Dharmaraj Jamatia vs State Of Tripura

[1] Heard Mr. D. Sarkar, learned legal aid counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the State.

[2] The appellant was charged under Section 302 of the IPC for murdering his step brother, namely Surendra Jamatia on 25.07.2012 at about 2020 hours at Kuwaimura under R.K. Pur P.S. and upon regular trial, he has been convicted for culpable homicide, not amounting to murder under Section 304 (Part-1) of the IPC by the Sessions Judge, Gomati Judicial District by his judgment dated 06.02.2015 delivered in ST.34(ST/U)/2014. Pursuant to the said judgment dated 06.02.2015, the appellant has been sentenced to suffer rigorous imprisonment for 7[seven] years and fine of Rs.10,000/- with default stipulation. It has been observed that the period of detention as suffered by the appellant shall be set off from the imprisonment.

[3] Based on the complaint filed by one Folo Rani Jamatia, wife of the deceased [PW-1] to the Officer-in-Charge, R.K. Pur Police Station on 01.08.2012 [Exbt.P/1], R.K. Pur P.S. case No.299 of 2012 under Section 302 of the IPC was registered and taken up for investigation.

The informant revealed to the police that when she was attending an invitation in the house of the appellant, her husband Surendra Debbarma asked her to return home at once. At that time, Dharmaraj Jamatia and Surendra Jamatia were engaged in altercation. Suddenly, Dharmaraj Jamatia [the appellant] being excited attacked her husband with a sharp edged knife. In order to save his life, Surendra Jamatia ran away towards the field of Kuwaimura School. The appellant chased him and succeeded to strike blows on the belly of her husband. Her husband fell down on the ground when the appellant had struck further blows by causing severe injuries on his head. Hearing screams of her husband, Jayarani Jamatia, Anantamani Jamatia and the informant with other companions took her husband to Maharani PHC and got him admitted there. From there, seeing the precarious condition, her husband was shifted to TSD hospital, Udaipur and later on, to GBP hospital at Agartala. On 30.07.2017 the husband of the informant succumbed to the injures. The occurrence took place on 27.07.2012. The written complaint was lodged on 01.08.2012. Since the appellant refuted the charge and pleaded innocence, the prosecution adduced as many as 12 witnesses including the informant [PW-1], the doctor [PW-12] who conducted the post mortem examination and the investigating officer [PW-10] in order to substantiate the charge. Apart that, the prosecution admitted 7[seven] documentary evidence including the post mortem examination report [Exbt.P/3], inquest report [Exbt.P/4] and the written complaint [Exbt.P/1]. After recording the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C. when he repeated his plea of innocence by stating that the incriminating materials are all fabricated to persecute him. After appreciating the evidence, the trial Judge returned the finding of conviction as stated above.

[4] Mr. D. Sarkar, learned legal aid counsel appearing for the appellant has submitted that even though the informant [PW-1] has stated in the written complaint that Jayarani Jamatia [not examined in the trial] and Anantamani Jamatia [PW-3] witnessed the occurrence and they even had tried to resist the appellant from assaulting the deceased, but Anantamani Jamatia turned hostile in the trial as he did not support the prosecution case. That apart, Mr. Sarkar, learned legal aid counsel has quite emphatically submitted that the informant is the solitary witness of altercation. She did not see how the appellant struck blows on her husband inasmuch as that was not possible on her part as the second place of occurrence was quite far away and there was no light when the incident had taken place after 8.30 pm in the night. Therefore, the narrative of the subsequent occurrence by her is quite untrustworthy. Mr. Sarkar, learned legal aid counsel has strenuously submitted that there was one single blow on the parietal region of the head. Therefore, there was no intention of causing murder of the deceased. Thereafter, Mr. Sarkar, learned legal aid counsel has submitted that the statement of the father of the deceased and the appellant, namely Nikunja Jamatia [PW-8] is also an improved version. PW-10, Ratna Sadhan Jamatia, the uncle of the deceased and the appellant, has stated that the appellant made an extra judicial confession by stating that 'I had murdered my younger brother Surendra, now you can do anything as you like.' Mr. Sarkar, learned legal aid counsel has immediately pointed out that such statement relating to the confession was not at all recorded by the investigating officer under Section 161 of the Cr.P.C. and that is the reason why such statement was not found when the previous statement was shown to the said witness [PW-10]. Fairly, Mr. Sarkar, learned legal aid counsel has submitted that there is lapse on the part of the defence that the said omission was not placed before the investigating officer, while he was testifying, for his comment. Mr. Sarkar, learned legal aid counsel has further submitted that the solitary eye witness can be relied but before relying the solitary witness, the serious caution has to be exercised when the offence is graver in nature whether he or she can be fully trusted or not. If the testimony of PW-1 is read in its entirety, it would be evident that she was describing various narratives and the vital part of her testimony has not been corroborated by the witnesses whose name she had revealed in her complaint [Exbt.P/1]. Thus, Mr. Sarkar, learned legal aid counsel has contended that these are not the minor contradictions. These are the contradictions which have its fatals way in arriving at an appropriate inference beyond reasonable doubt.

[5] While repelling the submission made by Mr. Sarkar, learned legal aid counsel appearing for the appellant, Mr. S. Debnath, learned Addl. P.P. appearing for the state has submitted that the transaction has been well proved. The first part of the occurrence proves the second part. From the defence it could not be demonstrated that any third person was involved or dealt blow on the deceased. Mr. Debnath, learned Addl. P.P. has submitted that some lapses on the part of the investigation will not take away the substance from the entire prosecution case. If the lapses are so vital, those cannot be brushed aside and due inference be drawn. According to Mr. Debnath, learned Addl. P.P. the witnesses had corroborated the part of transaction. Even the extra judicial confession as made by the appellant before PW-9 was not successfully dented by the defence. If the circumstantial evidence along with eye witness account is read cumulatively it would be established beyond reasonable doubt that it is none but the appellant who dealt the blow with the knife and caused the injury which ultimately was the cause for death.

[7] For appreciation of the submission made by the learned counsel appearing for the parties, this court would revisit the evidence in a meaningful manner.

PW-1, Folo Rani Jamatia is the most important witness in the prosecution case. She has stated that on 25.07.2012 at about 8.30 pm when she was taking dinner in the house of the appellant, her husband, Surendra Jamatia [the deceased] went there and asked her to come back home at once. As her husband called her, the appellant [the step brother of the deceased] became furious and attacked her husband with a „dagger‟. Her husband ran away and the appellant chased him to the school field. Anantarnai and Asharani tried to resist but the appellant dealt blows with the dagger on her husband. They took her husband to the house of Asharani and Anantarani, thereafter they took her husband to Maharani PHC and then to Udaipur hospital and thereafter to the GBP hospital. After couple of days, Surendra Jamatia succumbed to the injuries. Thereafter the informant filed the ejahar. No explanation in the trial was given why she had filed the ejahar in a belated stage.

In the cross-examination, certain usual questions were asked about the family relation. She was suggested that the distance between the house of the appellant and the school field is about one kilometer but she denied that suggestion. To a query by the court, she stated that she could see the occurrence from the light of the shops surrounding the place of transaction. The source of light was however introduced for the first time in the trial.

[8] PW-2, Asharani Jamatia whom PW-1 has stated to have seen the occurrence and tried to resist the appellant, turned hostile. She was cross-examined on the basis of the statements she had purportedly made, but she has denied to have made such statement to the police officer.

[9] PW-3, Anantamani Jamatia did state the same thing and therefore, she was also declared hostile and cross-examined by the prosecution.

PW-4, Narayan Chandra Debnath scribed the ejahar at the dictation of Folo Rani Jamatia [PW-1].

[10] PW-5, Hemlata Debbarma, an Asstt. Sub-Inspector of Police posted at the GB TOP had conducted the inquest on the dead body of Surendra Jamatia and prepared the report [Exbt.4].

PW-6, Binanda Hari Jamatia did not reveal anything of material importance.

PW-7, Nanda Sadhan Jamatia is a hearsay witness who heard about the occurrence from PW-1.

[11] PW-8, Nikunja Jamatia, the father of the appellant and the deceased has stated in the trial that he was in the village shop of Kuwaimura school field. Hearing the cry, he went to the school field and saw the crowd there. He has also stated that he saw Surendra Jamatia lying with stab injury. Dharmaraj was seen by him with a dagger in that place. He left the place and absconded thereafter. They took Surendra to the hospital. After 3 days of the occurrence, Surendra succumbed to the injuries. He identified the inquest report where he signed as the witness.

In the cross-examination, he has admitted that he did not inform the police after the occurrence. He has admitted that he married twice. The deceased and the appellant are the step sons.

PW-9, Chandradebi Jamatia is the mother of the deceased. She did not state anything of material importance in the trial.

[12] PW-10, Ratna Sadhan Jamatia has stated that on 25.07.2012 at night he heard the cry in the Kuwaimura school field and he rushed there. Then the appellant stated to him as follows:

"I have murdered my younger brother Surendra now you can do anything as you like."

He has also stated that he along with others took Surendra to Maharani PHC and from there he was shifted to Udaipur and then to GBP hospital where after two days he succumbed to the injuries. He is also the witness to the inquest procedure. He has stated during the cross-examination that he did state to the police officer that Dharmaraj [the appellant] told him that he had killed his younger brother. As such, PW-10 could do anything with him. When the attention of this witness was drawn to his previous statement, recorded under Section 161 of the Cr.P.C., no such statement was found. Therefore, it was required in law that such omission be confirmed by the investigating officer. But as already noted, there was no attempt from the defence for such confirmation from the investigating officer.

[13] PW-11, Bipin Debbarma has investigated. He prepared the site map with index, recorded the statements of the witnesses. He has confirmed that Bindu Jamatia, Sukurani Jamatia and Anantamani Jamatia had stated to him that at once they rushed to the school field and they saw the appellant to hit his younger brother, Surendra Jamatia by dagger. Folo Rani was present there. She tried to resist the appellant but failed. Asharani Jamatia rushed there. Asharani and Folo Rani both tried to resist. In spite of that, the appellant assaulted his bother. Then the villagers came and the appellant began to cry saying that he had killed his younger brother. Those statements had been marked by the investigating officer. After collecting the postmortem examination report from the GBP hospital, Agartala as he found a strong prima-facie case, he had filed the chargesheet against the appellant.

In the cross-examination, PW-11 has stated that Ratna Sadhan Jamatia [PW-10] did not tell him that Dharmaraj told that he could do what he would like. But the part of the statement in respect that, the appellant murdered his younger brother as it appears was not put to the investigating officer and the latter part which is not significant for purpose of either investigation or trial was shown to the investigating officer and he has given his reaction.

[14] PW-12, Dr. Jayanta Sankar Chakraborty is the postmortem Doctor. He has stated that at the relevant point of time he was the Assistant Professor in the department of Forensic Medicine and Toxicology at AGMC & GBP hospital. He conducted the said examination over the dead body of the deceased in connection with GB TOP GDE No.782. On examination, he has stated that he found "one partially healed insized injury, surgically stitched with four nos. of stitches presently obliquely on the left fronto parietal region of scalp, situated 3.8 cm above the eye brow and 11.6 cm left to mid line, size 5 cm X 0.4 cm upto bone deep. That injury was ante mortem in nature and caused by sharp edged object or weapon. Age of injury was 4 days to 5 days at the time of death." He has opined that the cause of death was due to head injury. He admitted the postmortem examination repot [Exbt.P/3.] in the evidence.

[15] After appreciating the evidence, this court does not find any reason to disbelieve the statement of PW-1. Even if how the blows were dealt with is not believed in full but the sequence of the circumstances do eloquently tell that it was none but the appellant has caused the injury which ultimately led to death of Surendra Jamatia. At the same time, it has appeared that from the very beginning, the appellant had no intention at all to kill his younger step brother. He became angry as while PW-1 was attending the diner at his house, the deceased appeared there and asked her wife to immediately go back to home. Then he had chased the deceased to a considerable distance i.e. in the school field of Kuwaimura school where he dealt solitary blow on the parietal region of the head. This court is, therefore, of the view that the culpable act amounts to homicide without any intention of murder. Even the injury does appear to be accidental injury out of the scuffle though it cannot be denied that the appellant was wielded with a knife. Even Mr. Sarkar, learned legal aid counsel has suggested that it is not known what kind of weapon was used as the said weapon was not recovered, even though the appellant was arrested immediately after registration of the case.

Now the question is whether the evidence would fall within Part-I or Part-II of Section 304 of the IPC. As already discussed there was no apparent intention or any intention of causing death. The appellant in the immediate aftermath of the occurrence has expressed his remorse and surrendered to PW-10 to do whatever he might do. Therefore, this culpable act will be covered by 304 (Part-II) of the IPC. As such, the conviction is converted under Section 304(Part-II) of the IPC.

[16] Having noticed all the circumstances, this court is of the view that if the sentence is reduced to 5 years of rigorous imprisonment and fine of Rs.10,000/-, in default of payment of fine to suffer 3 months simple imprisonment would do the justice. Accordingly, the sentence is reduced and it is ordered.

In terms of the above, this appeal stands partly allowed.

Send down the LCRs forthwith.