Bappa Chakraborty vs State Of Tripura

S. Talapatra, J

Heard Ms. P. Dhar, learned legal aid counsel appearing for the appellant as well as Mr. R. Datta, learned P.P. appearing for the state.

This is an appeal under Section 374(2) of the Cr.P.C. from the judgment and order of conviction and sentence dated 25.10.2017 delivered in Case No.ST 40(ST/U) of 2014(Type-I) by the Sessions Judge, Gomati Judicial District, Udaipur. By the said judgment, the appellant has been convicted under Section 302 of the IPC and pursuant to the said conviction, he has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/-with default stipulation.

The genesis of the prosecution case can be rooted in the complaint filed by one Madhabi Debbarma [PW-6], one Sub-Inspector of Police working in the Women's Police Station, Udaipur. PW-6 revealed that one Chaya Barman (Chakraborty) [the mother of the appellant] had been killed by unknown miscreant on 01.02.2013 before 08.30 hrs. at Bagma Barabhaiya. Initially, a proceeding was drawn up under Section 174 of the Cr.P.C. for unnatural death. The said police officer [PW-6] made inquiry and during that exercise she came across the postmortem examination report where it has been opined that the death was caused by asphyxia from ante mortem strangulation, which was homicidal in nature. Thereafter, it has been observed that the burn was caused by kerosene oil which was post-mortem and homicidal in nature. Those findings prompted her to file the said complaint. Based on the said complaint, R.K. Pur P.S. Case No.43/2013 under Section 302 of the IPC was registered and taken up for investigation. After completion of investigation, the final police report was submitted by sending up the appellant for facing the trial as during the investigation, the materials those were gathered indicated involvement of the appellant in the murder of his mother. The police papers were committed to the Court of the Session Judge. Having taken the cognizance based on the police report, the Session Judge, South Tripura, Udaipur [as it then was] framed the charge against the appellant under Section 302 of the IPC, to which the appellant pleaded not guilty and claimed to be tried in accordance with law.

To substantiate the charge so framed under Section 302 of the IPC, the prosecution adduced as many as sixteen witnesses and admitted six documentary evidence including the complaint [Exbt.P/1], the postmortem examination report [Exbt.P/3], State Forensic Science Laboratory's Report [Exbt.P/5], inquest report [Exbt.P/6] and the extract of G.D. [Exbt.P/7]. After recording the prosecution evidence, the appellant was examined under Section 313(1)(b) of the Cr.P.C. when the appellant reiterated his plea of innocence and stated that the evidence that has been recorded does not make out a case of his involvement and part of it, is concocted. Thereafter having considered the arguments placed by the counsel representating the parties, the Session Judge returned the finding of conviction and the consequential order of sentence as noted above.

Ms. P. Dhar, learned legal aid counsel appearing for the appellant has quite succinctly submitted that there is no tenable evidence against the appellant. The investigation started on the basis of the postmortem examination report [Exbt.P/3] which according to Ms. Dhar, learned legal aid counsel is grossly illogical and not based on any scientific process. From the postmortem examination report, no person having little knowledge of death by asphyxia or by strangulation would find out any signs internally or externally of such death. Ms. P. Dhar, learned legal aid counsel has also pointed out that the medical officer who had carried out the postmortem examination has recorded that the body of the deceased had suffered 100 percent burn and therefore the external signs were difficult to locate. Even for asphyxia, no sign is found during the postmortem examination.

Ms. P. Dhar, learned legal aid counsel has seriously lambasted the opinion in respect of the postmortem burning. According to her, no element is identified to arrive at such inference. In this regard, Ms. P. Dhar, learned legal aid counsel has referred to the postmortem artifacts. According to her, the postmortem burning results in high temperature and the sub-cutaneous fat becomes hard and raptures. This may stimulate an incised or lacerated wound. Similarly, when an attempt is made to extinguish fire, a forceful stream of water from a fire-hose can fragment a burning bone, like femur, rendered brittle by exposure to such high temperature. A particular feature, a heat haematoma, simulating extradural haematoma should be kept in mind. Such a haematoma is unrelated to middle meningeal artery; it is honeycomb in appearance and firm in consistency. This observation, Ms. Dhar, learned legal aid counsel, has referred from the observation recorded in Modi's Textbook of Medical Jurisprudence and Toxicology, 24th Edition as published by LexisNexis.

On the basis of such observation, Ms. P. Dhar, learned legal aid counsel has further contended that no such observation or element has been isolated and identified in the postmortem. The postmortem examination apart from being a work of fiction, it defies all scientific logic and as such, this court may not place reliance on such postmortem report and may not infer that after strangulation the body sought to be burnt by someone else.

That apart, Ms. P. Dhar, learned legal aid counsel has submitted that a suicidal note was recovered, believed to be written by the deceased. One handwriting expert has identified the signature of the deceased on the postal scroll marked Q-3. The defence did not introduce that suicidal note rather the investigating officer has introduced that suicidal note into the case record and the result that has surfaced only shows that the suicidal note was genuine. That apart, Ms. Dhar, learned legal aid counsel has submitted that on scanning of the evidence, it would be transparent that there is no evidence against the appellant at all.

Mr. R. Datta, learned P.P. appearing for the state in his usual fairness has submitted that the prosecution has failed to place adequate materials in support of the charge. Some materials, according to Mr. Datta, learned P.P. are available and that indicate suspicion against the appellant, but that suspicion is not sufficient to convict someone. We appreciate the fairness of Mr. Datta, learned P.P. appearing for the state.

For purpose of making the analogy afresh, we may indulge to scrutinize the records of evidence meaningfully.

PW-1 [Niyati Debnath], PW-2 [Uttam Kumar Debbarma], PW-3 [Nibedita Dutta (Biswas)] and PW-4 [Harimadhab Debnath] did not state anything material in the trial save and except that the deceased, Chaya Barman, died and she was working with them.

PW-5, Amal Chandra Kalita is the handwriting expert from the State Forensic Science Laboratory (SFSL) and he had examined the questioned documents as referred. He has narrated how he received the documents for examination through the Director, SFSL and thereafter he has categorically stated as follows:

"The person who wrote the blue enclosed signature stamped and marked as S1, S2, S2/1 and S3 to S13 also wrote the red enclosed signatures similarly stamped and marked as Q3."

He has further stated in the trial that after examination he came to the conclusion that the person who wrote the blue encircled writings stamped and marked A/1 to A/15, also wrote the red encircled writings, similarly stamped and marked as Q/1 and Q/2. This shows that the suicidal note which was questioned by the investigating officer was according to the opinion of the handwriting expert [PW-5] was really written by the deceased.

For getting the identity of the questioned writings, we have perused the forwarding report addressed to the Director of SFSL. From there it has surfaced that Exbt.Q/2 and Exbt.Q/2R are the signature of Chaya Barman and we on putting further labour could realize that Exbt.Q/3 is also the signature of Chaya Barman which matched with the specimens signature collected from the different sources.

PW-6, Madhabi Debbarma, the informant has narrated the same story what revealed during the investigation of the case of unnatural death. She came across the postmortem examination report filed by the complainant.

PW-6 was reexamined on 21.02.2017 and she narrated how the case was registered first under Section 174 of the Cr.P.C. being Woman P.S. UD Case No.01/2013. PW-6 had prepared the inquest report in presence of the witnesses. She herself has stated "I did not notice any other injury on her person." She prepared the inquest report which has been marked in the trial as Exbt-6. She has also produced the entry in the GD [Exbt.P/7] for admission. No effective cross-examination was carried out.

PW-7, Dhirendra Chandra Paul turned hostile as he did not support his statement as recorded during the investigation. He has simply stated that on hearing the hue and cry from the house of the deceased, he appeared there but he did not know beyond that. As stated in the trial that he saw Chaya Barman burning. He had also stated that her son Bappa was in veranda, but he could not say anything. He has further stated that Bappa had a family dispute and they held meeting on the complaint of his mother. But on the next line, he has categorically stated that he cannot say how she was engulfed by fire. Despite such statement made in the trial, PW-7 was declared hostile and in the cross-examination he denied any knowledge that the appellant was creating pressure on his mother for property. That statement is completely relegated by the statement of the other persons who rushed immediately after the occurrence and stated that they did not see the appellant at the place of occurrence.

PW-8, Ratan Paul was as well declared hostile. He had stated in the trial that when he arrived at the house of the deceased he and other people did not find Bappa Chakraborty [the appellant]. They searched for him and he came and they asked him but he could state anything about the matter.

PW-9, Dulal Chakraborty was posted as the head constable at R.K. Pur P.S. on 09.03.2013 and he seized some materials including one paper and water bottle with kerosene by preparing the seizure list [Exbt.P. 2/1]. He had also witnessed the seizure of the suicide note [Exbt.M.O.1]. No effective cross-examination was carried out.

PW-10, Sandhya Rani Debnath has denied to have any knowledge of the occurrence and hence, she was declared hostile but no cross-examination was carried out by the defence. The prosecution, by means of cross-examination, did make any attempt to show that there was quarrel between the deceased and the appellant over demand of Rs.4,00,000/- etc. PW-10 has clearly denied that he has any knowledge of such quarrel.

PW-11, Ajit Roy is a seizure witness. He identified his signature over the seizure list [Exbt.P.2/1].

PW-12, Gopal Roy has stated that on 03.04.2013, the police went to the shop of the appellant and he was there. Police stated him that from his shop 2/3 letters had been recovered. He has further stated that one Sindhu Dey from the neighbourhood of the house of deceased informed him that mother of the appellant died by burning. No effective cross-examination was carried out.

PW-13, Dr. Debasish Pal, a medical officer who was posted at TSD Hospital had conducted the postmortem examination of the dead body of Chaya Barman (Chakraborty). In his opinion, the death was asphyxial death which was due to ante mortem strangulation, homicidal in nature. He has further stated that the burn was caused by kerosene oil which was postmortem and homicidal. He has apprised in the trial that Dr. Rituparna Dey and Dr. Dhruba Das were in the team which conducted the postmortem examination. No further signs were available for purpose of coming to an inference that the burnt injury was postmortem or asphyxia was caused by strangulation.

PW-14, Samir Das is the investigating officer. He has narrated briefly how he had carried out the investigation and caused the seizures including the seizure of the suicidal note. He examined the witnesses from the neighbourhood and after completion of the investigation, he found prima facie materials for submitting the chargesheet and accordingly he submitted the chargesheet. In the cross-examination, he has clearly denied that he had not seized materials marked as M/O-1, M/O-2 and M/O-3 [the hand writings.]

PW-15, Smt. Sindu Dey, as stated earlier, came from the neighbourhood. She has stated in the trial that she rushed to the place of occurrence after hearing cry. But she heard no other cry of the mother of Bappa. The appellant's mother were living in that house. Bappa was not seen when his mother was burning. She informed the matter to the office of a political party. She got nervous. She did not make any statement to the police. For making such statement, PW-15 has been declared hostile at the request of the prosecution.

PW-16, Smt. Lila Das has stated nothing in the trial which may be considered material for coming to an inference.

We do not find any material to convict the appellant and as such, we are unable to agree with the finding of the Sessions Judge that the prosecution has successfully proved the charge against the appellant based on the circumstantial evidence. The inference as drawn is farfetched. Even if, some materials or element of evidence may generate suspicion against the appellant, but on the basis of those elements, the finding of conviction cannot be sustained. The Session Judge has relied on the hostile witness for purpose of corroboration, but such corroboration is ill-drawn from the records. Even though, the Session Judge has observed that the motive of crime has not been established by the prosecution. We are at loss the way the evidentiary materials have been assessed by the Session Judge for coming to an inference, for returning the finding of conviction.

Having observed thus, the impugned judgment and order of conviction and sentence dated 25.10.2017 are interfered with and set aside. In consequence thereof, the appellant is liable to be acquitted from the charge and accordingly, it is ordered. The appellant be released forthwith, if not wanted in any other case.

In the result, the appeal stands allowed.

Send down the LCRs forthwith.

A copy of this judgment and order be supplied to the Ms.

P. Dhar, learned legal aid counsel for doing her needful.