T. Nandakumar Singh, J
1. The Appellants/accused Uttam Deband Nani Deb @ Nani Gopal Deb @ Sudip Deb faced Sessions Trial No. (NT/K)/1995 in the Court of Sessions Judge, North Tripura, Kailashahar in connection with an occurrence which resulted to the death of Mr. Prabir Debnath. The trial court vide impugned judgment dated 7.2.2005 converted the Appellants/accused under sections, 457, 364 read with Section 34 of the IPC and u/s 302 read with Section 34 of the IPC; vide sentence order dated 9.2.2005 sentenced the Appellants/accused for life and fine of Rs. 2000 each u/s 302, IPC, rigorous imprisonment for five years and a fine of Rs. 1,000 each u/s 364, IPC and rigorous imprisonment for one year and a fine of Rs. 500 etch u/s 457 of the IPC. The present Appellants/accused filed the instant appeal challenging the impugned judgment and sentence.
2. Heard Mr. P.K. Biswas, learned Counsel appearing on behalf of the Appellants/accused and Mr. A. Ghosh, learned Addl. P.P., for the Respondent.
3. The prosecution case in brief is that on 19.12.1991 in the night at about 8 p.m. while the informant, Shri Girindra Debnath (PW1) along with his nephew named Prabir Debnath (deceased) and some others were working inside his dwelling hut, the Appellants/accused, Nani Deb and Uttam Deb of his village had trespassed his house and forcibly dragged out Prabir Debnath (deceased) towards the site of dense forest on the southern side of his house by fastening the neck of the deceased with a cloth ''towel'' in order to kill him; after killing him the accused/ Appellants had kept the dead body concealed in the jungle and absconded thereafter. At the time of abduction of Prabir Debnath (deceased) the informant, Girindra Debnath (PW1) was also assaulted with an iron rod on his head by the accused/Appellant Nani Deb. After abduction of the deceased Prabir Debnath, the informant Girindra Debnath and other persons present in his hut raised hue and cry. On hearing the hue and cry neighbours came to the spot, i.e., at the house of Girindra Debnath; and they narrated the occurrence to them. Thereafter the informant Girindra Debnath (PW1) along with others conducted search to trace out (deceased) Prabir Debnath. During search after about one hour of the incident they found the dead body of Prabir Debnath in the jungle by the side of the river Machlichorra. They also found that the neck of the dead body of Prabir Debnath tied with a ''towel'' and blood was oozing out from his nose. Thereafter, the informant went to Manu Police Station and verbally narrated the incident to the O.C of the P.S. The distance of Manu Police Station from the place of occurrence is about 12 kms. The O.C of Manu P.S. recorded oral FIR of the informant and then read over the same to the informant. After coming to know the contents of the FIR the informant, Girindra Debnath put his left thumb impression on the FIR recorded by the Police Officer. The Police Officer on receipt of the FIR registered Manu P.S. Case No. 9(12)/1991 under Sections 448/364/302/201/34, IPC against the accused/Appellants and two other unknown persons.
After completion of investigation the I.O., submitted charge sheet against the present accused/Appellants and three persons under Sections 448/364/302/201/34, IPC. The learned Chief Judicial Magistrate, North Tripura, Kailashahar, to whom charge sheet was submitted, took cognizance and committed to the learned Sessions Judge, North Tripura Kailashahar, who conducted Sessions Trial No. 9 (NT/K) of 1995. The learned Sessions Judge framed charges against the present Appellants/ accused and three others for the offence punishable u/s 302 read with Section 34, IPC, and separate charge for the offence punishable under Sections 457 and 367 read with 34, IPC the Appellants/accused and the three others denied the charge and claimed for trial.
4. Justice Thakkar, J, (as his Lordship then was) observed that "human goodness has limits -human depravity has none. The need of the hour however, is not exasperation." [Ref.:
5. Justice R.C. Lahoti, J, (as his Lordship then was) in
It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities, or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts, which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault of women.
6. Justice B.N. Agrawal (as then he was) observed that these days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". Justice B.N. Agrawal (as then he was) further observed that:
In a criminal trial a prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal."
7. We are not oblivious of the difficulties faced by the prosecutors in a criminal trial and also in the present scenario of the society, the reluctance on the part of the witness who saw the occurrence or who have knowledge of the occurrence to appear as witness before the court in the trial for that occurrence and also duty of the court is not only to see that innocent man should be punished but also to ensure that no person committed an offence get scot-free. Since the responsibility have become much more in the present scenario this Court while appreciating the evidence extreme care is being taken to separate the grain from the chaff and this Court is not being influenced when appreciating the statements of P Ws by the principle of falsus in uno, falsus in omnibus.
8. The star witness of the prosecution in the present case is informant, Shri Girindra Debnath (PW1) who in his deposition as PW1 before the court stated that in the month of December 1991 at about 7/8 p.m. the incident occurred in his dwelling hut situate at West Karemcherra and at that time he was in his hut along with Amrit Debnath PW4, Shri Morari Debnath PW2, his wife Basana Debnath and his children; and also that he and others were working. At that time Nani Debnath and Uttam Debnath accused/Appellants entered into his hut and forcibly dragged out the deceased Prabir Debnath in their presence from the dwelling hut and the Appellants/accused threatened them to keep mum. The Appellants/accused assaulted him on his head with an iron rod; he fell down and became senseless. After about 20/30 minutes he regained conscious and raised alarm. On hearing it several other person came to the spot including Prafulla Deb but he could not remember the names of others. On the same night he himself and others went out to search the deceased Prabir Debnath. After about half an hour, his dead body was found in the jungle on the other side of the river Machlichorra; and the neck of the deceased tied with ''towel'' and blood was oozing out from his mouth. He also disclosed the name of the accused persons to others who came to the spot on hearing his cry. He could identify the accused Appellant, Uttam Debnath who was present in the dock and Appellant accused Nani Debnath was not present in the dock and he further stated that both the Appellants/accused belong to his village. He also lodged oral complaint to the O.C., Manu P.S., and the Police Officer wrote the complaint as per his dictation but the Police Officer did not read over the contents of the complaint to him. He categorically stated that he did not put his thumb impression on the ejahar or/ complaint. After lodging complaint the Police Officer visited the spot along with him and others and the Police Officer prepared inquest report in his presence and others. The Police Officer also seized wearing apparel of the deceased, but he did not put any signature on the seizure list. After post mortem examination, dead body of the deceased was handed over to him and others on the following morning. As per the prosecution story the occurrence took place in the night at about 7/8 p.m. PW1 did not state in his deposition before the court as to how he could identify the Appellants/accused in the dark night. In his statement before the court PW1 Girindra Debnath made many improvements, which he did not state, when he was examined u/s 161, Cr.PC by the Police Officer. In his statement before the Police he did not state that Amrit Debnath PW4 and Mr. Morari Debnath PW2 and his wife Basana Debnath were present in the spot and also that the Appellants/accused threatened and assaulted him and also to keep mum; he also did not state to the Police that on hearing his hue and cry several persons came to the spot and he narrated the incident to them disclosing the name of the accused/Appellants.
9. PW2 Morari Debnath, in his statement before the court states that the alleged incident occurred in winter season in the year 1991 at about 8/8.30 p.m. At that time he was in the dwelling hut of PW1, Girindra Debnath along with Amrit Debnath PW4, deceased Prabir Debnath and the wife of Girindra Debnath was in the kitchen. At that time they were working there. Suddenly the accused/Appellants, Nani Deb and Uttam Deb by pushing the door of the house entered there. Uttam was armed with pistol and Nani was armed with rod. They threatened them to keep mum. At that time kupi lamp (kerosene lamp) was burning in the dwelling hut and in the light of the lamp he saw pistol in the hand of Uttam and rod in the hand of Nani. The accused Appellant Nani assaulted Girindra Debnath PW1 by the rod in his head. Alter receiving injury PW1 Girindra Debnath left the spot and found standing in the backside of the room. The accused Appellant Nani and Uttam forcibly dragged out Prabir Debnath (victim) from the hut and then they raised hue and cry, several persons came to the spot, namely, Monoranjan Debnath PW3, Mukunda Debnath, Prafulla, Chandramoy Debnath, Gouranga, Prafulla Debnath, Gouramohon Debnath and they narrated the alleged incident to them and also disclosed the names of the accused persons to them. Thereafter, he himself and others went out to locate the deceased Prabir and found the dead body about 8/10 kani away near Machli River. His mouth was gagged by towel but he did not find any injury in the person. The himself and Audhir went to Manu P.S. and narrated the alleged incident to the Police who recorded it accordingly as per his dictation and he put his signature on the recorded statement. Thereafter he himself. Police Officer and Audhir, went to the spot where from the dead body was recovered. The Police Officer prepared inquest report of the dead body of Prabir Debnath.
10. The statement of PW2 contradicted the material facts in the statement of PW1 Girindra Debnath that PW1 after he was assaulted by the accused/Appellant, Nani Deb by iron rod he fell down and became senseless. As per statement of PW2, Morari Debnath, after receiving injuries PW1 Girindra Debnath left the spot and found standing in the backside of the room. PW2 further contradicted the material fact in the statement of PW1 that PW1 raised hue and cry after coming to his sense. But PW2 categorically stated that PW1 Girindra Debnath left the spot and found standing in the backside of the room and PW2 and others raised hue and cry and several persons came to the spot. However, according to PW2 it is he and Audhir who went to the Manu P.S and narrated the alleged incident to the Police Officer who recorded it as per his dictation and he put his signature on the recorded statement; thereafter he himself and Audhir along with the Police Officer went to the spot from where the dead body was recovered.
The statement of PW2 who stated that he lodged the ejahar contradicts the material fact in the statement of PW1 that PW1 lodged oral ejahar to the Police Officer of Manu P.S soon after the incident; and also statement of PW1 that he did not put his thumb impression after his oral ejahar was reduced into writing by the Police Officer but on perusal of the ejahar which was exhibited as Ext.P.1 in the course of the trial there is left thumb impression of PW1 on it. On perusal of statements of PW Nos. 1 and 2 it is not clear who lodged the ejahar and also as to whether PW1 put his thumb impression or not on the FIR prepared by the Police Officer of the Manu PS., as per dictation of PW1. Further, statement of PW1 that he did not put his thumb impression on the ejahar is belied by Ext.P.1, which bear his left thumb impression.
11. Shri Monoranjan Debnath PW3 who immediately came to the spot after hearing the hue and cry raised by PW2 along with Mukunda Debnath, Prafulla, Chandramoy Debnath, Gouranga, Prafulla Debnath, Gouramohon Debnath and also to whom PW2 had narrated the alleged incident by disclosing names of the Appellant/accused, stated in his statement before the court that at the time of alleged incident he was at his house. On that day Police Officer came to his village in connection with murder of Prabir Debnath and he prepared inquest report in his presence and others and put his signature in the inquest report; and the Police Officer also seized wearing apparel of the deceased by preparing seizure list at the Manu PHC and he put his signature on the seizure list. According to the statement of PW3 before the court, he is not corroborating the statement of PW2 rather he contradicted the material fact in the statement of PW2 that on hearing hue and cry of PW2 and other, he along with persons mentioned in the statement of PW2 rushed to the spot and narrated the incident by the PW2 disclosing the name of the Appellants/accused to him and others.
PW3, who according to the statement of PW1 was in the hut of PW1 at about 7/8 p.m. of December 1991 is also not corroborating the statement of PW1, the star witness. In his statement before the court he stated that at the time of incident they were working in the light of the kupi lamp; suddenly two persons by pushing the door entered into the dwelling hut one of them he could identify is the Appellant/ accused Uttam Deb but he could not identify the other person as he fell unconscious. But in his statement he did not state as to how he became unconscious. And after regaining consciousness after about one hour after the incident he raised alarm along with others and many people came to the spot. But he (PW3) contradicted the statement of PW1 that PW1 himself raised alarm but PW3 stated that PW1 did not raise alarm.
12. On perusal of statements of P Ws 2 and 3 it is not clear as to whether PW1 raised alarm and where was he after the incident, or he really fell down unconscious or has he left the house immediately after the Appellants/accused entered into the hut.
13. PW4 Shri Amrit Lal Debnath, who is co-villager of the Appellants/ accused and also knew the Appellants/accused long before the occurrence could not even identify the Appellants/accused Nani Deb. From the incident alleged to have taken place in the dark night, i.e., about 8 p.m. of December 1991, it is not clear as to whether there was sufficient light for identifying the accused/Appellants by P Ws 1, 2, 4 and 5, PW1 in his statement did not mention anything about burning of lamp at the time of incident. As per statements of P Ws 2 and 4 in the light of kupi lamp they were working in the hut of PW1, Girindra Debnath, suddenly the two Appellants/accused by pushing the door entered into the dwelling hut and in the light of kupi lamp PW2 could identify only one Appellant/accused but PW4 could not identify the other Appellant/accused. The fact of burning of kupi lamp in the hut at the time of incident is also contradicted by PW5 who stated in her statement before the court that in the light of lantern (hurricane) they were gossiping and working in the hut of PW1 in the night of the incident. The presence of light is a very material fact inasmuch as the incident took place in the dark night, i.e., at about 8 p.m. of December 1991. In December month of the year in State of Tripura, there is early sunset and 8 p.m. is late night.
PW8 Shri Harimohan Das, Investigating Officer of the case, in his statement before the court clearly stated that he did not put any question to P Ws 1, 2, 4 and 5 as to whether there was any burning lamp in the hut of P Wl at the time of incident. PW8 also did not even make any attempt to seize the lamp, which is disputed if it is kupi lamp or lantern (hurricane), in the course of investigation of the case. The said lamp is an important material exhibit. No doubt because of flimsy and defective investigation, the case of the prosecution cannot be rejected but if the defect of the investigation is to such a great extent that it goes to the root of the prosecution case the court can certainly taken as a material defect which would affect the prosecution case.
14. When the accused/Appellants are charged with heinous crime of brutal murder punishable to the highest penalty prescribed by the Penal Code, judicial approach in dealing with such cases has to be cautious, circumscribed and careful in appreciation of the evidence. It is the quality of the evidence that matters not the number of witnesses. Credible evidence of even a solitary witness can form the basis of conviction. It is equally well settled that independent witnesses are available and not examined but the prosecution examines only the related witnesses, in such situation, the prosecution case has to be scrutinized with more caution. In the present case, as per the statement of PW2 there were many independent witnesses, who immediately rushed to the spot, but save and except PW3 other independent witnesses were not examined, the witnesses so far examined by the prosecution are the related witnesses inasmuch as the deceased Prabir Debnath is nephew of PW1. PW5, Smt. Tinku Deb is the wife of PW1.
The independent witnesses, i.e., PW2, 3 and 4 are not corroborating the statement of PW1 but contradicted in the material facts.
15. The golden rule in the administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, viz.: (1) point to the guilt of the accused and (2) another is innocence; the view which is favorable to the accused should be adopted. The paramount duty of the court is to ensure that miscarriage of justice is prevented. Miscarriage of justice which may rise from the acquittal of the guilty, is not less that from the conviction of the innocent.
We are not oblivious that this Court being the First Appellate Court has to discuss and re-appreciate the statement of P Ws and the exhibited documents, more particularly, in case we cannot persuade ourselves to concur the finding of the trial. Regarding this point, reference may be made to the decision of the Apex Court in
when the appellate court concurs with the views of the trial court necessity for elaborately dealing with the various aspects may not always be necessary. But when a view contrary to that of the lower court is expressed, it is imperative that reasons therefore should be clearly indicated. There is no scope for any departure from these basic requirements.
16. Under the criminal jurisprudence in our country, a person has a profound right not to be convicted of an offence, which is not established by the evidential standard of proof beyond reasonable doubt. No doubt, this standard is a higher standard but there is no absolute standard. The Apex Court in
24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favour other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J (as his Lordship then was) in State of U.P. v. Krishna Gopal (1998)5 SCC 302.
17. In the statements of P Ws 1, 2, 3, 4 and 5 there are discrepancies. No doubt some discrepancy is inevitable but the discrepancy should not wait with the court so long as it is not material fact. Ref: Krishna''s case (supra). In the deposition of witnesses there are always normal discrepancies, however, honest truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those, which are not normal, and not expected of a normal person.
18. In the given case, as discussed above in detail regarding discrepancies in the statement of witnesses we are of considered view that discrepancies in the statement of witnesses of P Ws 1, 2, 3, 4 and 5 are material discrepancies which are not normal and not expected of by a normal person. We also reiterate that when it appears that finding of fact arrived at are bordering on perversity resulting miscarriage of justice this Court will not decline to quash such finding to prevent miscarriage of justice. As the finding of learned Sessions Judge regarding guilt of the Appellants/accused is perverse, the impugned judgment is perverse and we are constrained to quash such finding to prevent miscarriage of justice. We hold that the prosecution has utterly failed to establish the guilt of the Appellants/accused beyond reasonable doubt.
19. For the foregoing reasons it is clear that there is reasonable doubt that Appellants/accused are the authors of the crime and in consequence thereof the impugned judgment dated 7.2.2005 and sentence order dated 9.2.2005 passed by the learned Sessions Judge, North Tripura, Kailashahar are hereby set aside. The appeal is allowed.
The Appellants/accused are set at liberty. Send a copy of this judgment and order to the concerned Judicial Magistrate and learned Sessions Judge, North Tripura, Kailashahar.
