HIGH COURT OF TRIPURA AGARTALA CRL.A.(J)15 of 2016 Shri [ENTITY], son of late Sarpojoy Reang, resident of Village-Lungthir, P.O. Khedachhera, P.S. Bhangmun, District : North Tripura Appellant(s) Versus The [ENTITY] Respondent(s)
For Appellant(s) : Mr. [ENTITY], Adv. For Respondent(s) : Mr. [ENTITY], Addl. P.P. Date of hearing : 01.11.2019 Date of Judgment & Order : 04.12.2019 Whether fit for reporting : YES BEFORE HON'BLE MR. JUSTICE S. TALAPATRA HON'BLE MR. JUSTICE ARINDAM LODH Judgment & Order ([ENTITY], J)
The murder of one Evangelist priest namely [ENTITY] led to the prosecution against the appellant namely [ENTITY] who was consequently upon the police report charged under [SECTION] of the [ACT] and after regular trial, he was convicted for causing murder of [ENTITY] on 08.09.2002 at 10 p.m. at Lungthrick under Vangmun Police Station.
2. Pursuant to the said judgment of conviction, the appellant has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/- with default stipulation. By means of this appeal, the finding of conviction and the order of sentence are challenged.
3. The genesis of the prosecution is rooted in the written complaint on 09.09.2002 [Exbt.3] lodged by one [ENTITY] [PW-5], the community Chieftain revealing that in the house of [ENTITY] [PW-3], there was a prayer meeting on 08.09.2002 at about 10 p.m. During that time, [ENTITY] [the appellant], suddenly, entered in the prayer meeting and started quarreling with his wife Smt. [ENTITY] [PW-1]. [ENTITY] had altercation with [ENTITY] [the deceased]. Succumbing to those injuries, from the assault of the appellant which he had unleashed around that time [ENTITY] [the deceased] died on the spot. Based on the said written complaint [Exbt.3], Vangmun P.S. [CASE NUMBER] was registered under [SECTION] of the [ACT] and taken up for investigation. On completion of the investigation, the final police report was filed sending up the appellant for facing the trial for committing murder of [ENTITY]. The charge was accordingly framed against the appellant under [SECTION] of the [ACT] to which the appellant pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge, the prosecution adduced as many as 10(ten) witnesses including the eye witness Smti. [ENTITY] [PW-1], Sri [ENTITY] [PW-5] who lodged the complaint, the doctor who conducted the postmortem [PW-10] and the Investigation Officers [PWs-8 & 9]. After recording the prosecution evidence, the appellant was examined under [SECTION] of the [ACT] During that examination, the appellant reiterated his plea of innocence, by stating that the incriminating materials were manipulated and fabricated to persecute him. No evidence was adduced in order to defend the appellant. As such, after appreciating the prosecution evidence, both oral and documentary, the trial Judge convicted the appellant under [SECTION] of the [ACT]. Being aggrieved by that finding, as stated, the present appeal has been preferred.
5. Mr. [ENTITY], learned counsel appearing for the appellant has succinctly stated that the finding of conviction cannot stand the scrutiny of law, inasmuch as, the place of occurrence has remained unascertained and there are three sets of statements in respect of three different places of occurrence. The purported extra-judicial confession made to Sri [ENTITY] [PW-5], according to Mr. [ENTITY], learned counsel is an act of afterthought, designed by the police, and the story of the extra judicial confession has been planted to derive a tangible result, inasmuch as, even though, PW-5, to whom the said extra-judicial confession was made, did not give any reference or did not state anything when he filed the complaint [Exbt.3], but it is apparent from the records.
There cannot be any amount of doubt that the extra-judicial confession was made according to PW-1, immediately after the occurrence, but that fact did not find reflection in the written complaint [Exbt.3].
6. Mr. [ENTITY], learned counsel has further submitted that the prosecution case has been visited by serious doubts and as such, the judgment of conviction as stated above cannot be sustained.
7. In order to nourish his submission, Mr. [ENTITY], learned counsel has relied on few decisions of the apex court in respect of proof of place of occurrence. In [PRECEDENT] the apex court has observed that the situs of crime is very relevant in determining the truthfulness of the prosecution's case and if there is inconsistency about the place of occurrence in the testimony of witnesses and the doubt creep in and after the blood stained earth was claimed to have been seized from the place of occurrence by the Investigating Officer, that should be sent for chemical examination for having the additional inputs of matching the blood group of the deceased or the injured with that of the blood group available on the earth. But if the blood-stain is not collected or is not sent for chemical examination which could have been aid to determine the situs of crime, that would be fatal for the prosecution case. In almost all criminal cases, the blood-stained earth collected from the place of occurrence, is invariably sent for the chemical examination and the report along with the earth is produced in the trial. In [ENTITY]) the blood-stained earth was not sent for chemical examination. That aspect was taken serious note of by the apex court and acquitted the accused on benefit of doubt.
8. Mr. [ENTITY], learned counsel has continued to submit that the police officer met [PW-1] several times starting from the very day when the occurrence was noticed. But it has appeared from the records that even though, the occurrence took place on 08.09.2002 at about 10 p.m. at night and the information was lodged on 09.09.2002 at about 2.35 p.m. in the afternoon. PW-1, the solitary witness who claimed to have witnessed the occurrence was examined by PW-9 on 03.01.2002, almost after three months. Belated recording of the statement of the solitary eye witness creates doubt in respect of the occurrence the statement made by PW-1. The doubt springs out from the apprehension whether she had been tutored to fit her in the case of the police. In this regard, Mr. [ENTITY], learned counsel has placed his reliance in [PRECEDENT] where the apex court has observed as follows :
"12. It is expected that in a case involving death of a person, the investigating officer would have visited the place of occurrence immediately. If that be so, it is also expected that the statement of witness who were present would be recorded.
13. We fail to see any reason whatsoever as to why the statement of P.W.3 was no recorded on the date of occurrence and in any event, within a reasonable time. If [ENTITY]-P.W.3 is to be believed he was in constant touch with the investigating officer. If that be so, it betrays all reasons as to why he was examined after only six weeks."
9. So far the extra judicial confession is concerned, Mr. [ENTITY], learned counsel has relied on [PRECEDENT] where the apex court has restated the law as under :
"13. Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra- judicial confession is voluntary, it can be acted upon to base the conviction. Considering the admissibility and evidentiary value of extra-judicial confession, after referring to various judgments, in [PRECEDENT], this Court held as under:
15.1. In [PRECEDENT] this Court stated the principle that:
10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in [PRECEDENT] stated the principle that:
19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.
The Court further expressed the view that:
19. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the Accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the Accused
15.6. Accepting the admissibility of the extra-judicial confession, the Court in [PRECEDENT] held that:
29. There is no absolute Rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [[PRECEDENT], [PRECEDENT], Sivakumar v.
State By Inspector of Police: (2006) 1 SCC 714 (SCC paras 40 and 41: AIR paras 41 and 42), [PRECEDENT] and Mohd. Azad alias Shamin v. State of W.B.:
(2008) 15 SCC 449]
14. It is well settled that conviction can be based on a voluntarily confession but the Rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra-judicial confession of Accused need not in all cases be corroborated. In [PRECEDENT], this Court after referring to Piara Singh and Ors.v.
State of Punjab: (1977) 4 SCC 452 held that the law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. The Rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated."
[Emphasis added]
10. In [PRECEDENT], the apex court has enunciated the law by stating as under :
"9. It is true that an extra judicial confession is used against its maker but as a matter of caution, advisable for the Court to look for a corroboration with the other evidence on record. In [PRECEDENT], this court while dealing with extra judicial confession held that extra judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction. In the instant case, it may be noticed that there are no additional cogent circumstances on record to rely on it. At the same time, [ENTITY] (PW3), while recording his statement under [SECTION] [ACT], has not made such statement of extra judicial confession(Exh.D5) made by accused [ENTITY]. In addition, there are no other circumstances on record to support it."
[Emphasis added]
11. Further, in Chakarai @ Chakaravarthi versus State Rep. by Inspector of Police [judgment dated 08.01.2019 delivered in [CASE NUMBER]], the apex court having referred to [PRECEDENT] have observed that the extra-judicial confession placed on record can be relied for a very limited evidentiary purpose. Even if the extra- judicial confession is to be believed, it would be unsafe to convict the accused and award life imprisonment to him based on the sole circumstance of an extra-judicial confession, more particularly when all the other circumstances remain unproved.
12. Mr. [ENTITY], learned counsel has categorically stated that the investigation went disarray and those are not mere laches in the prosecution, but it appears that the truth has been suppressed during the investigation. Even though, PW-1 has categorically stated that the occurrence took place in the Church-house, but in the site map, no Church has been indexed.
13. Mr. [ENTITY], learned Addl. P.P. appearing for the state has in response to the submission of Mr. [ENTITY], learned counsel appearing for the appellant has categorically contended that there is no reason to disbelieve PW-1 or to discard the extra-judicial confession made by the accused [the appellant herein] to PW-5. The extra-judicial confession as made by the accused to PW-5 has been corroborated by PW-1. That apart, there is no doubt that the death of [ENTITY], as it appears from the postmortem report, occurred by CRF following brain hemorrhage in the right temporal lobe of the brain from forceful impact of heavy blunt object on the temporal region of the head [right side]. That opinion also corroborates the statement of PW-1. There are some insignificant variations in the testimony of the witnesses but those are not substantive to debase the prosecution case. As, in the course of submission, when Mr. [ENTITY], learned counsel appearing for the appellant has pointed out that the police officers appeared first in the place of occurrence, was not examined in the trial, Mr. [ENTITY], learned Addl. P.P. appearing for the state has stated that [ENTITY], Sub-Inspector of Police has not investigated any part, he had only registered the case having received the complaint in writing.
14. Mr. [ENTITY], learned Addl. P.P. has further stated that according to the investigating officer, the place of occurrence is in the house of [ENTITY] and as such, there cannot be any confusion regarding the place of occurrence as PW-8 [the Investigating Officer] has categorically stated as under :
"The place of occurrence is the house of [ENTITY]. I have not shown road, path etc near the house of said [ENTITY]. The village people brought the dead body in the Vungmung hospital."
PW-8, has stated significantly that he did not record the statement of PW-1 due to shortage of time. But he found her around the place of occurrence.
15. Mr. [ENTITY], learned Addl. P.P. has contended that the prosecution has well proved the charge beyond reasonable doubt and as such, no interference is warranted of the judgment of conviction or the order of sentence.
16. For purpose of appreciating the submissions of the learned counsel for the parties, it is essentially required that this court should appreciate the evidence independently.
17. PW-1, Smt. [ENTITY] is the solitary witness who claimed to have seen the transaction which caused the murder of the said evangelist priest. It is verified from the record that her statement was recorded by the Investigating Officer, PW-9 for the first time on 03.01.2003, whereas the occurrence took place on 08.09.2002 and PW-8, the first Investigating Officer has categorically stated that he had met PW-1 in the first day when he visited the situs of crime. PW-1 has stated that the appellant is her husband and PW-5 [Sri [ENTITY]] is known to her as the Community Chieftain. On 08.09.2002, at about 10 p.m., when she was at her dwelling hut, a meeting was going on in the nearby Church. At that time, her husband [the appellant] came home, reviewed and assaulted her alleging inter ali :
"She had an elicit relation with [ENTITY] [the deceased], an evangelist. At that time, the appellant was armed with a pistol purchased from [ENTITY]. Subsequently, "her husband brought [ENTITY] "after assault and by pulling him to my courtyard. He assaulted said [ENTITY] by lathi in our courtyard in my presence. In the meantime some people gathered and abstained him and also took him away. After about 2 hours the village people came to their house and stated that said [ENTITY] died due to the assault of my husband. Hearing this, my husband told me that I ought to make false statement to the effect that the said [ENTITY] caused harm to me and it was seen by my husband. The accused took me in the house of the [ENTITY], [ENTITY] at the point [of] pistol and on threat that in case I failed to tell the same before the Reang I shall be killed by pistol lying with him. Being afraid of accused I made such false statement. Subsequently police was informed and arrived in our village on the following day and the dead body was taken away."
Thereafter, she has stated that she had no relation with [ENTITY]. On arrival of the police, they asked her about the occurrence. In the cross examination, when she was confronted on whether the statement that she made in the trial was made to the police officer, she has stated that she had made such statement but when her previous statement was shown, she could not find such statement.
18. PW-9, [ENTITY] has in his short version in the trial has admitted that he had examined PW-1 and collected the postmortem examination report [Exbt.7]. In the cross examination, he has made the following statement :
"She stated to me that she had seen the occurrence of killing/assaulting of the deceased monk. I have recorded the statement to the effect that the accused brought the deceased by pulling from the house and assaulted him by lathi. He was brought out by pulling from the Christian church. But I have not specifically mentioned the house belongs to whom. She belongs to Christian community."
PW-9 has categorically admitted that the place where the said occurrence took place or seen by PW-1 has not been recorded in the statement of PW-1.
19. PW-5, Sri [ENTITY] the informant who is a community leader has stated thus :
"In the month of September, 2002 in the early part at night following Sunday I was in my house. At that time accused [ENTITY] came to my house and told that he has killed a monk namely [ENTITY]."
Thereafter, he had stated that he could do whatever he liked. The appellant, [ENTITY] had stated that the monk had illicit relation with his wife so he had killed him. PW-5 had reported the occurrence to the police. He has admitted that written ejahar [Exbt.3] was lodged to the Officer-in-Charge Vangmun Police Station on 09.09.2002 at 14.30 hrs. PW-5 has further stated that the appellant had confessed that he caught the accused from the church house and killed him. At that time his wife went to meet him. The monk was displaced person. In the cross-examination, he has stated that he had heard that [ENTITY] was killed on the road.
20. PW-2, Sri [ENTITY] is a hearsay witness, but he found the dead body of [ENTITY] near the house [ENTITY] [PW-4]. As he has not disclosed from whom he heard that since the wife of [ENTITY] had illicit relation with the deceased and being enrage, the appellant killed him, that part is in-admissible. In the cross-examination, he has made the following statement :
"I learnt that the wife of the accused fell in love [affairs] with the deceased and I learnt it from the said lady. There is no electricity in our area. At that time we all about 25 persons gathered there. I cannot remember of all of the said persons or any of them due to darkness of night."
He denied the suggestion questioning his presence.
21. PW-3, Sri [ENTITY] has stated that on 08.09.2002, the appellant assaulted [ENTITY] in the church by fist and blow. Seeing the incident, he fled away. Subsequently, he saw the dead body of [ENTITY] near the house of [ENTITY] on the road. As the witness, he signed over the inquest report [Exbt.1] and the seizure list of wearing apparels of the deceased [Exbt.2]. On the next morning, he found the dead body lying and around it, the local people gathered there. But he categorically stated as follows :
"I did not see the occurrence of beating by the accused to the deceased in the church house. Exbt. 1 and 2, inquest report and seizure list was not read over to me before my signing."
22. PW-4, Sri [ENTITY] did not state anything in the trial relating to the occurrence.
23. PW-6, Smti. [ENTITY] stated that on 10.09.2002, she saw the dead body and signed on the inquest report [Exbt.1] as the witness. She has stated that from the police, she heard that appellant killed the monk. But she has stated that she signed on the inquest report on 13.09.2002.
24. PW-7, Sri [ENTITY] has stated that on 10.09.2002, the dead body of the monk was brought to Vangmun Hospital and he was called by the police when he was proceeding to the block office. As the witness, he signed over the inquest report [Exbt.1]. But he has also stated that what was written in the inquest report was not read over to him.
25. PW-8, Sri [ENTITY], the first Investigating Officer has stated that on 09.09.2002, he was posted at Vangmun police station and on that day, he was away from the police station for government duty. Sri [ENTITY], a Sub Inspector of police was in charge of the police station. He had received the ejahar from [ENTITY] [PW-5], and registered the case. On his return in the police station, he took up the investigation of the case. He admitted the hand writing of Sri. [ENTITY] in the trial. He has stated that he endorsed the investigation on the body of FIR on 22.30 hours [of 09.09.2002] and on the following morning i.e. the morning of 10.09.2002, he visited the place of occurrence and prepared the site map with index [Exbts.4 and 5]. After that, he went to the hospital- morgue and prepared the inquest report of the deceased, [ENTITY] [the name of the deceased has been transcribed differently, somewhere as [ENTITY]]. He has also identified the inquest report prepared by him in presence of the witnesses and the seizure list [Exbt.2] by which the wearing apparels were seized in presence of witnesses. The material objects, as stated, were also identified by him. He has stated that he examined [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. He handed over the investigation to [ENTITY], a Sub Inspector of Police on 29.12.2003. He has categorically stated that the place of occurrence was the house of [ENTITY]. The village people brought the dead body to Vangmun hospital. The deceased, according to him, is not the man of their locality. But in the cross-examination, he has clearly admitted that he did not record the statement of the wife of the accused, perhaps due to shortage of time, but he found her in the area or around the place of occurrence.
26. PW-10, Dr. [ENTITY] had conducted the postmortem on the dead body of [ENTITY]. During the postmortem examination, PW-10 had observed as follows :
"I found massive screelling [sic.] over the whole facial region and temporal region (right side of the head). I also found blood clotted in the right ear. I found no other injury. He died due to injury and hemorrhage for assault by blunt object on the head. I submitted my postmortem examination report by typing it by my staff and signed by me. The witness has identified by the P.M. report (Ext.7). His signature is marked Exhibit 7/1 on identification."
In the cross-examination, PW-10 has clearly admitted that he had not prepared the postmortem report in the prescribed form and had not filled necessary particulars mentioned in the prescribed form "for want of any form". Thereafter, he made a curious statement which reads as follows :
"On that day in the Vangmung PHC there was no doctor so I had to conduct the P.M. examination there. I did not see the order of the SDM, Kanchanpur for holding the P.M. examination. As the police station requested me to do the same I presumed that the order of P.M. already obtained from the Magistrate. At the time of P.M. dead body was identified by the police in presence of the relative of the deceased. I have not mentioned the condition of the various parts of the body of the deceased (internal and external). I have mentioned in my report that blood stained in the right ear but not clotted. I have not mentioned the approximate time of death before the P.M. I have not mentioned as to whether the injury was postmortem or antimortem. It is not correct that I have submitted a report which is improper."
27. The prosecution case as it has emerged from the evidence, as recorded in the trial, is wholly dependent on the evidence of PW-1 and PW-5. So far the evidence of other witnesses are concerned, particularly, PWs- 8 and 9, their statements provided the tool to verify the reliability of the evidence of PW-1 and PW-5. PW-9 has categorically stated that the place of occurrence was the house of [ENTITY] [PW-3] and he had accordingly indexed the place of occurrence in the site map and nowhere else. PW-8, the first Investigating Officer has stated that even though he had met PW-1 from the following day of occurrence on umpteen occasions, but he did not record her statement. The very conduct of PW-8 is bound to indicate that for about three months, PW-1 was not considered as the eye witness even by the Investigating Agency. When the investigation was in the final phase, PW-9 had recorded the statement of PW-1 on 03.01.2003 whereas the occurrence took place on 08.09.2003, but he has not given any explanation why PW-1 was not examined before. Such explanation is essential to obviate the doubt that might visit for recording the statement after such a long delay. So far the veracity of the extra judicial confession made to PW-5 by the appellant is concerned the same is again visited by serious doubt, inasmuch as, on 09.09.2002 when PW-5 filed the written complaint [Exbt.3] to the Officer-in-Charge, Vangmun Police Station, he did not mention source of his information to say least of disclosing the confession made by the appellant. A conjoint reading of the testimony and the written complaint would persuade our notice to a basic fact that the "extra judicial confession" was made much before the said complaint [Exbt.3] filed in the police station.
28. It is to be noted that the other witnesses did not see the occurrence. Even though, PW-3 claimed in his Examination-in-Chief that on seeing the appellant assaulting [ENTITY] in the church by fist and blow, he fled away from that place. But in the cross examination, as quoted, he has deviated from that statement by stating that he did not see the occurrence of beating of the deceased by the appellant in the church house.
29. PWs-6 and 7 are not witnesses of occurrence. PWs-8 and 9 are the Investigating Officers. PW-10, the postmortem Doctor has stated that he had not ascertained whether the injury found on the head was postmortem or antimortem. That apart, he has categorically stated that he found no other injury except one on the temporal region [right side of the head]. This statement has caused serious damage to the statement of PW-1 who had stated that [ENTITY] was severely beaten by lathi. There is no trace of any injury of any nature according to PW-10 over the whole body. Thus, the episode of extra judicial confession can hardly be trusted, inasmuch as, PW-5 did not disclose of such extra judicial confession in his complaint. Thus, the possibility of planting a story by the police cannot be excluded. Non- disclosure, in the earliest point of time, creates serious doubt on the extra judicial confession. Even, PW-1 did not support making of the extra judicial confession by the appellant to PW-5. The prosecution has contended that PW-1 was present at the time of making such extra judicial confession. Thus, there is no other evidence except PW-1. PW- 1 has stated that the meeting was going on in the nearby church and at that time the appellant came to home, rebuked her and assaulted her by stating that she had illicit relation with [ENTITY] . Even the appellant had shown a pistol to her. Subsequently, [ENTITY] was assaulted in the church, which incident she did not see and she did not disclose the source of her knowledge. After assault, [ENTITY] was brought to their courtyard. There, as she has stated, [ENTITY] was beaten by lathi. She made a significant statement that some people gathered in their courtyard and abstained him [the appellant] and took him [[ENTITY]] away. After about two hours, the village people came to their house [around 0001 hrs.] of 09.09.2002 and reported that [ENTITY] had expired.
30. The prosecution could not find any of such villagers to testify in support of the prosecution case. Even, PW-1 did not name anyone. PW-5 in his written complaint [Exbt.3] has stated that the dead body was lying in the church house area. In the complaint that place has been identified as the place of occurrence, not the courtyard of the appellant or PW-1. But in the cross examination, he has categorically stated that "I heard that he was killed on the road." From the statements of PW-1 and PW-5, it has emerged that there is no certainty about the place of occurrence. Three places of occurrence have been referred by those witnesses, viz. the church house area, the courtyard of house of PW-1 or the appellant and the roadside. The police has only accepted the church house area as the place of occurrence [see the site map], [Exbt.4]. According to PW-8, the Investigating Officer, the house of [ENTITY] [PW-3] is the place of occurrence which does not fall in the places of occurrence as mentioned by the PWs- 1 and 5. The possibility that has emerged that the Investigating Officers has introduced a story, which is completely new, through PW-1 and PW-5, as no explanation was given why PW-1 was examined after such a long delay and in the circumstances, as narrated above, it will be unsafe to rely on the testimony of PW-1, in particular. The so called extra-judicial confession cannot also be relied on as PW-5 did not disclose the episode of extra-judicial confession when he lodged the written complaint to the Officer-in-Charge, Vangmun Police Station. Hence, the appellant is entitled to benefit of doubt.
31. As consequence thereof, the impugned judgment and order of conviction and sentence are interfered with and set aside. The appellant be set at liberty forthwith, if not warranted in any other case.
In the result, the appellant stands allowed.
LCRs be returned.
JUDGE JUDGE [ENTITY]