Sudhir Sarkar Vs. State of Tripura - Court Judgment

Excerpt:
- - on seeing sudhir he asked him where he was going, whereupon sudhir said that his brother and sister had been killed and he was going to inform the police, then he told sudhir that he need not go to udaipur as his guardians like chintaharan sarkar, lalit sarkar and krishna sarkar could do that job. bhowmik, learned counsel for the appellant has submitted that the version of bijali sarkar that she had seen sudhir coming out of the house that she had asked him about her children and had got no reply was an after thought and development, obviously and clearly to implicate sudhir. on careful scrutiny and consideration of her statement, we have not found it reasonably safe to accept that what she had stated before the court was correct, for she had not made any such statements during investigation to the investigating officer, that she had seen sudhir coming out from the veranda of her hut as no such statements had been found in her statement under section 161 of the code of criminal procedure by the learned trial court. the version that bijali sarkar had seen the accused coming out of the house and started saying that accused had killed her children therefore was not correct and in any case not safe to place reliance. extra judicial confession even otherwise is considered weak evidence and it is settled law that as far as possible, the court should be told what the accused had said. besides, in so far as the extra judicial confession made later was concerned, we think that there was no extra judicial confession at all because some of the prosecution witnesses in their earlier statements and some later had clearly admitted that after the accused had been detained by satindra das he had been tied up and in that condition was taken to the place of occurrence where he was kept tied in such condition until police had arrived when he was taken into custody. it was for the prosecution to establish by reliable evidence motive on the part of the accused, in case the prosecution considered it necessary to bring home the charge against the accused, but in the absence of any worthwhile evidence no such inference that sudhir sarkar had such motive could legitimately be drawn. 18. for the aforesaid reasons, we are satisfied that the learned trial court had committed grave error in convicting the accused. srivastava, j.1. this appeal is directed against the judgment and order dated 16-2-1985 passed by the learned additional sessions judge, south tripura, whereby the appellant was convicted under section 302 i.p.c. and sentenced to imprisonment for life.2. the prosecution case briefly was that one ranjit sarkar on his death had left some land and appellant sudhir, his brother narayan and sister arati from his first wife, and three daughters and one son from his second wife bijali sarkar who was in possession of the land. the appellant and his brother narayan were engaged as labour by chinta haran informant and his brother. on 21-8-1983 bijali sarkar had gone for work, leaving at the house her daughter jhunu, 5 years old and son ranjit three years old. the appellant had committed murder of said two children by throttling. bijali on return from work had seek the appellant going out and found the children dead, raised alarm and people came including chinta haran sarkar who later lodged the f.i.r. at p.s. r.k. pur at about 7.20 p.m. the same day. meanwhile, sudhir sarkar had been apprehended by people in the village and had made extra judicial confession. the police registered case and investigation followed. the investigating officer subash singha arrived at the place of occurrence and sudhir was taken into police custody. the dead bodies were sent for postmortem examination. the witnesses were interrogated. the investigation completed, charge sheet was filed. the learned district judge framed charge under section 302 ipc against the accused, who pleaded not guilty. the defence denied the allegations.3. in support of the charge the prosecution examined twenty three witnesses including p.w.-1 chinta haran sarkar who had lodged the f.i.r. p.w.-17 bijali sarkar mother of the children killed besides many witnesses to prove the extra judicial confession. the defence did not examine any witness. the version in defence was that the accused appellant had been falsely implicated. the learned additional sessions judge on consideration of the evidence held that the prosecution had established the charge against the accused, who was accordingly convicted and sentenced as stated earlier.4. aggrieved, the convicted accused has come in appeal and shri a. k. bhowmik, learned counsel appearing on his behalf has submitted that there was no eye-witness to the occurrence, the circumstances of motive and opportunity were not established and the extra judicial confession was not a confession in any case was not voluntary and accordingly impugned conviction and sentence cannot be sustained and should be set aside.5. shri k. n. bhattacharjee, learned public prosecutor has supported the judgments and order of the learned trial court.6. we have carefully considered the submissions and the evidence on record.7. sudhir accused at the time of occurrence was about 15 years of age and was living in the same village and was doing same work as labour in the houses of some persons. his elder brother narayan was also similarly working as labour.8. p.w.-14 dr. gautam roy choudhury who conducted post mortem examination on the dead bodies of jhunu and ranjit deceased testified that the cause of death was throttling. the defence has not disputed the cause of their death. it was therefore established that the two children were murdered.9. the question to be considered is that whether sudhir accused (hereinafter referred as sudhir) appellant had caused their death.10. there was no eye witness of the actual occurrence.11. the prosecution has relied upon circumstances and extra judicial confession.12. as to circumstances it was said that the motive was property inherited from his father, the appellant had been seen coming out of the house of bijali sarkar (pw-17) who had asked about the children but sudhir did not reply and upon entering the house she had found the two children lying dead, that bijali sarkar immediately had raised alarm and had told people who came out that sudhir had killed her children that thereafter sudhir was apprehended by pw-2 sri satindra das and taken in his house where he had made extra judicial confession that he had killed the two children, that sudhir had made similar extra judicial confession before the people of the village when he had been taken to the place of occurrence.13. before the above circumstances are considered it may be noted that pw-2 satindra das testified that after he had learnt about the killing from chinta haran who had borrowed cycle from him, he found sudhir going by the side of his house. on seeing sudhir he asked him where he was going, whereupon sudhir said that his brother and sister had been killed and he was going to inform the police, then he told sudhir that he need not go to udaipur as his guardians like chintaharan sarkar, lalit sarkar and krishna sarkar could do that job. the above fact brought out in the evidence of pw-2 satindra das relating to the conduct of the accused, that he was then proceeding to inform the police, is also an important circumstance to be taken into consideration while assessing the prosecution evidence against the accused.14. shri a. k. bhowmik, learned counsel for the appellant has submitted that the version of bijali sarkar that she had seen sudhir coming out of the house that she had asked him about her children and had got no reply was an after thought and development, obviously and clearly to implicate sudhir. shri bhowmik has further submitted that the prosecution version in the evidence of bijali sarkar, which has been repeated by other prosecution witnesses that she had immediately thereafter stated to everyone who came there that sudhir had killed her children was also an after-thought and development for the same purpose.15. as pw-17 bijali sarkar has deposed in support of the prosecution version. on careful scrutiny and consideration of her statement, we have not found it reasonably safe to accept that what she had stated before the court was correct, for she had not made any such statements during investigation to the investigating officer, that she had seen sudhir coming out from the veranda of her hut as no such statements had been found in her statement under section 161 of the code of criminal procedure by the learned trial court. besides, it appears that the version then was that some unkonwn persons had caused the death. pw-2 sachchindra das had during investigation said that chinta haran when he had gone to take cycle had told him that the children were killed by throttling by unknown persons, even though he also said that he suspected sudhir, ex. d2 pw. ranga mia also had told that the i.o. that on going to their house he came to learn that some unknown people had throttled the son and daughter of ramani sarkar. ex.-d4. the above noted witnesses at the trial had supported the prosecution version but it was clear that their version of the trial was an improvement. the version that bijali sarkar had seen the accused coming out of the house and started saying that accused had killed her children therefore was not correct and in any case not safe to place reliance. in the fir no such version was given that bijali sarkar had been saying that sudhir had killed her children. moreover, it appears that in this case the statement of some of the prosecution witnesses had also been record earlier by the learned trial court and for some reasons, the same witnesses had been again examined later by the trial court. this version does not find place in their statement recorded earlier by the trial court. even pw. chinta haran who lodged the f.i.r. had not said in his statement recorded as p.w.-1 (page 5 of the paper book) that bijali sarkar had seen sudhir. pw-2 pratap ch. sarkar who was later examined as pw-7, in his earlier statement which is at page-10 of the paper book, had not said when he had gone to the place of occurrence bijali sarkar had said any such thing. we, therefore, think that the prosecution had not established that bijali sarkar had seen sudhir sarkar coming out of the house. the prosecution relied upon pw-18 barun sarkar, a boy 11 years of age who said that when he was playing in his courtyard, he had seen sudhir sarkar was walking in the courtyard of ramani sarkar. this circmstance even if considered, established in our opinion was not significant because sudhir sarkar belonged to the same village ganga chhera and there was nothing inherently suspicious about his being at the place earlier in the day.16. the prosecution version of extra judicial confession having been made in our opinion is not acceptable for the reasons, that the prosecution has not led any evidence at all as to what the accused had said, all that the witnesses said was that when they had asked why he had killed the children he had confessed. extra judicial confession even otherwise is considered weak evidence and it is settled law that as far as possible, the court should be told what the accused had said. in the present case there was no such evidence at all i.e. what he had said has not been stated by any witness. we may only refer to the statement of pw-2 satindra das. he said 'thereafter lalit sarkar came to my house. then we took the accused sudhir to my hut. then lalit sarkar asked accused sudhir why he has killed his step brother and sister and the accused sudhir confessed before us that he has killed ranjit and jhuna by throttling. 'all the prosecution witnesses had stated on that same lines. it should consequently be clear that the basic requirement for proving extra judicial confession had not been fulfilled in this case. besides, in so far as the extra judicial confession made later was concerned, we think that there was no extra judicial confession at all because some of the prosecution witnesses in their earlier statements and some later had clearly admitted that after the accused had been detained by satindra das he had been tied up and in that condition was taken to the place of occurrence where he was kept tied in such condition until police had arrived when he was taken into custody. the accused appellant was kept in tied up condition and he was only about 14 or 15 years of age, when he is said to have been made the confession. we cannot accept that the statement was made voluntarily. pw-2 sachchindra das had said that sudhir had told him that he was going to inform the police but was stopped. we, therefore, think that the learned trial court committed grave error in having placed reliance on such evidence of extra juidicial confession.17. in so far as motive was concerned, there was hardly any evidence for the prosecution that any time earlier sudhir had raised any question or any dispute regarding inheritance in the property of ramani sarkar. as son along with other heirs of ramani sarkar accused appellant also had share in the property and as such in our opinion, there was hardly any motive on the part of the accused to commit the murder with which he was charged. shri k.n. bhattacharjee, learned public prosecutor has submitted that the accused was a fifteen year old boy in a village and may be according to his understanding in that regard, he had caused the death of said children. we are unable to accept this submission. it was for the prosecution to establish by reliable evidence motive on the part of the accused, in case the prosecution considered it necessary to bring home the charge against the accused, but in the absence of any worthwhile evidence no such inference that sudhir sarkar had such motive could legitimately be drawn.18. for the aforesaid reasons, we are satisfied that the learned trial court had committed grave error in convicting the accused. the conviction and sentence of the appellant have to be set aside.19. this appeal is allowed. the conviction and sentence of the appellant passed by the learned additional sessions judge are set aside. the accused appellant is acquitted of the charge under section 302, i.p.c. he is on bail, his bail bonds are discharged.

Judgment:

Srivastava, J.

1. This appeal is directed against the judgment and order dated 16-2-1985 passed by the learned Additional Sessions Judge, South Tripura, whereby the appellant was convicted under Section 302 I.P.C. and sentenced to imprisonment for life.

2. The prosecution case briefly was that one Ranjit Sarkar on his death had left some land and appellant Sudhir, his brother Narayan and sister Arati from his first wife, and three daughters and one son from his second wife Bijali Sarkar who was in possession of the land. The appellant and his brother Narayan were engaged as labour by Chinta Haran informant and his brother. On 21-8-1983 Bijali Sarkar had gone for work, leaving at the house her daughter Jhunu, 5 years old and son Ranjit three years old. The appellant had committed murder of said two children by throttling. Bijali on return from work had seek the appellant going out and found the children dead, raised alarm and people came including Chinta Haran Sarkar who later lodged the F.I.R. at P.S. R.K. Pur at about 7.20 P.M. the same day. Meanwhile, Sudhir Sarkar had been apprehended by people in the village and had made extra judicial confession. The police registered case and investigation followed. The Investigating Officer Subash Singha arrived at the place of occurrence and Sudhir was taken into police custody. The dead bodies were sent for postmortem examination. The witnesses were interrogated. The investigation completed, charge sheet was filed. The learned District Judge framed charge under Section 302 IPC against the accused, who pleaded not guilty. The defence denied the allegations.

3. In support of the charge the prosecution examined twenty three witnesses including P.W.-1 Chinta Haran Sarkar who had lodged the F.I.R. P.W.-17 Bijali Sarkar mother of the children killed besides many witnesses to prove the extra judicial confession. The defence did not examine any witness. The version in defence was that the accused appellant had been falsely implicated. The learned Additional Sessions Judge on consideration of the evidence held that the prosecution had established the charge against the accused, who was accordingly convicted and sentenced as stated earlier.

4. Aggrieved, the convicted accused has come in appeal and Shri A. K. Bhowmik, learned counsel appearing on his behalf has submitted that there was no eye-witness to the occurrence, the circumstances of motive and opportunity were not established and the extra judicial confession was not a confession in any case was not voluntary and accordingly impugned conviction and sentence cannot be sustained and should be set aside.

5. Shri K. N. Bhattacharjee, learned Public Prosecutor has supported the judgments and order of the learned trial court.

6. We have carefully considered the submissions and the evidence on record.

7. Sudhir accused at the time of occurrence was about 15 years of age and was living in the same village and was doing same work as labour in the houses of some persons. His elder brother Narayan was also similarly working as labour.

8. P.W.-14 Dr. Gautam Roy Choudhury who conducted post mortem examination on the dead bodies of Jhunu and Ranjit deceased testified that the cause of death was throttling. The defence has not disputed the cause of their death. It was therefore established that the two children were murdered.

9. The question to be considered is that whether Sudhir accused (hereinafter referred as Sudhir) appellant had caused their death.

10. There was no eye witness of the actual occurrence.

11. The prosecution has relied upon circumstances and extra judicial confession.

12. As to circumstances it was said that the motive was property inherited from his father, the appellant had been seen coming out of the house of Bijali Sarkar (PW-17) who had asked about the children but Sudhir did not reply and upon entering the house she had found the two children lying dead, that Bijali Sarkar immediately had raised alarm and had told people who came out that Sudhir had killed her children that thereafter Sudhir was apprehended by PW-2 Sri Satindra Das and taken in his house where he had made extra judicial confession that he had killed the two children, that Sudhir had made similar extra judicial confession before the people of the village when he had been taken to the place of occurrence.

13. Before the above circumstances are considered it may be noted that PW-2 Satindra Das testified that after he had learnt about the killing from Chinta Haran who had borrowed cycle from him, he found Sudhir going by the side of his house. On seeing Sudhir he asked him where he was going, whereupon Sudhir said that his brother and sister had been killed and he was going to inform the police, then he told Sudhir that he need not go to Udaipur as his guardians like Chintaharan Sarkar, Lalit Sarkar and Krishna Sarkar could do that job. The above fact brought out in the evidence of PW-2 Satindra Das relating to the conduct of the accused, that he was then proceeding to inform the police, is also an important circumstance to be taken into consideration while assessing the prosecution evidence against the accused.

14. Shri A. K. Bhowmik, learned counsel for the appellant has submitted that the version of Bijali Sarkar that she had seen Sudhir coming out of the house that she had asked him about her children and had got no reply was an after thought and development, obviously and clearly to implicate Sudhir. Shri Bhowmik has further submitted that the prosecution version in the evidence of Bijali Sarkar, which has been repeated by other prosecution witnesses that she had immediately thereafter stated to everyone who came there that Sudhir had killed her children was also an after-thought and development for the same purpose.

15. As PW-17 Bijali Sarkar has deposed in support of the prosecution version. On careful scrutiny and consideration of her statement, we have not found it reasonably safe to accept that what she had stated before the court was correct, for she had not made any such statements during investigation to the Investigating Officer, that she had seen Sudhir coming out from the veranda of her hut as no such statements had been found in her statement under Section 161 of the Code of Criminal Procedure by the learned trial court. Besides, it appears that the version then was that some unkonwn persons had caused the death. PW-2 Sachchindra Das had during investigation said that Chinta Haran when he had gone to take cycle had told him that the children were killed by throttling by unknown persons, even though he also said that he suspected Sudhir, Ex. D2 PW. Ranga Mia also had told that the I.O. that on going to their house he came to learn that some unknown people had throttled the son and daughter of Ramani Sarkar. Ex.-D4. The above noted witnesses at the trial had supported the prosecution version but it was clear that their version of the trial was an improvement. The version that Bijali Sarkar had seen the accused coming out of the house and started saying that accused had killed her children therefore was not correct and in any case not safe to place reliance. In the FIR no such version was given that Bijali Sarkar had been saying that Sudhir had killed her children. Moreover, it appears that in this case the statement of some of the prosecution witnesses had also been record earlier by the learned trial court and for some reasons, the same witnesses had been again examined later by the trial court. This version does not find place in their statement recorded earlier by the trial court. Even PW. Chinta Haran who lodged the F.I.R. had not said in his statement recorded as P.W.-1 (page 5 of the Paper book) that Bijali Sarkar had seen Sudhir. PW-2 Pratap Ch. Sarkar who was later examined as PW-7, in his earlier statement which is at page-10 of the Paper Book, had not said when he had gone to the place of occurrence Bijali Sarkar had said any such thing. We, therefore, think that the prosecution had not established that Bijali Sarkar had seen Sudhir Sarkar coming out of the house. The prosecution relied upon PW-18 Barun Sarkar, a boy 11 years of age who said that when he was playing in his courtyard, he had seen Sudhir Sarkar was walking in the courtyard of Ramani Sarkar. This circmstance even if considered, established in our opinion was not significant because Sudhir Sarkar belonged to the same village Ganga Chhera and there was nothing inherently suspicious about his being at the place earlier in the day.

16. The prosecution version of extra Judicial confession having been made in our opinion is not acceptable for the reasons, that the prosecution has not led any evidence at all as to what the accused had said, all that the witnesses said was that when they had asked why he had killed the children he had confessed. Extra judicial confession even otherwise is considered weak evidence and it is settled law that as far as possible, the court should be told what the accused had said. In the present case there was no such evidence at all i.e. what he had said has not been stated by any witness. We may only refer to the statement of PW-2 Satindra Das. He said 'Thereafter Lalit Sarkar came to my house. Then we took the accused Sudhir to my hut. Then Lalit Sarkar asked accused Sudhir why he has killed his step brother and sister and the accused Sudhir confessed before us that he has killed Ranjit and Jhuna by throttling. 'All the prosecution witnesses had stated on that same lines. It should consequently be clear that the basic requirement for proving extra judicial confession had not been fulfilled in this case. Besides, in so far as the extra judicial confession made later was concerned, we think that there was no extra judicial confession at all because some of the prosecution witnesses in their earlier statements and some later had clearly admitted that after the accused had been detained by Satindra Das he had been tied up and in that condition was taken to the place of occurrence where he was kept tied in such condition until police had arrived when he was taken into custody. The accused appellant was kept in tied up condition and he was only about 14 or 15 years of age, when he is said to have been made the confession. We cannot accept that the statement was made voluntarily. PW-2 Sachchindra Das had said that Sudhir had told him that he was going to inform the police but was stopped. We, therefore, think that the learned trial court committed grave error in having placed reliance on such evidence of extra juidicial confession.

17. In so far as motive was concerned, there was hardly any evidence for the prosecution that any time earlier Sudhir had raised any question or any dispute regarding inheritance in the property of Ramani Sarkar. As son along with other heirs of Ramani Sarkar accused appellant also had share in the property and as such in our opinion, there was hardly any motive on the part of the accused to commit the murder with which he was charged. Shri K.N. Bhattacharjee, learned Public Prosecutor has submitted that the accused was a fifteen year old boy in a village and may be according to his understanding in that regard, he had caused the death of said children. We are unable to accept this submission. It was for the prosecution to establish by reliable evidence motive on the part of the accused, in case the prosecution considered it necessary to bring home the charge against the accused, but in the absence of any worthwhile evidence no such inference that Sudhir Sarkar had such motive could legitimately be drawn.

18. For the aforesaid reasons, we are satisfied that the learned trial Court had committed grave error in convicting the accused. The conviction and sentence of the appellant have to be set aside.

19. This appeal is allowed. The conviction and sentence of the appellant passed by the learned Additional Sessions Judge are set aside. The accused appellant is acquitted of the charge under Section 302, I.P.C. He is on bail, his bail bonds are discharged.