Amarjit Reang vs State Of Tripura

Arindam Lodh, J

[1] The present appeal is directed against the judgment and order of conviction and sentence dated 12.04.2014 passed by the learned Sessions Judge, Gomati Judicial District, Udaipur in case No. ST.No.22 (GT/U) of 2015 against the appellant for offence under Section 302 of the Indian Penal Code, hereinafter IPC, and thereby sentenced him to suffer Rigorous Imprisonment for life and to pay a fine of Rs.10,000/-with default stipulation.

[2] The prosecution case was launched on the basis of complaint lodged by one Dharmendra Reang, the brother of the deceased. The whole prosecution story as depicted by learned Sessions Judge is as follows:

"2.That, the prosecution case in short is that, On 07.12.2014 at about 11 a.m. the complainant's younger sister Smt. Ramabati Reang went out of home along with Smt. Jayanti Reng of their village and they boarded a Commander Jeep on Amarpur Natunbazar Road. Reaching Paharpur passenger shed Ramabati alighted from the vehicle saying Jayanti that she would go to Amarpur. At that time Ramabati was wearing black and white printed salwar kamiz and she was wearing pump shoe of black and pink colour. By that vehicle Jayanti Reang went to Natunbazar. Thereafter, on 28.12.2014 in the afternoon the complainant came to learn from Debsingh Reang of Nabinbari that on 22.12.2014 the police Officer of Garjee Out Post recovered dead body of a young girl from Tainani area. Getting this information, he on 29.12.2014 along with his father Anjan Kr. Reang and his mother Rangabati Reang, Debsingh Reang and some others came to Garjee Police Out Post and in the Out Post the Police Officer showed them some pictures of the said dead body of the girl and told them the dead body was kept at R.K.Pur P/S. On 30.12.2014 he along with his mother, father, Jayanti Reang, Debsingh Reang and some others came to R.K.Pur Women P/S where the lady Police Officer showed them the wearing apparels of the dead body that were recovered from the wearing of the dead body and the shoes. Seeing those they identified the same to be the wearing apparels of Ramabati as she was wearing on the fateful day i.e. on 07.12.2014.

It is further stated by the informant in the ejahar that the accused Amarjit Reang used to read with him at Birchandra Sahid Smriti Vidya Mandir. After passing Madhyamik in 2007 he left that school and of late he found Amarjit to visit their village and from his neighbours he came to learn that Amarjit was in touch with his sister Ramabati on the phone and love affairs developed between them. It is further stated in the ejahar that on 07.12.2014 Amarjit contacted Ramabati on mobile phone and thereafter, took her to Tainani. He suspected that Amarjit and his companions murdered his sister and left the dead body near Tainani cherra. It is further stated in the ejahar that on 06.07.2014 there was Buddha Mela at Tainani.

One Sri Dharmendra Reang (the complainant), S/o Sri Anjan Kr Reang of Karjaram Para, under R.K.Pur Police Station, lodged a written ejahar with the Officer in charge of R.K.Pur Women Police Station on 05.01.2015.

On receipt of the ejahar of Dharmendra Reang, the O/C R.K.Pur Women P/S made G.D Entry No.8 dated 05.01.2015 and forwarded the same to the O/C, R.K.Pur P/S on 05.01.2015 itself and the O/C, R.K.Pur P/S registered R.K.Pur P/S FIR No.04 dated 05.01.2015 under Section 302/201/120B of IPC and endorsed the case to SI Ranjit Das for investigation."

[3] On receipt of the complaint the Officer in charge of R.K.Pur Women Police Station registered the FIR and started investigation. During the investigation, the IO arrested Amarjit Reang, the appellant herein. The IO also recorded the statement of the available witnesses under Section 161 of Cr.P.C.

[4] The decomposed body of the deceased was recovered. The Post Mortem Examination was conducted. After completion of investigation and on being formed a prima facie case, the IO submitted charge sheet against the accused person under Section 302/201/120B, IPC.

[5] After receipt of the copy of the charge sheet the learned Magistrate took cognizance of the case and committed the case to the court of Sessions Judge as it was absolutely triable by the court of Sessions. After receipt of the case record, learned sessions judge framed charge against the accused appellant under Section 302/201 of the IPC. During trial the prosecution examined as many as 40 witnesses and also introduced some documents including the Post Mortem examination report (Exhibit-P3), the disclosure statement of the accused [Exhibit- P2/3], the report of the State Forensic Science Laboratory etc.

[6] After recording of evidence of the prosecution witnesses, the appellant was examined under Section 313, Cr.P.C where he was noticed regarding the incriminating materials as surfaced against him in course of recording of evidence which he pleaded to be false.

[7] After consideration of the evidences of the prosecution witnesses and having regard to the submissions of learned counsels appearing for the parties, the learned Sessions Judge had returned the findings of conviction upon the appellant under Section 302 and 201 of IPC, as aforesaid.

[8] Being aggrieved, the appellant has preferred this appeal before us. We have perused the judgment of the learned trial Judge. To record the conviction against the accused appellant, the learned Sessions Judge had made the following observations in his judgment:

"37. In the light of the above discussion and observation, I find that the oral, documentary and material exhibits, medical, seizure, forensic and call details evidence bring home the following clinching incriminating circumstances so as to establish the guilt of the accused Amarjit Reang for the offence under Section 302 of IPC in respect of the murder of the deceased Smt. Ramabati Reang beyond reasonable doubt:-

(1) There was a friendly alliance/love affairs between the deceased and the accused as he used to visit the house of the deceased vide the evidence of PW.9, brother of the deceased and PW.37.

(2) On 07.12.2014 there was several conversations on mobile phones between the deceased and the accused and, thereafter, the deceased left her house on that day for the last time with PW.30 to go to Amarpur and on the way left the company of PW.30 and, therefore, she was never seen alive till the recover of her dead body.

(3) On 22.12.2014 the dead body of the deceased was recovered near Tainani Cherra along with wearing apparels and pair of shoe etc. From her wearing apparels and shoes she was identified by her parents and relatives.

(4) The identification of the dead body was further confirmed by the DNA evidence of PW.36 in as much as the DNA of her parents and the DNA of the parts of the dead body matched with each other.

(5) The mobile phone of LAVA company of the deceased was recovered by the I/O as per the disclosure statement made by the accused from his house as well as the mobile phone of Tanglajoy Reang with which the accused talked to the deceased so as to ask her to give him company to go the 'Mela', was also recovered on the disclosure statement made by the accused. This recovery evidence is admissible under section 27 of the Evidence Act.

(6) The accused failed to give any explanation as to how he came into the possession of the mobile phone of the deceased and thereby presumption of his guilt stood reinforced to the effect that after killing the deceased he took her mobile phone with him."

[9] From the above finding, it is apparent that the learned trial judge has solely relied upon the recovery of the mobile phones of the deceased from the possession of the accused appellant. We have heard Mr. R.G.Chakraborty, learned counsel appearing for the appellant as well as Mr. S.Debnath, learned additional PP appearing for the state respondent.

[10] Mr. Chakraborty, learned counsel has submitted that the findings of the learned trial judge are perverse as the conviction recorded by the learned trial judge is based on no evidence. Learned counsel further submits that it is settled law that only on the basis of recovery of a particular object the conviction cannot be recorded. There is no witness to substantiate the case of the prosecution that they had seen the deceased with the accused-appellant at any point of time during her journey from her own house to the place of recovery of her dead body.

[11] On the other hand Mr. Debnath, learned Additional PP has submitted that the present case is wholly based on circumstantial evidence and conviction was declared only on the basis of recovery of mobile phone of the deceased from the possession of the appellant. The police also recovered another mobile phone which belongs to one Tanglajoy Reang. But he was not examined by the prosecution.

[12] On the basis of aforesaid submissions we have scrutinized the evidence on record to find out whether the learned sessions Judge has recorded the conviction of the appellant on proper appreciation of evidence.

[13] PW-1, Smt. Usha Debnath is a woman constable who has witnessed the seizure of viscera and teeth of the deceased.

[14] PW-3 was working as a GD staff at Tepania District Hospital who deposed that the blood sample of the deceased was seized in her presence.

[15] PW-4 is the medical officer who conducted the post mortem examination of the decomposed body of the deceased.

[16] PW-5 collected the blood sample of Ananda Kumar Reang and Chandra Reang and handed over the same to the Investigating Officer.

[17] PW-6 is also a medical officer of Gomati District Hospital who also participated at the time of post mortem examination.

[18] PW-7 is a constable who is the seizure witness of the CD cassette, four copies of photographs and details of the call list of mobile phone seized by Darogababu in his presence by preparing two seizure lists.

[19] PW-8 is the witness of the inquest report.

[20] PW-9 is the informant. He deposed that on 07.12.2014 at about 11 a.m. his sister Ramabati Reang went out of home with their neighbour Jayanti Reang to go to Amarpur but Ramabati did not return though Jayanti Reang returned on that day. Thereafter, they tried to contact with her over her mobile phone, but, it was found switched off. On 28.12.2014 in the afternoon one Debsingh Reang informed his parents that a dead body of a young girl was found in Tainani area and thereafter, his parents with Debsingh Reang and their another neighbour went to Garjee Out Post and there one Darogababu showed photographs of the clothes of the said dead body and seeing the same his parents suspected that those wearing apparels might be of their daughter Ramabati. Thereafter, on 30.12.2014 the informant PW-9 went there along with his parents, Debsingh Reang, Jayanti Reang and some other persons to the R.K.Pur PS where the wearing apparels and shoes were found and the dead body was shown to them. They identified the wearing apparels and shoes of Ramabati. Thereafter, on 04.01.2015 they lodged Ejahar [Exhibit-P/1] at R.K.Pur Women Police Station against the present appellant as he used to visit their house and also used to talk with Ramabati over phone. In his cross-examination he stated that he did not lodge any information to the police station about the missing of his sister Ramabati.

[21] PW-10, Sri Anjan Kumar Reang is the father of the deceased Ramabati. He deposed that on 07.12.2014 her daughter went out of his house and after about 18 days they were informed about the recovery of a dead body. They went to the police station for identification of the dead body and the wearing apparels. They identified the dead body as their daughter.

[22] PW-11, Smt. Rangabati Reang is the mother of the deceased. She deposed the same fact as was deposed by PW-8.

[23] PW-12, Sri Debsingh Reang is a distant relative of the deceased. His evidence will not help the prosecution in any manner.

[24] PW-13, is a witness who recorded the statement of Smt. Rangabati Reang.

[25] PW-14, Sri Krishna Chakma deposed that Tanglajoy Reang was known to him and further deposed that Darogababu, the investigating officer never seized anything from Tanglajoy Reang. He further deposed that he put his signature on the seizure list brought to him as approached by Darogababu. He further deposed that the investigating officer did not show him the said mobile phone. In his cross-examination PW-14 stated that Amarjit Reang, the appellant herein, was known to him and he denied the fact that the said mobile phone was collected by Darogababu from Tanglajoy Reang as per dictation of Amarjit Reang and at that time one Executive Magistrate was present.

[26] PW-15 was declared hostile. However, in his chief examination he deposed that the Investigating Officer did not tell him why he was taking his signature in the said paper and both Amarjit Reang and Tanglajoy Reang were known to him.

[27] PW-16, Sri Suman Dey was posted as SPO at Garjee Out Post. He is a seizure witness.

[28] PW-17, Sri Bancharam Chakma deposed that on 22.12.2014 in the morning the police recovered the dead body from Tainani area.

[29] PW-18, Sri Pradip Jamatia also deposed that on 22.12.2014 the police recovered the dead body which appeared to be the dead body of a female person. The police also seized the wearing apparels of the dead body.

[30] PW-19, Sri Babul Shil is a witness in whose presence the accused appellant had made the alleged disclosure statement. In his cross examination, however, he could not say whether any Executive Magistrate was present in the chamber of the Officer in charge or not.

[31] PW-20, Sri Sribash Kr. Shil has deposed that in his presence the confessional statement of the accused appellant was recorded.

[32] PW-21 Rupen Sarkar is not a material witness at all.

[33] PW-22 has only seen the dead body of the deceased.

[34] PW-23 is Smt. Sanghita Datta, a woman constable who witnessed the seizure of the wearing apparels and viscera of the deceased.

[35] PW-24 Smt. Debjani Deb was posted as Executive Magistrate cum Deputy Collector in the office of the SDM. She deposed that in her presence the dead body of the deceased was recovered and the police prepared the inquest report. She has further deposed that she did not find any injury mark on the decomposed body of the deceased.

[36] PW-25 Sri Narayan Bir, was working as staff nurse at the District Hospital.

[37] PW-26 is Dr. Abhijit Datta who conducted the post mortem examination over the dead body of the deceased. This witness deposed that the cause of death could not be ascertained due to decomposition and part of liver and kidney were sent for chemical examination.

[38] PW-27 is not a material witness.

[39] PW-28 is the IO who deposed that in his presence the accused appellant had confessed that he killed the deceased and on the basis of the statement of the accused he seized two mobile phones in presence of the Executive Magistrate.

[40] PW-29 deposed that he received the information about the dead body and later on received the complaint regarding the death of Ramabati Reang. He further deposed that till the arrest of the appellant on 06.01.2015, there was no direct evidence to implicate him in connection with the murder of the deceased. She volunteered that she heard that there was a love affair between the deceased and the accused-appellant.

[41] PW-28, Sri Ranjit Das was further re-examined who deposed that he sent a requisition for SDR, CDR etc. to the concerned authority regarding the phone number, 9612899544 and 8730851267. However, he deposed that he did not give any requisition for ascertaining the owner of the SIM cards.

[42] PW-29 Sri Munin Sarma Bordoloi who was working as circle nodal officer has certified the CDR and SDR calls of mobile phones as stated above.

[43] PW-30 Smt Jayanti Reang who accompanied the deceased from her house deposed that she along with Ramabati Reang, the deceased boarded in a Commander Jeep from Paharpur to go to Jatanbari but on the way near a passenger shed at the tri-junction, the deceased got down from the vehicle telling that she would go to Amarpur. She described about the wearing apparels the deceased was wearing at the time of journey. Later on, she identified the wearing apparels of the victim marked as Exhibit- MO1 series.

[44] PW-31, ASI of police signed the seizure list of some of the articles delineated.

[45] PW-32, Sri Ajit Baran Chanda collected the copy of SDR and CDR from the SP office.

[46] PW-33, Uday Ram Reang is one of the brothers of the deceased.

[47] PW-34, Sri Parthapratim Sharma is the owner of the land where airtel tower was installed.

[48] PW-35, Smt. Gunabati Reang did not say anything regarding the incident.

[49] PW-36, Dr. Subhankar Nath has chemically examined the parts and samples collected from the body of the deceased and on verification of DNA profile he deposed that the dead body was of a female.

[50] PW-37 is a co-villager of the deceased, but did not say anything.

[51] PW-38 did not say anything.

[52] PW-39 conducted the videography by his digital camera while the officer in charge recorded the confessional statement of the appellant in presence of the Executive Magistrate.

[53] PW-40 Sri Goutam Dey is the witness of seizure of SDR and CDR of mobile no. 9612899544 and 8730851267.

[54] Before we advent to the merits of the case and the findings returned by the learned Sessions Judge, we may revisit the principles laid down in the case of Sharad Birdhi Chand Sarda vs State of Maharashtra , AIR 1984 SC 1622 which also was referred by the learned Sessions Judge while convicting the accused appellant. Undoubtedly, the present case is wholly based upon circumstantial evidence. There is no direct evidence. In the case of Sharad Birdhi Chand Sarda (supra) the Supreme Court had laid down the following principles to establish the case which is based on circumstantial evidence:

"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

(ii) The facts so established should be consistent with the hypothesis of the guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

[55] Keeping in mind the aforesaid principles we are to analyze the evidence of the prosecution witnesses to judge the sustainability of the judgment of conviction as recorded by the learned Sessions Judge.

[56] Having gone through the evidence, we find that the accused-appellant was implicated with the present case only on the basis of a statement of the informant PW-9, who is the brother of the deceased that the accused used to visit their house and he also used to talk with his sister over mobile phone. This is the first circumstance to implicate the accused appellant with the case. Next circumstance, we find that the IO as well as the Executive Magistrate and some of the witnesses have stated that the accused made confessional statement in their presence in the custody of police. Needless to say, this statement being in the nature of confessional statement made in the custody of police is not admissible in evidence as it is barred by Section 26 of the Evidence Act. Next circumstance, according to the prosecution is the recovery of 2 mobile phones allegedly from the custody of the accused-appellant. We have seen PW14, Sri Krishna Chakma while deposing before the trial court has categorically stated that he knows both Tanglajoy Reang and Amarjit Reang. But while obtaining his signature on the white papers or on the seizure list he was not shown the seized mobiles. We find that the prosecution, or rather, the IO during his investigation did not make any effort to record the statement of Tanglajoy Reang or even he was not cited as one of the witnesses in connection with the case who could reveal the actual fact of the seizure of the mobile phones. So, the seizure of mobile phone also appears to be a suspicious circumstance. In the disclosure statement, we do not find any statement of the accused-appellant wherein he divulged the place or regarding the weapon he used in the crime. He only said that he killed the deceased which is not admissible in evidence. Apparently, this statement cannot be treated as a disclosure statement relating to the discovery of any fact in terms of Section 27 of the Evidence Act.

[57] It is further revealed that though the deceased was accompanied by Smt. Jayanti Chakma, yet she never disclosed the purpose of her getting down from the vehicle suddenly, even she did not disclose whether she wanted to go. This circumstance had no link of meeting with the accused-appellant at any point of time.

[58] Many witnesses were examined from Tainani area wherefrom the dead body of the deceased was recovered. But none of them have stated that they had ever seen the deceased along with the accused-appellant.

[59] Only PW37 has stated that he knew the deceased and there was a religious function in their village when she saw the deceased Ramabati Reang with the accused-appellant. According to us, on the basis of this statement, the accused appellant cannot be held to be guilty of committing murder of the deceased. This is an isolated statement having no link in the killing of the deceased. Even the doctor, who conducted the post-mortem examination, could not disclose the cause of death.

[60] On overall assessment of the evidence, materials on record, starting from the circumstance that the deceased had left her house; getting down from the vehicle suddenly on her way to Jatanbari, and recovery of her dead body from Tainani area, we are unable to establish any link to complete the chain of circumstances connecting the accused- appellant with the commission of offence of murder of the deceased. Assuming the circumstance that the mobile phone of the deceased was recovered from the accused and there were conversations between the deceased and the appellant, but on the basis of these conversations, according to us, the accused appellant cannot be convicted.

[61] Keeping in view the principles laid down in the case of Sharad Birdhi Chand Sarda (supra) we have given our anxious consideration to the finding of the learned Sessions Judge that the accused fails to give any explanation as to how he came into the possession of the mobile phone of the deceased and that presumption of his guilt stood reinforced to the effect that after killing the deceased he took her mobile phone with him. We are unable to agree with the finding of the learned Sessions Judge for the reason that it is the duty of the prosecution to prove beyond reasonable doubt that before killing the deceased, the accused was seen with the deceased immediately before her death or at any point of time after her getting down from the vehicle. If this circumstance could be proved by the prosecution, then, it could have been said that thereafter the onus had been shifted upon the accused to explain the circumstances at which the deceased was killed.

[62] Section 106 of the Evidence Act is certainly not intended to relieve the prosecution from its duty to discharge its burden first before shifting the onus upon the accused.

[63] Entire case rests on circumstantial evidence. In such a case motive assumes considerable importance. As noted, prosecution failed to establish any motive. Only circumstance of significance the prosecution has brought on record is the seizure of the mobile phone of the deceased from the possession of the accused. However, that by itself would not be sufficient to record conviction of the accused. As held earlier, his so-called confession is not admissible in evidence. In absence of any other circumstance connecting the accused to the commission of the crime, his conviction which is based on strong suspicion only, must be set aside.

[64] It is a settled proposition of law that suspicion, howsoever grave, cannot take the place of proof. After analysis of the entire evidence and considering the totality of the circumstances, according to us, the prosecution has failed to establish the chain of circumstances so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. There is no scope to draw the only hypothesis that it is the accused-appellant who killed the deceased.

[65] Having held so, the instant appeal deserves to be allowed. The impugned judgment of conviction and sentence as recorded by the learned Sessions Judge is hereby set aside and quashed.

[66] Accordingly, the appeal stands allowed. The appellant is acquitted from the charge levelled against him. He shall be released forthwith, if not wanted in connection with any other cases.

Send down the LCRs.