U.B. Saha, J.
1. Feeling aggrieved by the judgment and order dated 22-2-2007 passed by the learned Addl. Sessions Judge, West Tripura, Khowai in S.T. 15(WT/K) of 200(5 whereby and whereunder the appellant was convicted Under Section 364 read with Section 149 of IPC and also under Section 27(1) of the Arms Act read with Section 149, IPC sentencing him to suffer R. 1. for 7 years and also to pay fine of Rs. 4,000/- for the offence committed Under Section 364 and Under Section 149, IPC, in default, to suffer R.I. for 1 year and he was further sentenced to suffer R.I. for 3 years and also to pay a fine of Rs. 2,000/- for the offence Under Section 27(1) of Arms Act, in default, to suffer R.I. for 6 months, both the sentences will run concurrently, the convict-appellant (hereinafter referred to as the appellant) has preferred the present appeal.
2. Heard Mr. H. Debnath, learned Counsel for the appellant as well as Mr. D. Sarkar, learned P.P. Tripura assisted by Mr. R.C. Debnath, for the State respondent.
3. A brief narration of the prosecution case would be necessary in order to examine the legality and correctness of the impugned judgment, by which the appellant was convicted and sentenced. On 4-12-2004 at about 11 a.m. while a group of labourers, 11 in number, were engaged in harvesting paddy in the land of the informant, Nakshirai Debbarma, P.W. 8, a group of ATTF extremists led by Bipin Debbarma, Khurumpai Debbarma, Atu! Debbarma and Sukumar Debbarma being armed with gun and pistol raised objection in harvesting paddy and out of fear almost all the labourers working in the aforesaid paddy field fled away. However, those extremists forcibly took one of the labourers, namely, Santosh Debbarma, P.W. 7, away. Two of the labourers, namely, Dipu Debbarma and Sukumar Debbarma informed the matter to one Nakshirai Debbarma (informant) who, in turn, went to the CRPF camp and reported the incident and also lodged a complaint with the Kalyanpur Police Station in connection with the incident.
4. On receipt of the First Information Report, police started investigation and on completion of the same, the I.O. of the case submitted charge sheet against the appellant, Sanjit Debbarma alias Khurumpui Debbarma, Sukumar Debbarma alias Balai and Atul Debbarma Under Sections 148/149/364 of IPC and 27-A. Act.
5. The Sub Divisional Magistrate, Khowai, West Tripura took cognizance on the basis of the police report and committed the case to the Court of learned Addl. Sessions Judge, West Tripura. Khowai, who, accordingly, tried the case against three accused persons including the appellant, namely, Sanjib Debbarma alias Khurunpai Debbarma, Sukumar Debbarma and Atul Debbarma, but the trial of the remaining accused, namely, Sukumar Debbarma was adjourned sine die by the committing Court as he had absconded.
6. The trial Court, prima facie, satisfied with the charge-sheet submitted by the I.O. and framed charges Under Sections 148/364 read with Section 149 of IPC and Under Section 27(1) of A. Act against all the three accused persons, who pleaded not guilty and claimed to be tried. During the course of trial, the prosecution examined as many as 10 witnesses and exhibited some statements. The defence case, as would appear from the record, was a complete denial to the allegations brought against them.
7. After hearing the learned Counsel of the parties and on appreciation of the testimony of those prosecution witnesses, the learned trial Court convicted and sentenced the appellant herein.
8. Mr. H. Debnath, learned Counsel appearing for the appellant, assailing the findings of conviction and the sentence, has strenuously contended that the learned trial Judge failed to appreciate, in two perspective, the testimony of the witnesses applying the doctrine of 'sifting of evidence, i.e. separating the truth from falsehood' and came to its conclusion holding wrongly that the present appellant was guilt. In support of the grounds taken in the appeal, Mr. Debnath, contends that the evidence available on record ore not sufficient for conviction of the appellant, more so, on the basis of the statement of the victim, P.W. 7, namely Santosh Debbarma, which was recorded after three months of the incident though on the date of incident itself the victim met with the police personnel in the hospital but he was not admitted in the hospital. The statement of the victim on oath before the Court is also not corroborated by any other witnesses. The learned Counsel further urges that the victim, P.W. 7, in his deposition before the Court, submitted that he did not know the accused-appellant prior to the date of the incident. He came to know the appellant when he was called by others while the victim was beaten up and taken by the alleged extremists inside the jungle from the paddy field and thereafter at the time of trial, the victim had seen the appellant in the Court room and identified in the Dock. The said identification of the appellant is doubtful and cannot be accepted as it is well settled that when a witness identifies an accused, for the first time in the Court, who is not known to him at the time of incident, is absolutely valueless unless previously there had been a TI parade. In support of his aforesaid contention he relies on the case of Kanan v. State of Kerala reported in : 1979CriLJ919 particularly paragraph 3 of the said report. He also relies the case of State (Delhi Admn.) v. V.C. Sukhla reported in : 1980CriLJ965 , particularly paragraph 23. He also urges that the informant, Nakshirai Debbarma (P.W. 8), in his com-plaint/FIR, specifically stated that he was informed by the P.W. 1 and P.W. 6 of the incident regarding the fact of resisting the harvesting of the paddy field by the extremists and also under which circumstances the victim, Santosh Debbarma was forcibly taken away by the extremists. But, P.Ws. 1 and 6 did not disclose in their deposition that they ever informed the incident to the informant. The informant also stated in his statement on oath in the Court that he inquired the matter from the victim, Santosh Debbarma, P.W. 7 in the hospital about the identity of the miscreants to which the victim stated only the name of one Khurumpai Debbarma, who along with others forcibly took him. But the victim, P.W. 7, nowhere stated in his evidence that the informant met with him in the hospital and he disclosed the name of the appellant to him. Therefore, the evidence of P.W. 8 is not believable at all as the said statement is material contradiction between his statement on oath and statement of the victim. Even if his statement is believed for the argument sake, then also the statement of P.W. 8 regarding the disclosure of the name of the appellant con-wet by the victim, question remains why P.W. 8 did not mention the said fact in the FIR. Non-mentioning of the said fact in the FIR itself proves that those statements are subsequent developments and also contradictory to each statement and on the basis of said statement an accused like the present appellant cannot be convicted, as done by the learned trial Court.
That the informant's conduct so far narrating the statement of the victim, inter alia, that on enquiry the victim said to him that the appellant forcibly caught him and took him away in the jungle is not admissible in view of the provisions of Section 157 read with Section 145 of the Evidence Act for the purpose of corroboration in respect of identification of the appellant, divergent versions are made by the informant in his two statements i.e. the statement in the First Information Report and the statement given in the Court. In support of his said contention he also relied upon the decision of Mohan Rai v. State of Bihar reported in : 1968CriLJ1479 .
9. Mr. Debnath also urges that except the victim, P.W. 7, none saw and identified the appellant and the victim also could not know the appellant before he was taken into the jungle by the alleged miscreants extremists and kept there at the time of assaulting him and he also stated that he saw the appellant for some time and identified when the appellant was called by other 2 (two) extremists. He further contends that on the basis of said statement of the victim for identification for a short-while, it would not be wise for the Court to convict and sentence an accused person like the appellant when the P.W. 7 identified him though he was not known to him prior to the incident and his evidence is absolutely valueless unless there has been a previous TI parade to test his powers of observation. He again contends that the statement of P.W. 7 regarding the incident of his assault as well as identification of the appellant is not corroborated by any of the prosecution witnesses. The prosecution also did not examine the Officer incharge of the CRPF, namely Balaban Singh, who asked the victim regarding the incident just after the occurrence in presence of the police personnel, though he is a material witness and for such non examination and non production, no explanation has been given by the prosecution. Such an act of the prosecution creates a doubt regarding the involvement of the appellant in the alleged incident. Mr. Debnath finally raises his voice and attacks the impugned judgment of the learned Addl. Sessions Judge, inter alia, for non-examination of the I.O. by the prosecution at the time of trial, who recorded the statements of the witnesses Under Section 161, Cr.P.C. and the learned Addl. Sessions Judge also did not consider the said aspect for which itself the appellant was prejudiced from defending his case properly as he could not get the opportunity to cross-examine the I.O. to establish the falsity of the statement of the prosecution witnesses. According to him, non-production and for withholding of such a material witness, like the I.O. vitiates the entire prosecution case and creates a doubt as to the involvement of the appellant in the alleged incident for which itself he is liable to be acquitted of the charges levelled against him.
10. In support of his contention regarding non-production of the material witness, he referred to the case of Habeeb Mohammad v. State of Hyderabad reported in : [1954]1SCR475 wherein the Apex Court, in para 11 of its judgment, held:
11. xxx xxx xxx xxx
In this situation it seems to us that Biabani who was a top ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth; and in any case, the Court would have been well advised to exercise its discretionary powers to examine that witness. The witness was, at the time of the trial, in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against, the prosecution case from his non-production as a witness in view of illustration (g) to Section 114 of the Indian Evidence Act, but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial. It seems to us that the appellant was considerably prejudiced in his defence by reason of this omission on the part of the prosecution and on the part of the Court.
11. In reply to the submission of Mr. Debnath, learned P.P., Mr. D. Sarkar, fairly submits that the evidence available on record are not sufficient for conviction of the appellant, more so, on the basis of the statement of the victim recorded after three months of the incident and no corroboration by other witnesses. The learned PP also fairly submits that the trial Court failed to consider the principles laid down by the Supreme Court regarding identification of a person/accused who was not known to the victim before the incident.
12. Now, duty cast on this Court is to see whether evidence of the prosecution witnesses establishes a case to prove the charges levelled against the appellant for his conviction and sentence. Accordingly, the statements of the prosecution witnesses are reproduced below:
13. Sri Dipu Debbarma, P.W. 1 in his deposition stated that, about two years back at about 11 a.m. he along with some other labourers were working in the paddy field of Nakshirai Deb barma. At that time four persons suddenly came there from jungle in civil dresses. He suspected them as men of extremist group. Out of fear, he left the place, he could not identify any of them. Later he informed the owner of the land. He heard that all those persons forcibly took away one Santosh Deb Banna who was later released. In his cross he stated they were not armed with any firearm. It is not a fact that he did not leave the place and no extremist came there or Santosh was not kidnapped by them.
14. Sukhumani Deb Barma, P.W. 6, deposed that while he along with some labourers were harvesting paddy in the land of Nakshirai Deb Barma, 4/5 number of extremists came there and forcibly had taken Santosh Deb Barma. He could not recognize the extremists as they were unknown to him.
In his cross he stated that it was not a fact that he along with others were not working in the paddy field and Santosh was not taken by the extremists.
15. Sukuman; Deb Barma, P.W. 6, in deposition stated that while he along with some labourers were harvesting paddy in the land of Nakshirai Deb Barma. 4/5 number of extremists came there and forcibly had taken Santosh Deb Barma. He could not recognize the extremists, as they were unknown to him.
In his cross he stated that it was not a fact that they were not working in the paddy field and Santosh was not taken by the extremist.
16. Sri Santosh Deb Barma, P.W. 7, in his deposition, stated that on 4-12-2004 he along with 10 other labourers were harvesting paddy in the field of Nakshirai Deb Barma. At 10.30 a.m. three extremists, namely, Khurumpai Deb Barma, Rinai Deb Barma and Bapi Deb Barma being armed with fire-arm one grenade with one 10 band radio came to the paddy field and forcibly took him away along with them. He was taken away about 8/9 kms. in the jungle from the paddy field. On the way and also in the place where he was kept in the jungle he was assaulted by them. At about 4.30 p.m. he heard some firing sound of gunshot when all of them fled away, in the meantime, he also escaped. Later he heard that firing from guns was done by CRPF. Out of three identified extremists, only one namely, Khurumpai D/Barma, was found present in the dock. The witness identified one Sanjit Deb Barma accused of this case as Khurumpai Debbarma. His name was Khurumpai in the extremist group. He did not know him earlier. After he was being detained and taken by them, he came to know him as Khurumpai as he was called by others.
In his cross he stated that he had no occasion to see Sanjit alias Khurumpai before the occurrence. He was asked about the incident by a CRPF OC, Balaban Singh, when a police officer was also present who did not ask him any question. After release from the hospital, he was asked by police officer about this case. He also stated that names of Bapi and Rinai Deb Barma to police officer. He knew the other two accused tried in this case; they were Atul D/Barma and Sukar Deb Barma. He had seen them at Yakhrai market. It is not a fact that without knowing Sanjit rest two other accused. There were about 6/7 female labourers along with them. Dipu D/Barma; Mahendra D/Barma; Mongrai D/Barma; Runu D/Barma and Sukumani D/Barma are men of good character. But Sanjit alias Khurumpai was not a man of his area. He did not know the exact location of his (Sanjit alias Khurumpai) house. After being released from the hospital, police officer went to his house on being informed by Nakshirai D/Barma. After being released from hospital he had no occasion to talk with the labourers woked with him. At that relevant point of time, he was posted at RS Opara camp under Kalyanpur P.S. It is not a fact that on being tutored by police officer of Kalyanpur P.S. he was deposing falsely. He was asked by police in his house after three months of the incident. It is not a fact that he was not kidnapped by anybody and he was deposing false.
17. Sri Nakshirai Deb Barma, P.W. 8, in his deposition stated that on 4-12-2004 a group of labourers were harvesting paddy in his land at about 11/11-30 a.m. In the meantime, two labourers came hurriedly to his house and informed him that labour Santosh Deb Barma was forcefully taken by a group of extremist. Immediately after that he went to CRPF camp and informed about the incident. CRPF also talked with local police station and they immediately proceeded towards Baramura area where they opened some blank fire. On hearing the firing sound the extremists took Santosh D/Barma and fled away leaving him in the jungle. In the meantime, Santosh Deb Barma also fled away from the jungle who was later found by police. He was taken to Kalyanpur Rural Hospital by a police vehicle. On the next day P.W. 8 submitted one petition written by one person, whose name was written in the petition. This was the petition submitted by him and on identification the same was marked as Exbt. 2. The signature of the informant on identification is found marked as Ext. 2/1. He enquired from Santosh Deb Barma at hospital about the identity of the miscreants to which he stated only one Khurumpai Deb Barma who along with others forcibly took him.
In his cross he stated that the writer of the petition and that he got information from Santosh Deb Barma. But, while the attention of the witness was drawn to the complain petition, no such statement was found in the complain petition.
17A. P.W. 1, Dipu Debbarma, and P.W. 3, Sri Mahendra Debbarma, did not state anything about the involvement of the appellant as both of them left the place out of fear. They also did not say anything to the effect that the extremists were armed with fire arms and they did not also see while 'the victim, P.W. 7, Santosh, was taken away allegedly by the extremists including the appellant. They stated that they heard that Santosh Debbarma was taken away by the extremists and had been released subsequently. P.W. 2, Mongrae Debbarma, was declared hostile and P.W. 4, Bikash Debbarma tendered. P.W. 5, Runu Kumar Debbarma, only stated that he saw that it was Santosh Debbarma, who was forcibly taken away by a group of extremist. He could not identify the extremists. P.W. 6, Sukhumani Debbarma, also stated that he could not recognize the extremists, as they were unknown to him. P.W. 9, Dr. Rajesh Rn. Das, examined the victim, P.W. 7 in Emergency Ward and according to him all injuries were simple in nature caused by blunt object as mentioned in his report. In his cross he stated that he did not mention, in his report, from where the patient was received and though he wrote in his report that the victim, P.W. 7, was admitted in the hospital, but the fact remains is that he was not admitted in the hospital. P.W. 10, Sajal Kr. Paul, a Havildar of 6th Bn. TSR, who was performing patron duty on 30-6-2005 and detain the appellant on suspicion. In cross he stated that he did not state to the I.O. that he produced the accused, Sanjit Debbarma to Champahour Police Station.
18. That being the position, this Court is of considered opinion that the learned trial Court failed to consider the evidence on record by way of applying the doctrine of sifting, i.e. separating the truth from falsehood, rather gave more weightage to the nature of the offence without considering the evidence and in fact the trial Court gave more importance to the exaggeration or falsehood on the points which do not touch the core of the prosecution story and also the I.O. was not produced before the trial Court and for non production of the aforesaid material witness or withholding of material witnesses by the prosecution at the time of trial obviously prejudiced the appellant from taking proper evidence when it is well settled that essential witness must be examined and non-examination of such witnesses without giving any explanation is fatal in nature for which also a doubt is created in the mind of the Court regarding the prosecution story. The Apex Court also observed in the case of Narain v. State of Punjab reported in : 1959CriLJ537 thus (para 13):.Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution'. It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness 'essential to the unfolding of the narrative on which the prosecution is based'. Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that the would have been able to give evidence of the facts on which the prosecution relied. It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses.
19. Principles regarding non-production of material witness was also reiterated in the case of Thulia Kali v. The State of Tamil Nadu reported in : 1972CriLJ1296 wherein the Apex Court in para 13 of the judgment held as follows:
13. As regards the alleged recovery of knife and ornaments at the instance of the accused, we find that the evidence consists of statements of Inspector Rajagopal (P.W. 13). Kali Goundar (P.W. 6) and Chakraborti (P.W. 9). According to Chakravarthi (P.W. 9), the accused handed over the ornaments in question to the witness when the accused came to the house of the witness on the evening of March 12, 1970 and passed the night at the house. The witness also found knife in the bed of the accused after he had left on the following day. According however, to Kali Goundar (P.W. 6) the accused on interrogation by the Inspector of Police, stated that he had entrusted the ornaments to Thangam, wife of Chakravarthi (P.W. 9). Apart from the discrepancy on the points as to who was the person with whom the accused had kept the ornaments we find that Thangam with whom the accused according to Kali Gounder P.W. 6 had kept the ornaments, has not been examined as a witness. In view of the above statement of Kali Gounder, it was, in our opinion, essential for the prosecution to examine Thangam as a witness and its failure to do so would make the Court draw an inference against the prosecution.
20. In Kanan 1979 Cri LJ 919 (supra) the Apex Court held (para 1):
Where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T.I. parade and get the identification made before the witness was called upon to identify the appellant in the Court.
21. In State 1980 Cri LJ 965 (Delhi Admn)(supra) the Apex Court in paragraph 23 of the said decision, held:
23. ...The possibility that the witness committed some mistake in identifying cannot be ruled out. Moreover, the identification of Tripathi by the witness for the first time in the Court without being tested by a prior test identification parade was valueless.
There is no quarrel that the principles laid down by the Apex Court in the aforesaid two decisions, viz. Kanan (supra) and in State (Delhi Admn.)(supra).
21A. The facts of these cases are different from the present case. In the case at hand, P.W. 7, victim had the opportunity to see the appellant for some time and within that time he could recognize the person as he was called by other miscreants. It may, however, in my mind, be possible to identify a person even after a long time if he could see the person in connection with certain incident, which is a memorable one. Let me take the first plea taken by Mr. Debnath, who urges that there was no test identification parade and the accused appellant were only identified at the dock and that one additional different fact creates a world of difference between conclusions in two different case's even when the principles are applied in its case to similar facts. By this time, it is well settled that for identification of a person, it is not the law that for mere failure to hold the T.I. parade of an accused identified in the dock cannot be relied upon in evidence. The law is that even in absence of T.I. parade if an accused is identified in the dock, Court may take into consideration keeping in mind in what circumstances the petitioner first saw the accused person. It is not the proposition of law that after lapse of long period, the witnesses would in no case be able to identify the accused he had seen earlier. However, to rely upon such evidence of witness regarding identification for the first time in the trial, the Court must be extremely cautious when such evidence is before the Court. (See State Delhi Admn. v. Bal Krishan : 1972CriLJ1 ).
22. In the present case, the prosecution case should not only be disbelieved on the ground of non-identification of the accused-appellant by the victim prior to the trial, rather the identification for the first time in the trial, but also for non disclosure of the name of the accused appellant by the victim at the earliest opportunity to any of the witnesses except the I.O. who recorded the statement almost after three months and also not produced such a material witness before the Court for examination, it would be, in such a situation, proper for the Court to disbelieve the statement of the injured victim as the time required for identification of the accused was not available to him. This Court is of considered opinion that such statement of the victim by which he is implicated the appellant cannot be considered as a reliable one as it has created a doubt in the mind of the Court regarding involvement of the appellant. In that case, the accused is entitled to get the benefit of doubt and in this case also there is doubt in the mind of the Court regarding the involvement of the appellant and as such he is entitled to the said benefit of doubt.
23. Instant prosecution case cannot be said to be sustained only on the ground of non holding of T.I. parade for identification of the accused person prior to trial as it is settled position that the same depends on the facts and circumstances of each case. Even in some cases identification of the accused for the first time in the Court can be accepted if the memory of the victim is powerful and normally it depends on the individual mnemonic but that has to be considered by the Court with some sort of caution. In the instant case, as the appellant could not get so much time for identification, it cannot be possible on his part to identify the accused person in the Court for the first time. As there is some doubt regarding identification of the accused, Court cannot fully believe such identification. Therefore, the accused is also entitled to get benefit of doubt.
24. In view of the submission of the learned Counsel, particularly, the submission made by the learned PP as well as the evidence on record and the law reports discussed above, this is a fit case where judgment of the trial Court calls for interference by this Court and therefore the judgment and order passed by the learned Addl. Sessions Judge, West Tripura Khowai in S.T. 15(WT/K) of 2006 whereby and whereunder the appellant was convicted Under Section 364 read with Section 149 of IPC and also under Section 27(1) of the Arms Act read with Section 149, IPC is liable to be set aside and same is set aside and the accused deserves acquittal. The appellant is set at liberty forthwith if he is not wanted in connection with any other case since the convict is in jail.
25. The appeal is, accordingly, allowed and disposed of.