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2013 Supreme(Gau) 59
IN THE HIGH COURT OF GAUHATI (AGARATALA BENCH)
Utpalendu Bikas Saha and Subhasis Talapatra, JJ.
Harilal Hrishi Das
Vs.
State of Tripura
Crl. Appeal No. 36 (J) of 2010
Decided On: 31.01.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Mr. R. Data, Ms. P. Ghosh and Mr. A. Sen
For Respondents/Defendant: Mr. R.C. Debnath, Addl. PP
Headnote:
Criminal Procedure Code, 1973 - Sections 374 and 161 - Indian Penal Code, 1860 - Sections 302, 376, 109 and 404 - Murder Case - Death - Her parental house and matrimonial house were situated in same village deceased used to reside in her father’s house - She was married but her husband deserted her for which she used to reside in parental house - On day of death her father went to her house and informed her that was missing since evening of that day - They searched but failed to trace her out - On following morning her father informed her that dead body was found in bush of banana plants near their latrine - She rushed to spot and found her sister half-naked blood was oozing out from her vegina and her neck was noosed by a saree which was in her wearing - She also claimed that she had seen mark of cut injury on her neck - Her hands were tied by a rope - Police came afterwards to their house and she lodged ejahar to Officer-in-Charge reduced her oral complaint into writing and after having content read over she put her signature thereon - Police Officer prepared inquest report of dead body in her presence - She identified her signature in inquest report - Held, Hence no explanation is available in evidence - In absence of which evidence of this nature cannot be relied to return judgment of conviction - Even P -W - 8 did not state when P -W - 7 returned at home on night of occurrence to give some credence to his conduct - Rather P -W - 7 has stated that after recovery of dead body of deceased there was a village meeting where he was present but did not disclose anything in that meeting - Even what he stated in court was not stated to investigating officer at time of recording his statement and such omission has been brought on record by defence during cross-examination - Apex Court sounded caution that a great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences or found susceptible to improbabilities one in favour of accused must be accepted - By standard of tests as referred piece of circumstantial evidence has to be discarded - Moreover evidence of P -W - 7 falls in wholly unreliable category inasmuch as shrouding context has not been removed by cogent evidence - Appeal allowed.
Subhasis Talapatra, J.
1. This appeal under Section 374(2) of the Criminal Procedure Code, 1973 (Cr.P.C., in short) is directed against the Judgment of conviction and order of sentence dated 6.1.2000 as passed by the learned Additional Sessions Judge, West Tripura, Agartala in S.T (WT/A) 127 of 1998 whereunder the appellant namely, Sri Harilal Hrishi Das has been convicted and sentence to suffer R.I. for life and a fine of Rs. 5,000/- in default of payment to suffer further R.I. for three months under Section 302 of IPC. He has been further convicted and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 3,000/- in default of payment of fine to suffer further R.I. for two months for the offence committed under Section 376 of IPC. It is required to be noted that by the order dated 06.06.2011, the appeal so far it relates to Sri Madhab Hrishi Das is concerned has been finally disposed of with the observation as follows:
The appeal in respect of appellant No. 1, namely, Madhab Hrishi Das, is allowed to this extent only. The appeal in respect of appellant No. 2, namely, Harilal Hrishi Das be listed for hearing as per its own turn, in Part-II of the cause list for August, 2011.
For purpose of appreciation of the challenge, the essential facts may briefly be noticed at the outset:
One Smt. Arati Hrishi Das (the PW 1)filed a complaint to the Amtali Police Station and disclosed that in the morning of 26.03.1997, in her paternal house, she lodged the ejahar to the Officer-in-Charge of Amtali Police Station stating that her paternal house and her father-in-law's house situated in the same village, Madhuban Hrishi Colony. On 25.03.1997 at about half-past ten at night, her father went to her father-in-law's house and told them that on 25.03.1997 at about 9 O'clock at night, her younger sister, Sarathi while cutting and chopping firewoods sitting in the courtyard of their house, she became traceless. Her whereabout could not be located. Since it was late at night, the informant could not come to her paternal house. At the day break, her father again went to their house and said that Sarathi was lying dead near the banana plants of their house. She came to the father's house without any delay along with her husband and saw Sarathi's dead body. They could gather that one or more than one persons had killed Sarathi by strangulating Sarathi with her 'Sari' that she was wearing.
On the basis of that ejahar, the Amtali P.S. Case No. 18 of 1997 under Sections 302 /109 IPC was initially registered and on completion of the post mortem, Section 376 was added with due leave from the court.
After completion of the investigation, the Investigating Officer on finding a prima facie case having been established filed the charge sheet under Section /302 and 404 of IPC.
On taking cognizance, the case was committed to the court of Sessions as the offence under Section 376 and 302 IPC are exclusively triable by the Court of Sessions. The learned Sessions Court framed the following charge against this appellant and one Madhab Hrishi Das (who has been released by this Court on finding him juvenile undergone the maximum term of detention that can be imposed on a juvenile). The appellant pleaded not guilty and claimed to be tried.
2. To drive the charges home against the appellant, the prosecution examined as many as 16 witnesses and admitted on evidence 11 documents including post mortem examination report.
The informant namely, Arati Hrishi Das deposed in the Court as the P.W. 1, who stated that Sarathi Hrishi Das (the deceased) was her younger sister and she was murdered one and half years back. Her parental house and matrimonial house were situated in the same village. The deceased used to reside in her father's house. She was married but her husband deserted her for which she used to reside in the parental house. On the day of death at about 8 p.m., her father went to her house and informed her that Sarathi was missing since the evening of that
