P.C. Phukan, J.
1. This criminal appeal is directed against the judgment and order dated 5-2-97 passed by the learned Sessions Judge, South Tripura at Udaipur convicting the accused appellant under Sections 302/ 34, IPC and sentencing him thereunder to imprisonment for life in Sessions Case No. 44(ST/S)of 1996.
2. We have considered the records of the case, perused the impugned judgment and order, and heard Mr. D. Sarkar, learned counsel for the accused appellant and Mr. S. Das, learned Public Prosecutor, State of Tripura.
3. On 30-1-95 at about 9 p.m. the Officer-in-charge (PW. 9) of Manubazar P.S. received information about an incident at Srinagar bazar. He first went to Srinagar Primary Health Centre where he found the dead body of Pradip Ghose. He reached the place of occurrence at about 10-15 p.m. and received the FIR Ext. 1 from the deceased's father Sudhir Ghose (PW. 1). It is stated in the FIR that on 30-1-95 at about 6-30 p.m. the deceased came to Srinagar bazar where his younger son Subrata (PW. 8) saw that accused-appellant Ratan Debnath and other accused Santosh Debnath surrounded his brother Pradip, accused-appellant Ratan caught hold of him, accused Santosh Struck him with dao and lathi whereupon Pradip fell down on the ground and then accused-appellant Ratan started striking him with sharp weapon. Subrata (PW. 8) tried to save his brother, but the accused persons chased him.
4. On receipt of the FIR, PW. 9 started investigation. He prepared sketch map, Ext. 6 of the place of occurrence and index Ext. 7 thereof and seized a wooden lathi M.O. 1, one broken torch with three cells M.O. 3, and some blood stained earth by seizure list Ext. 2/1. P.W. 9 dame to the Primary Health Centre and held inquest (Report Ext. 8) of the dead body of the deceased and arranged for its post mortem examination. PW. 9 seized long pant, under wear banian, shirt, and Muflar etc. M.0.2 series of the deceased by seizure list Ext. 5. Returning to police station he filled up the FIR Form Ext. 9. He examined witnesses and raided the houses of the accused persons, but they were not available. He came to know that the accused Santosh escaped to Bangladesh. He, however, could arrest Benulal on 19-2-95. On his transfer his successor PW. 10 arrested Santosh. On completion of investigation, PW. 10 submitted charge-sheet against all the four accused persons under Section 302/34, IPC showing the accused appellant Ratan and accused Ashotosh as absconders.
5. Learned Judicial Magistrate committed the case to the Court of Session under the aforesaid sections of law. A charge under Sections 302/34, IPC was framed, read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. During trial prosecution examined 10 witnesses. In the meantime accused Santosh died by committing suicide. The statements of the remaining three accused persons were recorded under Section 313, Cr. P. C.They pleaded innocence and declined to adduce any evidence. The defence case is one of total denial.
6. On consideration of the evidence on record and after hearing the prosecution and the defence, learned Sessions Judge acquitted the accused Ashotosh Debnath and Benulal Debnath but convicted the accused appellant Ratan Debnath as stated above and hence the instant Appeal. The State preferred no appeal against the acquittal of Ashotosh and Benulal.
7. Mr. Sarkar, learned counsel for the accused appellant, has led us minutely through the evidence on record. It has been faintly suggested by the defence that the deceased was involved in trans border smuggling and was killed by smugglers on Indo-Bangladesh border because of some disputes arising out of their smuggling activities. In cross-examination PW. 2 simply said that black marketiers occasionally quarrelled among themselves. He however, did not say that the deceased was ever involved in such black marketing, PW. 4 denied that the deceased and the accused Santosh quarrelled on the border over some smuggling disputes. P.Ws. 6 & 7 also denied the defense suggestion that the deceased was assaulted on the border by smugglers. No such suggestion was put to any other witness, nor any of the accused persons uttered a single word to that effect during their examination under Section 313, Cr. P.C. on the other hand, PWs. 6 & 7 saw the deceased being assaulted in Srinagar market on 30-1-1995 after 6 p.m. Other witnesses have seen him in injured condition in the said market and from there he was taken to Srinagar Primary Health Centre. The Investigating Officer PW. 9 seized blood stained earth from the place of occurrence in the market. Hence the defence story that the deceased was fatally assaulted on Indo-Bangladesh Border by some smugglers is unworthy of credence. As per the inquest report Ext. 4, an injury looked like a dagger blow, was seen in the facial region above the nose, cut injuries were seen above and below the lips, in the check; marks caused by blow of hammer and lathi were seen on the forehead. The Government Doctor PW. 3, who performed Post Mortem examination on the dead body of the deceased on 31-1-95, found the following injuries :
Three depression measuring 2 1/2' x 2 1/2' on the head. A laceration 2' x 1' on the bridge of the nose. Penetrating wounds near left inner canthus, outer canthus and right outer canthus, all measuring 2' x 1/4'.
Sharp cut injury over left mordible covering upper and lower lip, 2' in length Mandible (1t) disposition of teeth.
Bruises over both eye lid.
A penetrating injury in frontal lobe of the brain corresponding to internal penetrating injury.
According to the doctor, all the injuries were antemortem and homicidal in nature. The doctor opined that the death was caused by cardio respiratory failure due to neurogenic and haemorrhagenic shock. In cross-examination the doctor said that the instant death of the deceased was due to the head injuries but even without those head injuries the deceased could have died after going into coma for some time. It was not suggested to the Doctor in his cross-examination that it was not a case of homicide and that the injuries were caused by accident. The Doctor's testimony coupled with other evidence on record leaves no room for doubt that the deceased was done to death at time and place as alleged by the prosecution.
8. The next question is whether the accused appellant Ratan Debnath participated in the brutal assault on the deceased causing his death. Of the total 10 witnesses examined by the prosecution in this case, the deceased's father PW. 1 did not see for himself the accused-appellant assaulting his son. PW. 2 was declared hostile. PW. 3 Doctor held post mortem examination. PWs. 4 & 5 said in examination-in-chief that they came to learn that the accused-appellant and the accused Santosh killed the deceased without disclosing from whom they learnt that. Hence their statements as regards the implication of these two accused persons is hearsay evidence and cannot be acted upon PWs. 9 and 10 are two police officers and their evidence is formal in nature. The prosecution relies upon the evidence of PWs. 6, 7 & 8 to connect the accused appellant and accused Santosh with the alleged offence. PW. 7 is not a eyewitness. He deposed that on 26-1-95 accused Santosh assaulted him in a quarrel relating to Barga cultivation and his cousin Pradip (deceased) enquired about the incident from accused Santosh the day before the occurrence, and on the day of occurrence itself PW. 8 informed him that accused Santosh along with accused Ratan and few others fatally assaulted the deceased. In cross-examination, PW. 7 claimed to have made similar statements before the Investigating Officer. But the Investigating Officer (PW. 9) was not asked in cross-examination whether PW. 7 actually made such statements before him. There is nothing in cross-examination of PW. 7 from which it can be reasonably concluded that he has not stated the truth. Learned Public Prosecutor Mr. Das submits that killing of the deceased on 30-1-95 was a sequel to his meeting the accused Santosh the day before demanding an explanation from him about the assault on his cousin (PW. 7) on 26-1 -95. This shows enmity between the deceased and his cousin (PW. 7) on one side and the accused Santosh and his associate accused Ratan on the other side. But enmity is a double-edged weapon which cuts both ways. Learned Public Prosecutor Mr. Das submits that such enmity constituted motive for killing the deceased, whereas learned defence counsel Mr. Sarkar argues that such enmity provided a motive for false implication. However, because of clear and convincing evidence of PWs. 6 and 8 implicating the accused Santosh and the accused appellant Ratan, the plea of false implication does not merit acceptance. PWs. 6 and 8 claimed to be the eye-witnesses to the actual occurrence. Learned Sessions Judge elaborately discussed their evidence which we have also scrutinized on 30-1-95 at about 5 p.m. PW. 6 accompanied the deceased to Srinagar market and took tea in the tea stall of PW. 4 and stayed there till 6 p.m. P.W. 6 deposed that then there was load shedding and the deceased went out of the tea stall through the rear door and was just 6/7. cubits away from there when the accused Santosh along with others appeared in the scene and pushed him down. On hearing his alarm, PW. 6 came near him and saw accused Santosh assaulting him with a lathi and accused appellant Ratan stabbed him with a knife. PW. 6 tried to dissuade them, but they threatened him. By the time PW. 6 collected people, the accused persons fled away. The deceased was lying on the ground unconscious. PW. 6 along with others took him to the hospital, but on the way he succumbed to injuries. PW. 6 identified M.O. 1 as lathi accused Santosh used to assault the deceased. PW. 6 added that accused Santosh procured this lathi in his presence by pulling it from a market shed. PW. 6 further said that at the time of assault the deceased's brother Subrata (PW. 8) reached the place of occurrence. Learned defence counsel Mr. Sarkar submits that in cross-examination of PW. 6, the defence challenged his statements in examination-in-chief that he along with the deceased took tea in tea stall of P.W. 4 and that after loadshedding the deceased went out through the rear door and soon thereafter on hearing his alarm he went near the deceased and saw that the accused Santosh and Ratan chased him while he tried to dissuade them. Mr. Sarkar draws our attention to the observation of the learned Sessions Judge while recording evidence of P.W. 6 that such statements PW. 6 made in the Court were not found in his earlier statement under Section 161, Cr. P.C. before the Investigating Officer. In the first place, PW. 6 did not say in his examination-in-chief that accused Santosh and Ratan chased him, he only said that they threatened him. Then Investigating Officer PW. 9 in his cross-examination was not confronted with these statements to prove the omissions. Even assuming that the omissions have been proved in a legal and correct way, in the facts and circumstances such omissions cannot be said to be material omissions to justify rejection of evidence of PW. 6 implicating the accused Santosh and accused appellant Ratan. We hardly come across a witness whose evidence does not contain a grain of untruth. On 30-1 -95 at about 6-30 p.m. the other eye-witness PW. 8 was gossiping with his friend in front of tea stall of one Santosh Sarkar (not examined). Corroborating the evidence of PW. 6 on all material particulars, PW. 8 said that he saw that his brother Pradip was coming out of the tea stall of PW. 4 leaving PW. 6 in the tea stall when accused Ratan, caught hold of him and accused Santosh assaulted him with a lathi. Pradip fell down and accused Ratan stabbed him with a knife. When PW. 8 rushed there to rescue his brother, accused Santosh assaulted him with the same lathi and accused Ratan threatened him with the same knife. He ran up to nearby BSF camp and returned with some BSF personnel and found Pradip lying dead and assailants already escaped. He along with PW. 6 and others took the deceased to the Hospital where he was declared dead. Here also the defense counsel Mr. Sarkar submits that in cross-examination of PW. 8 the defence challenged his statements that accused Ratan assaulted his brother with a knife that accused Santosh assaulted him (PW. 8) with a lathi and accused Ratan threatened him (PW. 8) with a dagger and that he ran to BSF Camp and returned with some BSF personnel and with their help took Pradip to the Hospital. Here again learned defence counsel Mr. Sarkar draws out attention to the observation of the learned Sessions Judge while recording evidence of PW. 8 that the above statements PW. 8 made in the Court were not found in his earlier statements under Section 161, Cr. P.C. before the Investigating Officer. But it transpires from the learned Sessions Judge's observation itself that PW. 8 did state before the Investigating Officer that accused Ratan assaulted Pradip with a sharp weapon and needless to say that a knife is a sharp cutting weapon. Further PW. 8 told the Investigating Officer that accused Santosh threatened him with a lathi though he did not say that Santosh assaulted him with a lathi. Even if it is true that PW. 8 omitted to tell the Investigating Officer that accused Ratan threatened him with a dagger and that he ran to the BSF Camp and told some BSF personnel and with their help took the deceased to the Hospital (though Investigating Officer PW. 9 was not confronted with this statements to prove the omission), these are not material omissions and do not go to the root of the matter and shake the basic version of the prosecution case.
In view of this, the decision of this Court in Mritunjoy Chakma v. State of Tripura decided on 3-8-93 is of no assistance to the accused appellant. Mr. Sarkar, learned counsel for the accused appellant, relied upon the following portion:
P.W s. 2, 4 and 5 deposed that the mother went near the injured and asked him what happened and he told her that Mritunjoy (Appellant) stabbed him.... It was suggested in cross-examination of P.W. 4 that he did not mention about this dying declaration to the Investigating Officer. He denied the suggestion. We find a note made in the deposition by the learned Sessions Judge that there was no reference to it in the case diary statement. Of course, it may be open to the learned Sessions Judge for the purpose of verifying whether a correct suggestion was being put to look into the case diary statement. However, we do not think it was any part of the duty of the learned Sessions to make a note.... The defence counsel would be well advised in the case of a positive contradiction to get the relevant portion marked tentatively subject to proof. Of course no part of the statement can be marked in the case of an omission. Where the witness denies the contradictory previous statement, it requires proof through the Investigating Officer who questioned him. No attempt was made to contradict P.W. 4 with reference to omission in the previous statement. We find that no attempt was made to prove the omission when the Investigating Officer was being examined. We would like to point out that even if the defence counsel fails in the discharge of his duty, the learned Sessions Judge cannot be a silent spectator. Where it is obvious to him that there is a contradiction as asserted by a witness, he would do well to alert the defence counsel so that requirements of Section 145 are satisfied.
9. Mr. Sarkar, learned counsel for the accused appellant urges that the evidence of PWs. 6 & 8 does not inspire confidence, the former being a partisan witness and the latter a related witness. It is true that according to PW. 6, he accompanied the deceased to Srinagar market and together took tea in the tea stall of PW. 4 on the fateful evening. There is, however, nothing on record to show that PW. 6 was a constant companion of the deceased. In a village with small population, villagers know one another and are on visiting terms. The evidence of eyewitness living in the same village cannot be discarded on ground of being partisan witness. It is also true that the deceased was brother of PW. 8. Close relationship of a witness to the deceased is, however, no ground to discard his evidence, if otherwise reliable. There is nothing on record to show that PW. 6 or PW. 8 had any enmity with any or all of the accused persons and that they had direct interest in having the accused persons somehow convicted. PWs. 6 and 8 cannot be regarded as interested witnesses.
10. Another ground of attack on the credibility of PWs. 6 & 8 is that as the alleged incident took place around 6-30 p.m. during load-shedding in the area, the identification of the accused persons by PWs. 6 and 8 in the darkness is doubtful. However, slightest suggestion to the effect that they could not recognise the assailants because of darkness was put to PWs. 6 & 8 in their cross-examination, though they categorically said in examination-in-chief that they saw the accused Santosh and Ratan committing the offence. When it was intended to suggest that PWs. 6 & 8 were not speaking the truth on the point of identification of the accused persons, their attention should have been drawn to it by cross-examination to give them an opportunity to offer explanation, if any. At 6-30 p.m. in the evening it was not pitch-dark to rule out the possibility that PWs. 6 & 8 could recognise the accused Santosh and Ratan whom they knew since before the occurrence. It is not that PWs. 6 & 8 saw them from a distance or saw them running away from the place of occurrence. PWs. 6 & 8 saw them assaulting the deceased, came near them, tried to dissuade them and were threatened by them. In the facts and circumstances, we find no reason to disbelieve the (sic) testimony of PWs. 6 & 8 that they saw accused Santosh and Ratan assaulting the deceased. After close scrutiny, we accept the evidence of PWs. 6 & 8 as substantially true notwithstanding some discrepancies noticed in their evidence. PWs. 6 & 8 satisfactorily accounted for their presence at the time and place of occurrence. They fully corroborate each other on all material particulars. Their evidence conforms to the attending circumstances and to the medical evidence discussed in paragraph 7 of this judgment as regards the number and nature of the injuries and the weapons used to cause such injuries. PWs. 6 & 8 deposed that accused Santosh used a lathi and accused Ratan a knife. PW. 3 Doctor said that the injuries were caused by blunt object and sharp cutting weapon. PWs. 6 & 8 did not say that accused Santosh inflicted only one lathi blow and accused Ratan stabbed the deceased only once. Doctor found several depressions on the head and several cut injuries and penetrating wounds on the person of the deceased. PWs. 6 & 8 found the deceased lying unconscious on the spot. The doctor said that the instant death of the deceased was due to the head injuries, but without such head injuries, he would have died after going into coma for some time.
11. The medical evidence as discussed in paragraph 7 of the judgment and above clearly shows that the injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause death. It is in evidence that the deceased was pushed down and when he fell down on the ground accused Santosh started hitting him with a lathi and accused Ratan started stabbing him with a knife. In view of the weapons used, the ferocity of the attack, multiplicity of injuries, the site of the injuries and all other surrounding circumstances, the accused Santosh and Ratan must be said to have intended to cause the injuries found to be sufficient in the ordinary course of nature to cause death within the meaning of Clause 3 of Section 300, IPC. What is stated above also establishes that the common intention of accused Santosh and Ratan was to commit the murder of the deceased. When they played with lathi and knife, the circumstance that one's stab fell on a less or more vulnerable part in the person of the deceased is of no consequence to fix the guilt of murder. Section 34, IPC fixes constructive liability. The learned Sessions Judge rightly convicted the accused appellant Ratan Debnath under Section 302/34, IPC and sentenced him thereunder to imprisonment for life, which is the minimum sentence that can be awarded in a conviction under Section 302, IPC.
12. In the result, the appeal fails and is dismissed.
H.K. Sema, J.
13. I agree.