Judgment:
Maibam B.K. Singh, J.
1. Heard Mr. S. Talapatra, learned Senior Advocate, assisted by Mr. D. Bhattacharjee, learned Counsel appearing on behalf of the appellants and Mr. B. R. Das Roy, learned Public Prosecutor In-charge appearing on behalf of the State-respondent.
2. This appeal is directed against the judgment and order dated 10-12-2007 and 14-12-2007 respectively passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in S. T. No. 40 (NT/D) of 2007. The present two appellants were convicted for the commission of the offence under Section 302, IPC read with Section 34, IPC, vide the impugned judgment and each of them was sentenced to imprisonment for life and a fine of Rs. 10,000/-, in default to pay the fine, to suffer imprisonment for one year, vide the impugned order.
3. The charge framed by the Additional Sessions Judge, North Tripura, Dharmanagar against the two accused-appellants in S.T. No. 40 (NT/D) of 2007 is as follows:
That you on or about 14-12-2006 during any time in between 6.00 hours on 14-12-2006 to early morning on 15-12-2006 at Krishnatilla (Mrigrampara) under Pecharthal police station in furtherance of common intention did commit murder by intentionally causing the death of Nripeswar Debnath and you thereby committed an offence punishable under Section 302, of IPC read with Section 34 of IPC within cognizance of the Court.
4. The two accused-appellants pleaded not guilty and claimed to be tried in respect of the charge. During the trial, 14 P.Ws. and 1 D.W. were examined. There is no eye-witness to the crime. The conviction rests on circumstantial evidence. The circumstances are:
i) The deceased Nripeswar Debnath was called out and taken away from his house by the two accused-appellants in the morning of 14-12-2006 and he did not come back.
2) The deceased was last seen in the company of the two accused-appellants in the night of 14-12-2006.
3) One of the accused-appellants, namely, Ajit Sarkar is the cousin of Nripeswar Debnath's wife and for marrying his cousin without consent of her parents, the said accused-appellant was having a grudge against the said Nripeswar Debnath
4) The dead body of the said Nripeswar Debnath was found lying at the approach road of Mrigarampara on 15-12-2006 in the morning with reddish mark on his throat.
5) The death was found homicidal in nature and caused by asphyxia resulting from throttling 24 hours prior to post-mortem examination of the dead body held on 16-12-2006 at 3.30 p.m.
6) The two accused-appellants absconded for many days after the death of the said Nripeswar Debnath.
7) The two accused-appellants gave wrong information about the deceased to his younger brother (informant) that his brother Nripeswar Debnath had already left for his house and they failed to explain under what circumstances they parted company with the said Nripeswar Debnath on 14-12-2006.
5. It is well settled that in order to find conviction on circumstantial evidence each of the incriminating pieces of circumstantial evidence should be proved by cogent and reliable evidence and the Court should be satisfied that the proved pieces of circumstantial evidence taken together forge such a chain wherefrom no inference other than of guilt can be drawn against the accused persons or, in other words, the proved pieces of circumstantial evidence should not be capable of being explained on any hypothesis other than the guilt of the accused. In this connection, one may refer to the decisions of the Apex Court in Hukum Singh v. State of Rajasthan : (1977) 2 SCC 99 : 1977 Cri LJ 639; Eradu v. State of Hyderabad : AIR 1956 SC 316 : 1956 Cri LJ 559, Earabhadrappa v. State of Karnataka : (1983) 2 SCC 330 : 1983 Cri LJ 846; State of U.P. v. Sukhbasi : 1985 (Supp) SCC 79 : 1985 Cri LJ 1479; Balwinder Singh v. State of Punjab : (1987) 1 SCC 1 : 1987 Cri LJ 330; Ashok Kumar Chatterjee v. State of M.P. : 1989 Supp (1) SCC 560 : 1989 Cri LJ 2124; C. Chenga Reddy v. State of A.P. : (1996) 10 SCC 193 : 1996 Cri LJ 3461 and also State of U.P. v. Satish : (2005) 3 SCC 114 : 2005 Cri LJ 1428. Based on these parameters, we proceed to examine the evidence in the case.
6. Shri Nikhileswar Debnath (P.W. 1), who is the younger brother of the deceased Nripeswar Debnath, Smt. Ratna Sarkar (P.W. 6), who is the widow left by the deceased and Smt. Ujjala Debnath (P.W. 11), who is the mother of the deceased, are found to have testified to the effect that on 14-12-2006, the two accused-appellants came to the house of the deceased in the morning and they took him away. According to these witnesses (P.W. 1, P.W. 6 and P.W. 11), after the said taking away, the deceased did not came back and his dead body was found lying on the next day i.e. on 15-12-2006 in the morning at the approach road of Mrigarampara. These witnesses (P.W. 1, P.W. 6 and P.W. 11), being close relatives of the said Nripeswar Debnath and residing in the same house with him at the relevant time, were in position to know the facts of coming of the two accused-appellants and of taking away of him from his house on the said day. They (P.W. 1, P.W. 6 and P.W. 11) were also in position to know the fact of not coming back of the said Nripeswar Debnath on the said day. There is nothing to show that any denial was made in respect of the said facts during cross-examination of the said witnesses by the defence counsel. We do not find any reasonable ground as to why their testimonies should not be accepted. Apart from that, it is to be noted that the testimony of P.W. 1 in respect of the said facts are found substantially corroborated by his report marked Exbt. 1 submitted to the O/C Pechartha P.S. on 15-12-2006. At the same time, Shri Krishna Debnath (P.W. 2), who is said to have written the report at the request of P.W. 1, is found to have stated to the effect that he came to know of the said facts from P.W. 1 and others. P.W. 2 is admittedly a cousin of the deceased and there is no reason to disbelieve him in respect of the said facts. Shri Rasamay Debnath (P.W. 3), who is the resident of the locality of the deceased also came to know of the said facts. According to P.W. 3, he also participated in searching for the said Nripeswar Debnath. In the light of the above considerations, we are of the opinion that the said facts of coming of the two accused-appellants, taking away of the said Nripeswar Debnath on 14-12-2006 and not returning of the said Nripeswar Debnath on the said day are established by cogent and reliable evidence.
7. P.W. 1. P.W. 2, P.W. 3, P.W. 6, P.W. 11, Shri Orbajoy Reang (P.W. 5), Shri Puranjay Reang (P.W. 7), Kumari Amala Reang (P.W. 8) and Shri Kshirajay Reang (P.W. 10), who are all residents of Mrigarampara and the Investigating Officer, namely, Shri Sindral Reang (P.W. 14) are found to have testified about finding of the dead body of the said Nripeswar Debnath lying at the approach road of Mrigarampara. It is also ascertained that the dead body was found in the morning of 15-12-2006. No denial is found to have been made on behalf of the two accused-appellants during the cross-examination of the said P.Ws. There is no any reason as to why the above said fact of finding the dead body of the said Nripeswar Debnath lying at the approach road of Mrigarampara on 15-12-2006 in the morning, should not be taken as proved. It is also ascertained that the report to the O/C Pecharthal P.S. leading to the registration of the case against the two accused-appellants was filed on 15-12-2006 at about 8.00 a.m. after finding of the dead body.
8. P.W. 3, P.W. 11 and P.W. 14 are found to have testified that the dead body was found having injury marks on its throat. Exbt. 2 is the Inquest Report prepared by the I.O. (P.W. 14). The nature of marks found on the dead body is clearly mentioned in the Inquest Report (Exbt. 2). P.W. 1 and P.W. 2 also signed on the Inquest Report. As per the Inquest Report, some reddish marks were seen on the right side of the throat of the deceased. Dr. Anindita Chakma (P.W. 13) is the Medical Officer who was posted at Pecharthal PHC at the relevant time. According to P.W. 13. she conducted post-mortem examination on the dead body of Nripeswar Debnath on 16-12-2006 at about 3.30 p.m. Exbt. 4 is the post-mortem report of P.W. 13. P.W. 13's testimony is that she found three parallel reddish marks of the length of 3' with a gap of 1/2' in between the marks on the left side of the throat. Further, according to P.W. 13, another mark of length of 1' and breadth of 1/2' was found just below the right ear lobe and there was bleeding from left nostril.
9. In the opinion of the Medical Officer (P.W. 13), the death was due to asphyxia resulting from throattling and as such it was homicidal. Further, opinion of P.W. 13 is that the death occurred 24 hours prior to the post-mortem examination. We do not find sufficient reason as to why the finding and opinion of the Medical Officer (P.W. 13), who conducted the post-mortem examination on the dead body, should not be accepted. We have seen that as per Inquest Report (Exbt. 2), reddish marks were seen on the right side of the throat and that as per post-mortem report, three parallel reddish marks were seen on the left side of the throat. The above said discrepancy is not, however, sufficient to discredit the testimony of the Medical Officer (P.W. 13). Since the Medical Officer (P.W. 13) conducted the post-mortem examination and since she was supposed to specify particulars of her findings in her report, she must have taken due care while noting her findings and her testimony is reliable. It is quite possible that the IO committed mistake in mentioning the side of the throat on which the marks were seen. Since that possibility is not ruled out, the said discrepancy is not sufficient to discredit the prosecution case. It is to be noted that as per Inquest Report as well as the postmortem examination report, the said reddish marks were found on the throat of the deceased. We are of the opinion that the said discrepancy in mentioning the side on which the said marks were seen is a minor discrepancy and as such it can be ignored. We are also of the opinion that the MO's evidence is reliable for concluding that the death of the said Nripeswar Debnath was caused by throttling prior to 24 hours from the time of the post-mortem examination i.e. prior to 3.30 p.m. of 16th December. 2006. There is no sufficient basis for having doubt to the opinion of the MO (P.W. 13) regarding the cause of death. There is also nothing to show that the evidence of the MO (P.W. 13) regarding the time of death is either not scientific or contrary to known medical information. It has to be concluded that the death occurred 24 hours prior to the post-mortem examination. It does not mean that the death occurred exactly 24 hours before the postmortem examination. There is a strong possibility of the death having occurred some hours before the finding of the dead body i.e. the death having occurred either during the night of 14-12-2006 or in the early hour of 15.12-2006.
10. It is the case of the prosecution that the said Nripeswar Debnath was last seen in the company of the two accused-appellants in or about the night on 14-12-2006. On the basis of testimonies of P.W. 1, P.W. 2, P.W. 3, P.W. 6 and P.W. 11, we have ascertained that in the morning on 14-12-2006, the two accused-appellants came to the house of the said Nripeswar Debnath and that they took him away. We have also ascertained that the said Nripeswar Debnath did not come back to his house on 14-12-2006 and that his dead body was found lying in the morning on 15-12-2006 at the approach road of Mrigarampara.
11. Shri Puranjay Reang (P.W. 7) is a resident of Mrigarampara. His (P.W.7) testimony is to the effect that one day before the day on which the dead body of the said Nripeswar Debnath was found lying, the deceased and the two accused-appellants came to his house with a duck. According to P.W. 7, the said Nripeswar Debnath and the two accused-appellants prepared meat of the duck and ate the same with wine. Further, as per testimony of P.W. 7, they left his house at about 3.00 p.m. on the said day. Though P.W. 7 was cross-examined, his testimony is found not have been shaken. From the testimony of P.W. 7, it can be ascertained that the said Nripeswar Debnath was seen in the company of the two accused-appellants at 3.00 p.m. on 14-12-2006.
12. Kumari Amila Reang (P.W. 8) is also another resident of Mrigarampara. According to her (P.W. 8), one day before the day on which the dead body of the said Nripeswar Debnath was found lying, while she (P.W. 8) and her sister Panchabati Reang were harvesting at their paddy field, the said Nripeswar Debnath and the two accused-appellants came there at about 4.30 p.m. and while the said Nripeswar Debnath was sitting nearby, the two accused-appellants took part in harvesting the paddy crops. Further, according to P.W. 8 after leaving the field, while she (P.W. 8) and her sister were husking the paddy crops at their courtyard, the said Nripeswar Debnath and the two accused-appellants consumed local liquor in their dwelling house after collecting about half of a bottle of the local liquor from the locality. After hearing some loud voice and barking of dogs, P.W. 8 saw the two accused-appellants coming out through the back door and the said Nripeswar Debnath coming out through the front door of the dwelling house. According to P.W. 8, it was dark. Thus, the testimony of P.W. 8 is to the effect that the said Nripeswar Debnath was in the company of the two accused-appellants even after dark on 14-12-2006. Since the dead body was found in the morning of 15-12-2006, the deceased Nripeswar Debnath was seen in the company of the two accused-appellants some hours before the finding of his dead body. We do not find anything in her (P.W. 8) testimony for having doubt. P.W. 8 is an independent witness. There is no basis to take a view that she is not a reliable witness. There is also nothing for thinking that she {P.W. 8) gave contradictory statement to the IO during the investigation of the case. No portion of any contradictory statement of this witness (P.W. 8) was also proved by the I.O. In our opinion, P.W. 8 is a reliable witness and her (P.W. 8) testimony to the effect that the deceased was in the company of the two accused-appellants at her house till dark on 14-12-2006 is acceptable.
13. Shri Nilkanta, Reang (P.W. 9) is another resident of Mrigarampara. According to P.W. 9, he learnt from his wife about taking away of a bottle of country liquor kept at his house. It cannot be ascertained from his testimony as to when and who took away the country liquor, P.W. 9's testimony is not of any value.
14. Shri Kshirajoy Reang (P.W. 10) is another resident of Mrigarampara. P.W. 10's testimony is to the effect that at about 4.30 p.m. just before the dusk of the day. one day before the day of which the dead body was found lying, on request made by one of the accused, namely, Ajit Sarkar, he have half of a bottle of liquor from his house to the accused. Nothing is disclosed in the statement of P.W. 10 if the deceased and other accused-appellant also came along with the said Ajit Sarkar or not. The learned trial Court ought to have made an attempt to ascertain if the deceased and other accused-appellant were in company of the said Ajit Sarkar when the later came to the house of P.W. 10. The time mentioned by P.W. 10 as the time of coming of the said accused Ajit Sarkar i.e. 4.30 p.m. is the time mentioned by P.W. 8 as the time at which, according to her (P.W. 8), the deceased and the two accused-appellants came to her paddy field. If the accused' Ajit Sarkar is at the house of P.W. 10 at 4.30 p.m. he along with other accused-appellant and the deceased could not be present at the paddy field of P.W. 8 at the same time.
15. In depositions of witnesses, there are always normal discrepancies in respect of time, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation and normal errors of memory due to lapse of time. What these rustic witnesses stated about the times should be taken as the approximate times according to their estimation and they are not to be reckoned with exactitude. The nature of the discrepancies in the statement of the two witnesses (P.W. 8 and P.W. 10) is not of such a nature which cannot be reconciled at all. As per statement of P.W. 8, on that day the said Nripeswar Debnath and the two accused-appellants, after coming from her paddy field, asked to her if country liquor would be available. Further, according to P.W. 8, after ascertaining that no liquor was available at her house, the said Nripeswar Debnath and the two accused-appellants collected liquor of about half of a bottle from the locality. It is quite probable that the accused Ajit Sarkar collected the half bottle of liquor from the house of P.W. 10 not exactly at 4.30 p.m. It is also quite possible that the two accused-appellants and the said Nripeswar Debnath did not come to the field of P.W. 8 on that day exactly at 4.30 p.m. The above said discrepancies cannot be considered as material discrepancies. What is ascertained from P.W.8 is that on that day the deceased was in the company of the two accused-appellants till night. The above said finding is not disturbed by the testimony of P.W. 10.
16. The informant (P.W.1) is found to have testified to the effect that on 14-12-2006, when he went to Krishnatilla market in the evening in search of his brother, he learnt from the two accused-appellants about his brother having already left for his house at about 3.00 p.m. In the cross-examination, P.W. 1 stated to the effect that when he met and asked the two accused-appellants about his brother, it was about 4.30 p.m. In the report marked Exbt. 1, lodged by the informant, it is clearly stated that it was about 8 O'clock at night when he met the two accused-appellants, at Krishnatilla bazaar on 14-12-2006. The above said discrepancies were never brought to the notice of P.W. 1 and he was never asked to explain the discrepancies. In the facts and circumstances, the said discrepancies are not sufficient for concluding that it was day time on 14-12-2006 when P.W. 1 met the two accused-appellants at the said bazaar. Since the report was lodged on 15-12-2006 i.e., on the next day of the said meeting, we are of the view that the time mentioned in the report is the correct one. The above said discrepancies in mentioning the times are not sufficient in the facts and circumstances to disturb the finding already made that the deceased was in company of the two accused-appellants on 14-12-2006 till night.
17. Though P.W. 3 is not found to have stated anything in his examination-in-chief about meeting the two accused-appellants at Krishnatilla market at 4.30 p.m. on any day, he (P.W. 3) is found to have stated at the time of cross-examination that he found the accused Ajit and Swapan at Krishnatilla market around 4.30 p.m. on that day. The above said statement in the cross-examination about the finding of the two accused-appellants at the Krishnatilla market at 4.30 p.m. is not sufficient for disturbing the finding that the deceased was in the company of the two accused-appellants on 14-12-2006 till night. Further, according to P.W. 3, he was informed by Uttam Sarkar and Madhab Roy about seeing of the said Nripeswar Debnath (deceased) in the house of Tarafa Reang at Mrigarampara. The said Uttam Sarkar was examined as D.W. 1. According to D.W. 1, on the day one day before the finding of the dead body at about 7.15/7.30 p.m. while he and Madhab Roy were returning from the house of one Kalayani Roy, they found the said Nripeswar Debnath sitting on a stack of straw at the courtyard of Tarafa Reang. Further, according to D.W. 1, on the said day, afterwards, they also met the two accused-appellant at Krishnatilla market. In the cross-examination, D.W. 1 is found to have stated that he saw the said Nripeswar Debnath (deceased) at the distance of 50/60 cubits in the dark night. According to D.W. 1, seeing a person sitting, he presumed that he might be the said Nripeswar Debnath. The above said testimony of D.W. 1 was about seeing the said Nripeswar Debnath alone on 14-12-2006 at about 7.15/7.30 p.m. at the Courtyard of Tarafa Reang is not reliable, inasmuch as, admittedly, on seeing a person in the dark night, he (D.W. 1) presumed that the person might be the said Nripeswar Debnath. D.W. 1 was not certain about the identity of the person whom he saw. D.W. l's statement is not to the effect that after talking with the person or after noting his physical features, he presumed the said person as Nripeswar Debnath. The above said testimonies are not sufficient to disturb the finding that the said Nripeswar Debnath was in company of the two accused-appellants on 14-12-2006 till night.
18. Regarding the fact of abscondance of the two accused-appellants after the death of Nripeswar Debnath, P.W. 2 is found to have testified that the two accused-appellants were found absconding. Apart from asking the witness (P.W. 2) if he went to the house of the accused-appellants to verify if they were absconding or if they were in their respective houses, there is nothing to show that any denial was made from the side of the two accused-appellants at the time of cross-examination of the witnesses. Apparently, the prosecution did not also properly try to prove the fact of abscondence of the two accused-appellants. From the testimony of the I.O. (P.W. 14), it is ascertained that one of the accused, namely, Ajit Sarkar could be arrested only on 6-2-2007 i.e. after more than one month of the death of the said Nripeswar Debnath. The other accused could not be arrested and as such he was sent up for trial by showing him as an absconder in the charge-sheet. We have perused the Case Diary maintained by the I.O. There is no any doubt that the two accused-appellants absconded after the death of the said Nripeswar Debnath.
19. As regards the fact of having a grudge against the said Nripeswar Debnath by the accused Ajit Sarkar for marrying his cousin without consent of the parents of the said cousin, P.W. 1, P.W. 6, P.W. 11, who are the younger brother, the widow and the mother of the deceased respectively, are found to have testified to the said effect. They (P.W. 1, P.W. 6 and P.W. 11) came to know of the fact from the said Nripeswar Debnath who informed his wife (P.W. 6) about threat having been made in that connection by the accused Ajit Sarkar. There is no sufficient reason as to why they should not be believed. They were in position to know the said facts. It is also ascertained that the two accused-appellants are friends. As per testimony of P.W. 6, on 13-12-2006, the two accused-appellants took meal in the house of the said Nripeswar Debnath. There is no denial of this fact in the cross-examination of P.W. 6. We have already ascertained that the two accused-appellants took away the said Nripeswar Debnath from his house in the morning on 14-12-2006 and that the said Nripeswar Debnath did not come back to his house. His dead body was found lying in the morning of 15-12-2006.
20. Though the two accused-appellants are known to the family of the said Nripeswar Debnath and though they took out the said Nripeswar Debnath from his house in the morning on 14-12-2006 and though they were with the Nripeswar Debnath taking meal and having liquor till night on 14-12-2006, when the younger brother (P.W. 1) of the said Nripeswar Debnath, being apparently anxious due to not coming back of his brother, asked to them about his brother in the night of 14-12-2006, they informed him that his brother had already left for his house at 3.00 p.m. This information given by the two accused-appellants was false. We have already ascertained that the said Nripeswar Debnath was with the two accused-appellants at Mrigarampara area on 14-12-2006 till night as evident from the testimony of P.W. 8. At the same time, had the two accused-appellants been not connected with the homicidal death of Nripeswar Debnath, they would have explained under what circumstances they parted company with the deceased in the night on 14-12-2006 instead of denying all the facts during their examination under Section 313 of Cr. P.C. Examination under Section 313 of Cr. P.C. is not an empty formality. The purpose is to bring to the notice of the accused the materials brought on record by the prosecution to substantiate the accusation. An opportunity is granted to the accused to explain incriminating circumstances against him and have his say in the background of the evidence brought on record by the prosecution. In the present case, the two accused-appellants denied all the facts and no acceptable explanation was given. These circumstances of giving a false information by the two accused-appellants to the brother of the deceased that the deceased had already left for his house and their failure to explain under what circumstance, they parted company with the deceased on that day in the night, instead of denying every material facts established and brought to their notice by the prosecution; are proved and these are material circumstances to be taken into consideration along with other circumstances.
21. In the light of the above circumstances, we find that the prosecution case is not one wholly based on the circumstantial evidence of last seen together. We have already ascertained that the deceased Nripeswar Debnath was last seen with the two accused-appellants on l4-12-2006 in the night at Mrigarampara and that the dead body of the said Nripeswar Debnath was found lying at the approach road of Mrigarampara on 15-12-2006 in the morning. It is also ascertained that the said Nripeswar Debnath was killed by throttling either in the night on 14-12-2006 or in the early morning of 15-12-2006. Though the circumstance of last seen together alone may not be sufficient to conclude that the two accused-appellants killed the said Nripeswar Debnath, in the present case, there are circumstances i.e. of abscondence of the two accused-appellants after the death of the said Nripeswar Debnath, giving of false information to the younger brother of the deceased to the effect that the deceased had already gone to his house of 14-12-2006 at 3.00 p.m. and failure on the part of the two accused-appellants to explain under what circumstances they parted with the deceased whom they had brought out from his house, which are found to have been established beyond doubt. These circumstances cannot be ignored and they are also to be considered along with the circumstance of last seen together. The proved pieces of circumstantial evidence taken together have forged a chain wherefrom no inference other than of guilt can reasonably be drawn against the two accused-appellants. In our opinion, when all the said circumstances including the circumstance of last seen together in the night of 14-12-2006 are considered, we have no hesitation to hold that the charge against the two accused-appellants is proved beyond reasonable doubt. Accordingly, no inference is called for in respect of the finding made by the trial Court in the impugned judgment and order. None of the grounds submitted on behalf of the appellants is sufficient to interfere with the impugned judgments and orders.
22. In the result, this appeal is rejected. No order as to costs.