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2012 Supreme(Gau) 1085
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
T. NANDAKUMAR SINGH AND SWAPAN CHANDRA DAS, JJ.
Barun Debbarma – Appellants
Vs.
State of Tripura – Respondent
Crl. Appeal No. 110 (J) of 2008
Decided On: 13.09.2012
Advocate Appeared
For Appellant/Petitioner/Plaintiff:Mr. R. Datta, Advocate
For Respondents/Defendant: Mr. D. Sarkar, Addl. PP
Headnote:
Arms Act - Section 365 and 27 – Criminal Procedure Code,1973 - Section 161 – Indian Penal Code,1860 - Section 302 read with 34 - kidnapped and recovered empty case - Post-mortem examination - information that a dead body- Appeal filed by appellant-accused is directed against judgment and order passed in convicting appellant-accused for offence punishable under Section 302 read with 34 Indian Penal Code and sentencing appellant-accused to suffer rigorous imprisonment for life and to pay a fine of amount - Held, Trial Court that the victim was under a great shock and was not in a position to make statement cannot be sustained - Neither Trial Court nor the High Court cared to closely examine evidence on record to find out whether there was any evidence on record to prove that appellant was known to PW 6 or that PW 6 had any reason to know his name so as to be able to identify him by name - Explanation furnished by five years after occurrence that she knew appellant because he happened to be son at whose tube well her grandparents resided is unacceptable particularly in view of fact that there is no evidence to establish that she had ever earlier seen appellant and in none of three statements made by her earlier name of is mentioned - Appeal is allowed.
T. Nanda Kumar Singh, J.
1. The present appeal filed by the appellant-accused is directed against the judgment and order dated 23.06.2005 passed in ST 16 (WT/K)/2003 convicting the appellant-accused for the offence punishable under Section 302 read with 34 IPC and sentencing the appellant-accused to suffer rigorous imprisonment for life and to pay a fine of Rs. 3,000 in default of payment of the fine, a simple imprisonment of 3 (three) months. Heard Mr. R. Datta, learned counsel appearing for the appellant-accused and Mr. Sarkar, learned P.P. for the respondent.
2. The prosecution story as unfolded during the trial is briefly noted On 19.04.1996 one Shri Padip Debnath, PW 1, lodged an ezahar to Kalyanpur Police Station that on 19.04.1996 when he was at his house in the morning at about 5 o'clock his father, Bibhuti Bhushan Debnath, S/o. (Lt) Krishnakanta Debnath, aged about 70 years had gone to the western side of their house in order to answer the call of the nature and he heard the cry of his father that "I am being killed". On hearing the said cry, he and his younger brother, Pandav Debnath, PW 4 proceeded to the place where their father was crying. They saw four persons (extremists) forcibly taking their father towards tilla along the lunge-land to the western side of their house. One of the extremists opened fire, then the villagers had searched their father in the adjacent jungle, but they could not trace their father.
On receipt of the ezahar, a criminal case being Kalyanpur P.S. Case No. 16 of 1996 under Section 365 and 27 Arms Act was registered. The case was endorsed to PW 16, Haripada Kar, I.O. for investigation of the case and during the course of investigation, the I.O. prepared hand-sketch-map and index of the place from where the victim, Bibhuti Debnath, was kidnapped and recovered empty case of cartridge from the place of occurrence by preparing seizure memo and the I.O. also examined the available witnesses and recorded their statements under Section 161 CrPC.
3. On 15.05.96 in the morning the I.O. of the case got an information that a dead body of Bibhuti Bhushan Debnath had been lying at Dhupchhera and he rushed to the spot and prepared inquest report of the dead body of the deceased on the spot and arranged for sending the dead body to Kalyanpur PHC for post-mortem examination. Thereafter, Section 302 IPC had been added in the said case. On completion of the investigation, charge sheet under Section 365/ 302 and 27 Arms Act had been submitted against 5 (five) persons, namely (1) Barun Debbarma (present appellant), (2) Binode Debbarma, (3) Ratan Debbarma, (4) Biswajit Debbarma and (5) Malendra Debbarma. The concerned Magistrate had committed the case under 209 CrPC to the Sessions Court as the offences are exclusively triable by the Sessions Courts. The charge was framed against 3 accused, namely Shri Barun Debbarma, Ratan Debbarma and Malendra Debarma under Section 365/ 302 IPC and 27 Arms Act and the appellant-accused denied the charge and claimed for trial.
4. The accused, Malendra Debbarma, was declared absconder. The prosecution, in order to bring home the charge, examined as many as 16 witnesses, namely (1) PW 1 Pradip Debnath, PW 2 Jyotsnamayee Debnath, PW 3 Dilip Debnath, PW 4 Pandav Debnath, PW 5 Ram Ranjan Roy, PW 6 Dilip Nag, PW 7 Puspa Shil, PW 8 Anup Debnath, PW 9 Sukumar Shil, PW 10 Khagendra Debbarma, PW 11 Chan Mohan Rudrapaul, PW 12 Nandalal Gope, PW 13 Shibu Shil, PW 14 Bharat Debbarma, PW 15 Dr. Pranabendu Barman and PW 16 Haripada Kar (S.I.). Out of the 16 witnesses, PW 1, Pradip Debnath, PW 2 Jyotsnamayee Debnath, PW 3 Dilip Debnath and PW 8 Anup Debnath are the sons and wife of the deceased, Bibhuti Bhushan Debnath. The star witness for the prosecution is the PW 8, Anup Debnath. All the important witness are near relatives of the deceased.
5. It is the case of the defence that as all the important witnesses are the near relatives of the deceased, Bibhuti Bhushan Debnath, their stateme
