the dead body to Kalyanpur Primary Health Centre for post mortem examination along with Home Guard Jogesh Sarkar. The dead body was post mortemed on the following day and till that time he was on guard of the dead body in the morgue. He identified the dead body to the Medical Officer and after the post mortem examination he handed over the dead body to the relatives of the deceased. He was given commend for this purpose by the police officer along with the dead body challan.
In cross-examination he slated that he submitted the commend certificate with the dead body challan to the O. C. after the post mortem examination was over. He could not say whether those documents are available in the record.
14. P.W. 11, Dr. Shyam Sundar Saha was the Medical Officer in the Khowai hospital on 20-5-89, who examined Bipin Deb Nath and found two head injuries sustained by him (1) One injury of slightly lacerated type measuring 7.5 cm. x 1 cm. x 1.5 cm. was on the left pariteal area of his scalp. Nature of injury was grievous. (2) The 2nd injury was also of slightly lacerated type measuring 5 cm. x 1 cm. x 1 cm. placed at upper aspect of frontal area of the scalp. This was also grievous in nature. He stated that the injuries were probably caused by lathi. He further stated that the injuries were possible by laties Ext. M.O. 1 and he prepared the injury report. But he did not submit the report to the I. O. as he had forgotten, though he later on submitted the same in the Court, Ext. P-7.
15. P.W. 12, is Shri Narendra Deb Nath, brother of the deceased. He stated in his deposition that on the night of occurrence he was in his house. At about 10.30 p.m. he was informed by Rajendra Deb Nath that his father being injured was lying in his cowshed. He along with his mother went to the house of Rajendra Deb Nath and with the help of others brought his injured father to their house. On the following morning he was taken to the hospital. On the day following the occurrence in the afternoon his father told him and his mother in the hospital about the occurrence. He stated that on the night of occurrence he along with -his deceased brother Girindra Deb Nath, Nani Gopal Sukla Das and Surendra Deb Nath were returning home from Chebri market. When they came near the house of Rajendra Deb Nath, the accused Manu Dhanu, Gyan and Lal Mohan suddenly appeared before them, attacked his brother Girindra and started beating him by lathis and he was killed in the spot. His father tried to save him, but accused Dhanu had beaten him on the left side of his forehead and Manu had beaten him on the head. He also stated before him that the accused persons had dragged away the dead body of his brother inside the jungle. 4/5 days after the occurrence the dead body of his brother was found near the Chebri bridge.
In cross-examination the witness stated that he did not give any statement before the I.O. But later on he gave a statement to police in the hospital on the day when his father was admitted. The police came to the hospital at about 4 p.m. He stated to police that his father told them that the occurrence had taken place in the mango orchard. He further stated it was not a fact that he falsely stated that the occurrence had taken place on the P.W.D. road. The house of Brajendra was at a distance of 8/10 nals from the house of Brajendra towards north at the down of the Tilla. The house of Ramesh Goswami is at a distance of 10/12 nals towards north from the house of Brajendra on the western side of the P.W.D. road. The house of Aditya Deb Nath is at a distance of 50 nals towards north east from the house of Ramesh Goswami. The witness was confronted with his earlier statement made in cross-examination which is marked as Ext. D-2.
16. P.W. 13, Shri Shyama Prasad Biswas, I.O. was examined on 22-2-92. He narrated about the investigation and proved Ext. P-9 and Ext. P-9/1. He also proved the seized articles. The witness stated about the arrest of the accused. He stated that on 22-5-89 he again searched for the dead body and also the 10 accused persons but could not apprehend them. On 23-5-89 he again went to the hospital and after having discussion with the injured Bipin Deb Nath west to Sonachari area and searched for the dead body and the accused persons with no success. On 24-5-89 at 12.45 hours he received an information from the Khowai PS. that a dead body in a gunny bag had been found near Chebri bridge. This information was given to the O. C. Khowai P. S. by one Nagendra Deb Nath, S/O Bipin Deb Nath who also expressed his suspicion that the dead body inside the gunny bag might be of his deceased brother Girindra. Then he along with staff left for the place where the dead body was found. Reaching there they located the dead body in the Khowai river bed near Chebri bridge. The dead body was inside the gunny bag and the same was identified by Ajit Das and Manindra Das to be the dead body of Girindra Deb Nath. He prepared the Inquest report of the dead body in presence of witnesses which is marked as Ext. P-6/2. After Inquest report he sent the dead body to the Kalyanpur P.H.C. for post mortem examination. Constable Biswanath Paul and Home Guard Jogesh Sarkar of Kalyanpur P. S. were given command to take and guard the dead body to the P.H.C. till the P. M. examination was over. He prepared the dead body challan, Ext. P/10. On 25-3-89 P. M. examination was held in the Kalyanpur P.H.C. On 27-5-89 he received the copy of the P.M. examination report from the Medical Officer. The original post mortem report was received by him on 26-8-89 from S. P., Crime Section and he proved the same, Ext. P/5.
In cross-examination the witness stated that when the F.I.R. was lodged, they registered it and put the case number. He further stated that when any injured person appears or brings in the police station they record the F.I.R., register it and send him to the hospital for treatment. Seizure of blood stained earth helps in determining the place of occurrence. He did not visit the cowshed of Rajendra Deb Nath. Near the place of occurrence on the two sides of the road there were mango trees and no jungle as the road had gone with the mango trees on both sides. The witness admitted that there was no note in his diary regarding ownership or possession of the umbrella which was seized. The C. D. also did not contain any note that the seized lathis were blood stained though in the seizure list he mentioned that the lathis were blood stained. The witness stated that his diary contained charge sheet including the commend certificate. He was not sure whether the commend certificate was submitted with the charge sheet. The original commend certificate and its carbon copy were found in his case diary, but it was also not proved. He further stated that during search he did not get any grocery articles or any other belongings of the deceased, Girindra Deb Nath, Bipin Deb Nath, Nani Gopal Sukladas, Surendra Deb Nath in the place of occurrence. He did not make any investigation to know whether the aforesaid persons including the informant were really coming from the Chebri market after shopping as alleged in the F.I.R. He did not arrange for taking photographs of the place of occurrence or of the mango orchard. On two sides of the place of occurrence marked as 'X' in the map, mango orchard have been shown on both sides of the road. The witness stated that there was no note in his case 'diary as to the manner of despatching, the F.I.R. to the Court though he admitted the P. R. B. He did not know whether any brother of the deceased was serving in the police department. After 3/4 days of the occurrence the brother of the deceased who was an A.S.I. went to the police station and then he learnt about his identity. The witnesses denied the allegation that he removed the first F.I.R. He mentioned in the charge sheet that the deceased was an ill reputed person and he was in the habit of picking up quarrels with others without any reason.
17. On 22-2-92, P.W. 13 was examined and the learned trial Court fixed the case on 24-2-92 for further P.Ws. On 24-2-92 four accused persons were produced from Jail custody. The I. O. filed an application for time on the ground that he was engaged in some other official duties and the case was fixed on 26-2-92 for further P.Ws. On 26-2-92, the I. O. was cross-examined partly and the case was fixed for further cross-examination on 27-2-92. On 27-2-92 the learned Addl. Public Prosecutor submitted that they will not adduce further evidence. Hence, evidence of prosecution side was closed and the case was fixed on 3-3-92 for examination of the accused persons under Section 313 or Cr.P.C. On 3-3-92 all the accused persons were examined under Section 313 of Cr.P.C. and the case was fixed on 7-3-92 for argument. On 7-3-92 learned trial Court heard argument partly and fixed the case on 9-3-92 for further argument. On 9-3-92 the case was adjourned and fixed on 11-3-92 for further argument. On 11-3-92, the case was adjourned since the learned Presiding Judge was on leave. On 16-3-92, the learned counsel for the accused argued in part and an application was filed on behalf of the (in) custody accused persons for bail and the case was fixed on 17-3-92. On 17-3-92 for want of time argument was not heard and fixed the case on 20-3-92 for further argument. On 20-3-92 the argument of the learned counsel for the accused persons was heard in part fixing 23-3-92 for further argument. On 23-3-92 the argument of defence was not completed and the case was fixed on 24-3-92 for further argument. On 24-3-92 the five accused who were on bail were absent and a petition was made to allow them to be represented by their lawyer under Section 317 Cr.P. C. and the prayer was allowed. The prosecution also filed an application for allowing them to submit record by P.W. 3 Dr. Ajit Kar and they also prayed for adjournment of the case. Copy of the said petition was supplied to the defence and on 25-3-92 the learned trial Judge heard both sides on that petition and fixed 27-3-92 for orders. On 27-3-92 the learned trial Judge considered the application of the prosecution dated 24-3-92. The learned trial Judge in his order sheet noted as follows :-
The question remains whether the dead body found in the gunny bag was that of Girindra. No witness has been examined so far by the prosecution to establish that the dead body which was found near the river bed was that of Girindra Debnath. So, for the interest of this case and for a just decision, it is necessary to arrive at a decision whether the dead body found in the gunny bag was that of Girindra Debnath. The medical officer stated that two relatives of the deceased identified to him the dead body before post mortem examination was done. Post mortem report does not contain the names of the identifiers. The medical officer stated that he will be able to submit the record showing the names of the relatives who identified the dead body. There was no prayer from the prosecution to summon those relatives or to submit the record of the medical officer. However, I think that by exercising the powers under Section 311 Cr. P.C., I should allow the record to the placed in order to learn the names of the witnesses and then to summon them.
So, the petition of the prosecution is allowed. Fix 7-4-92 for submission of the record and for summoning of the witnesses.
From the order dated 7-4-92 of the learned trial Court it appears that the prosecution filed a post mortem report on 30-3-92 with a prayer to issue summons upon Shri Nagendra Debnath. The other side prayed some time for preferring a revision petition before the High Court. The learned trial Court allowed time and fixed the case on 21 -4-92 for orders. On 21 -4-92 the case was adjourned to 21-5-92. From the order dated 12-1-93 of the learned trial Court it appears that the High Court rejected the revision application by an order dated 11-12-92 holding that the impugned order was not revisable either under Section 397 Cr.P.C. or under Section 482 Cr.P.C. at that stage and accordingly, the learned Additional Public Prosecutor was asked to produce the witness Shri Nagendra Debnath on the next date fixing 19-1-93 for examination.
18. Shri Nagendra Debnath was examined as P.W. 14 on 19-1-93. In his deposition he stated that on 24-5-89 the dead body of Girindra Debnath was found near the river. When the dead body was recovered from the river he was present. After recovery he accompanied the dead body along with other police personnel and home guard to Kalyanpur P.H.C. They were told that post mortem of the dead body would be held on the following day. Accordingly, at about 1.30 p.m., the following day he went to the P.H.C. again and identified the dead body of his deceased brother before post mortem examination was done. He put his signature on a copy of the post mortem prescribed form before the post mortem was done as a token of their identification. He proved his signature which was marked as Ext. P-11. After the post mortem he received the dead body for cremation. He proved the dead body receipt which he issued with his signature on 25-5-89, Ext. P-12.
19. The learned trial Judge accordingly fixed the case on 22-1-93 for argument and parties argued the case and subsequently the learned trial Judge passed his judgment and order on 27-2-93.
20. Mr. M. K. Bhowmik, learned counsel appearing on behalf of the appellants in course of hearing submitted that the prosecution in the instant case failed to prove the case beyond reasonable doubt. Mr. Bhowmik confined his argument mainly about the identification of the accused persons. Learned counsel submitted that identification of the accused persons was not possible on a moon-lit night at 10 p.m. on the facts situation. Mr. Bhowmik particularly pointed out the evidence of witnesses including the evidence of the I/O. to show that the occurrence took place in mango orchard. Learned counsel further submitted that the corpse that was found in the gunny bag was that Girindra was not proved. He referred to the evidence of the witness and submitted same and except the evidence of P.W. 15 no other witness could identify the accused persons. Referring the judgment of the learned trial Court he submitted that the learned trial Court also relied upon the evidence of P.W. 14. Mr. Bhowmik further pointed out that the prosecution was unfair even in not furnishing the material documents relied upon by them, more particularly the documents relied upon by P.W. 14, namely Ext. P-11 and Ext. P-12. Learned counsel submitted that in the instant case the accused were seriously prejudiced in the trial. Mr. Bhowmik submitted that P.W. 14 was examined by the prosecution after completion of the examination of the accused persons under Section 313 Cr.P.C.
21. P.Ws. 7, 8 and 9 are the three material witnesses on which the prosecution case mainly rested. These three persons along with the deceased according to prosecution were returning from the Chebri market. Why all these three persons were returning at a time at 10.00 p.m. on the date of occurrence was never disclosed by the prosecution. The presence of P.W. 7 and P.W. 9 with P.W. 8 and the deceased was not clearly disclosed. The evidence of these three witnesses are at variance with the place of occurrence. P.W. 7 and P.W. 9 stated that the occurrence took place when they reached near the house of Rajendra Debnath (P.W. 2) at Sonachhara.
22. According to P.W. 8, the father of the deceased, he along with the deceased as well as P.W. 7 and P.W. 9 were returning home from Chebri market along the P.W.D. road and when they reached the house of Aditya Debnath (not examined) four accused persons suddenly came on the P.W.D. road and attacked his son and him. No explanation was given by the prosecution about this Aditya nor any indication came forth even as to whether Aditya and Rajendra were living contiguously. It was not the case of prosecution that Aditya and Rajendra were the same person. As mentioned earlier Aditya was not examined by the prosecution nor it made any endeavour to explain about the said contradiction.
23. Rajendra was examined by the prosecution as P.W. 2. Rajendra did not depose anything about the occurrence that took place in front of his house. According to the evidence of Rajendra at that time he was in Kalibari. There is no evidence that the inmates of Rajendra were not in home who could have unfolded about the occurrence. Even Rajendra was not reported by any of these P.Ws. that the occurrence took place in front of his house. Rajendra stated that he found P.W. 8 in his cowshed groaning with bleeding injury. P.W. 8 did not answer to the query of Rajendra as to how he received the injuries. Even later on neither P.W. 8 nor P.W. 7 and P.W. 9 uttered any word to him about the occurrence took place in front of his house. The witness stated in cross-examination that the P.W.D. road bifurcated before meeting the orchard. The road which passed through the orchard by the side of the house of P.W. 2 was not used by the deceased, his father (P.W. 8), P.W. 7 and P.W. 9. The orchard was on both sides of the road. The orchard remained in dark even at day time. P..W. 1 stated that the P.W.D. road ran through the garden. The orchard ran from south to north and it was 400 cubits in length and 150/200 cubits in breadth. The witness stated that the place of seizure where from the articles were sized was at a distance of 500/600 cubits from the alleged place of occurrence. Inside the orchard the place was shaddy due to trees. The sun rays were not sufficiently available due to shades of trees. The I/O (P.W. 13) also stated that near the place of occurrence on two sides of the road there were mango trees. But he denied about the existence of jungles. On the face of the evidence of P.W. 1 and P.W. 13 (I.O.) it is difficult to accept the evidence of P.W. 7, P.W. 8 and P.W. 9 that the occurrence. took place at a place where there were no tree without affecting the visibility. If the evidence of P.W. 1 and P.W. 2 are accepted then the place of occurrence was far away from the Rajendra's house accepting that the Rajendra and Aditya were the same person. Learned Public Prosecutor, however, pointed out that the evidence of P.W. 1 and P.W. 2 cannot be accepted on its face value more so when they were declared hostile by the prosecution.
24. A party calling its own witness may claim permission of the Court to cross-examination him under Section 154 of the Evidence Act and the Court is conferred with a discretion to permit the person. Undoubtedly it is a matter pertaining to judicial discretion. It is, however, a trite law that the contingent of cross-examination of the witness by the party calling him and allowed to be cross-examined does not make him unreliable witness so as to exclude his evidence from consideration altogether. The evidence remains admissible in trial and it can also be acted upon on scrutiny if the evidence is found to be reliable. It is also an accepted principle of law that before a Court exercises discretion in declaring a witness hostile there must be some material to show that the said witness has resiled from his earlier statement or is not speaking the truth or otherwise exhibited the element of hostility and has changed sides and shifted his loyalty to the adversary.
25. Besides, one can not overlook the fact that the prosecution did not make any endeavour to show the presence of P.Ws. 7, 8 and 9 as well as the deceased at the place of occurrence by any other evidence other than the oral testimony of the aforesaid P.Ws. 7, 8 and 9. According to the testimony of those witnesses, they went to Chebri market and carried those articles in bags.
Neither the bags nor the articles were seized nor any indication was given in any of the prosecution documents. On the own showing of the prosecution blood stained earth was neither seized nor it was sent for chemical examination. The command certificate by which dead body was sent for medical examination was not produced though the identity of the dead body was later on sought to be proved by P.W. 14 which shall be discussed in details later on.
26. According to P.W. 13 (I. O.) he received an information from the Khowai police station that a dead body in a gunny bag was found near the Chebri bridge. This information was given to the Officer-in-charge of Khowai Police Station by one Nagendra Deb Nath, son of Bipin Deb Nath, who also expressed his suspicion that the dead body inside the gunny bag might be of his deceased brother Girindra. On receipt of the said information he left for the place where the dead body was found and reaching there he located the dead body in the Khowai river bed near Chebri bridge. The dead body was in a gunny bag and it was identified by Ajit Das and Manindra Das to be the dead body of Girindra Deb Nath. Interestingly the O. C. Khowai police station, Ajit Das and Manindra Das to be the dead body of Girindra Deb Nath. Interestingly the O. C. Khowai police station, Ajit Das and Minindra Das were not examined by the prosecution, who could have unfolded the recovery of the dead body in the gunny bag as Girindra. There ought to have been an entry in the general diary of Khowai police station of such a serious event. But the prosecution did not make any endeavour to produce those materials before the Court even the gunny bag in which the deceased was alleged to be found was not seized nor proved in the case. The prosecution also did not indicate the manner of despatch of the F.I.R. to the Magistrate empowered to make cognizance of such of offence in conformity with Section 157 of the Cr.P.C.
27. The manner of recording the statement of the accused under Section 313 Cr. P.C. was not free from infirmity. The section provides for examination of the accused person by the Court for the purpose of enabling the accused person personally to explain every circumstances appearing in the evidence against him. The maxim is based on the principles of audi alterim partem as well as fair trial. The accused is to be heard not merely on what is proved against him, but on every circumstances appearing in evidence against him. The provision contained in Section 313 Cr.P.C. is wholesome and meaningful. The very object is to enable the accused to explain every circumstances appearing in the evidence against him; the intention of the provision is in the interest of justice and to assist the Court to decide the question of guilt of the accused. Examination under Section 313 Cr.P.C. is not an empty formality. In the instant case, the learned trial Court even did not examine the accused persons under Section 313 Cr.P.C. after examination of P.W. 14. None of the circumstances appearing from the evidence of P.W. 14 were put to the accused to explain. Out of four accused, one accused Shri Dhanu Deb Nath put L.T.I. on the statement under Section 313 Cr.P.C. Other accused Gyan Deb Nath and Manu Deb Nath put their signatures in Bengali and Lal Mohan Deb Nath put his signature in English. Admittedly the examination of the accused under Section 313 Cr.P.C. was made in English. The examination of the accused under Section 313 Cr.P.C. by the learned trial Court did not indicate that the statement of the witnesses were read over and explained to them. The examination under Section 313 Cr.P.C. only contained a report of the learned trial Judge showing that the above examination was taken in his presence and hearing and it contained a full and true account of the statement made by the accused.
28. Admittedly, P.W. 14 was examined by the learned trial Court after completion of the examination of the accused persons under Section 313 Cr.P.C. It is not clear how the learned trial Court came to a decision that the dead body was of Girindra Deb Nath on the basis of Ext. P-11 and Ext. P-12. Ext. P-11 is a copy of the post mortem report which was already proved as an exhibit in the Court and marked as Ext. P-5. P.W. 14 even did not indicate the source from which that copy was obtained by him. Interestingly the Ext. P-11 relied by the learned trial Court showed some new entries which were not available in Ext. P-5. How those entries could come in Ext. P-l1 is not explained by the prosecution. The I. O. was examined and no ground work for introducing Ext. P-11 was even made out in his evidence. Similarly Ext. P-11 contains a signature of Biswanath Paul, P.W. 10, but his signature was not proved. One more document was proved as Ext. P-12 by P.W. 14. The said document was not shown in the documents furnished to the accused under Section 173 Cr.P.C. In criminal trial all the documents those are sought to be relied by the prosecution arc to be furnished to the defence and that is the basic requirement of the criminal jurisprudence and enjoins in Section 173 Cr.P.C. The accused persons were kept in dark about these items till P.W. 14 was examined. The prosecution no doubt is to be given opportunity to prove its case as per law but not for filling lacuna without giving any opportunity to the accused. In a criminal trial the Court is concerned with the commission of the offence and to ascertain the guilt of the accused it is not for the Court to convict a person only on moral satisfaction. It is required to be proved beyond reasonable doubt. If there is any doubt that doubt must go in favour of the accused. If there are two interpretations, one in favour of the accused and the other in favour of the prosecution, as per our jurisdiction the doubt is to be resolved in favour of the accused. In a criminal trial the prosecution must prove its case establishing the evidence. A conviction can not be sustained only on the finding that the case may be proved. The distance between may be proved and must prove is to be covered by unimpeachable and cogent evidence. In the instant case, the occurrence took place at night. The prosecution witnesses stated that it was about 10 p.m. in a moon-lit night. From the evidence that has been disclosed does not convincingly show by the prosecution that it was possible to identify the accused on that moon-lit night. The evidence particularly of the place of occurrence did not establish beyond reasonable doubt that it was possible to identify the accused persons at the place of occurrence. The crime that was committed may be ghastly in nature but that by itself will not permit the Court in the absence of convincing evidence to rope the accused with the offence. In this connection it will be useful to rehearse the following cardinal principles of Criminal Jurisprudence :-
(1) The onus lies affirmatively on the prosecution to prove beyond reasonable doubt and the prosecution can not take advantage from the witness or falsity of defence persons while proving its case;
(2) In a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty;
(3) The onus of prosecution never shifts to the defence;
(4) If the explanation given by the accused is reasonable and probable though may not be convincing is to be accepted;
29. Taking into consideration the nature of the prosecution evidence, the conduct of the prosecution and the totality of the circumstances including the failure to give opportunity to the accused to explain the circumstances that was relied upon more particularly the circumstances narrated by P.W. 14 the conviction of the accused can not be sustained. It is a fundamental requirement of law in a criminal trial to invite the attention of the accused to every inculpable material to enable him to explain it. This is the basic requirement of a trial under Section 313 Cr.P.C. which also emanates from the philosophy of Article 21 of the Constitution. The nature of the evidence that was sought to be relied and the attending circumstances do not convince or sustaining the conviction of the accused.
30. For the reasons stated above, the convictions and sentences awarded to the accused-appellants can not be sustained, and accordingly, the impugned judgment and order passed by the learned Additional Sessions Judge, West Tripura, Agartala on 27-2-1993 in Sessions Trial No. 14 (W.T/K) 1991 convicting and sentencing the accused-appellants is set aside.
31. The appeal is accordingly allowed and the accused-appellants are acquitted. The surety is discharged from the bail bond.