Kartik @ Jhikna Debbarma And Ors vs State Of Tripura

S. Talapatra, J

All these appeals are consolidated for disposal by a common judgment inasmuch as these are all directed against the same judgment and order dated 22.04.2016 delivered in Case No.ST(WT/K) 47 of 2011.

By the said judgment, the appellant in Crl.A.(J)37 of 2016 [Kartik @ Jhikna Debbarma versus State of Tripura] was convicted under Section 302 read with Section 149 of the IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs.10,000/- with default stipulation. The said appellant has also been convicted under Section 326 read with Section 149 of the IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs.5000/- with default stipulation. Both the sentences are directed to run concurrently. Similarly, the appellant in Crl.A.(J)38 of 2016 namely Ashoke Debbarma @ Ashok versus State of Tripura and the appellant in Crl.A.(J)39 of 2016 namely Sri Sonai Debbarma @ Brajendra versus State of Tripura have been convicted under Section 302 read with Section 149 of the IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs.5000/- with default stipulation. They are also convicted under Section 326 read with Section 149 of the IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs.10000/- with default stipulation. Both the sentences are directed to run concurrently.

The genesis of the prosecution case is rooted in the complaint filed by one Nitai Sarkar [PW-31] revealing to the Officer-in-Charge, Kalyanpur Police Station that on 15.08.2003 at about 21.30 hrs. when he was proceeding towards Moharchara market place, he heard the gunshots from the end of his house. There were shrill cries of people from that end amidst the gunshots. In the meantime, the police vehicle carrying police personnel appeared there. Later on, he discovered that in the occurrence, 20 to 25 extremists were involved. In the incident, Ranjit Debnath, Lata Debnath, Harendra Sarkar, Narendra Sarkar and his wife, Lob Sarkar, the son of Narendra Sarkar, minor son of Monaranjan Sarkar, Suniti Sarkar, mother of Premananda Sarkar and mother of Haridhan Sarkar were killed and seven other persons were seriously injured.

On the basis of the said information lodged by PW-31, Kalyanpur P.S. Case No.38 of 2003 under Section 148/149/326/302 of the IPC was registered and taken up for investigation. After completion of the investigation, the police report was filed sending up the appellants along with others for facing the trial. The police papers were committed to the Additional Sessions Judge, West Tripura. Khowai. The said case was re-registered as ST(WT/K) 47 of 2011. Apart three appellants, against fourteen other co-accused namely Birendra Debbarma, Bishu Rai Debbarma, Santi Kumar Debbarma, Phenerai Debbarma, Laxmi Charan Debbarma, Swapan Debbarma, Tapash Debbarma, Abhijit Debbarma, Rathindra Debbarma, Dhan Kumar Debbarma @ Arowa @ Bora, Bikash Debbarma, Sachindra Debbarma, Raj Kumar Debbarma and Sushil Debbarma, the charge was framed under Section 302 read with Section 149 of the IPC, Section 326 read with Section 149, Section 307 read with Section 149 of the IPC and 27(1) and (3) of the Arms Act read with Section 149 of the IPC for killing fourteen persons and injuring critically ten persons in the said violent attack grievously. The appellant and other co-accused pleaded not guilty and claimed to be tried.

In order to substantiate the case, the prosecution adduced as many as 38(thirty eight) witnesses including the informant and the injured witnesses and introduced documentary evidence viz., the postmortem report of the persons who were killed, injury report of the injured persons, the dead body challans, inquest reports etc. After the prosecution evidence was recorded, each of the accused persons were examined under Section 313 of the IPC, where the appellant and the other accused persons repeated their plea of innocence by stating the evidence as fabricated against them.

It would be apparent that the main shaft of the defence is denial of involvement of the appellants and other accused persons. From the defence, no evidence was advanced and on appreciation of the evidence as led by the prosecution, the appellants are convicted and sentenced by the judgment dated 22.04.2016. The said judgment is under challenge in these appeals. The other accused persons except the appellants herein, were acquitted on benefit of doubt inasmuch as, against them, there was no clinching evidence to hold beyond reasonable doubt that they were involved in the said occurrence. The trial judge acquitted the other accused persons by observing as follows:

"Now from above discussion I came to a decision that the prosecution case is not proved against 1. Birendra Debbarma, 2. Bishurai Debbarma, 3. Santi Kr. Debbarma, 4. Phenarai Debbarma, 5. Laxmi Charan Debbarma, 6. Swapan Debbarma, 7. Tapash Debbarma, 8. Abhijit Debbarma, 9. Rathindra Debbarma, 10. Dhan Kr. Debbarma, 11. Bikash Debbarma, 12. Sachindra Debbarma, 13. Raj Kumar Debbarma and 14. Sushil Debbarma and as such I hereby acquitted the accuse persons named above from the liability of this case. Henceforth they are set at liberty. Their surety if any are also here by discharged from the liability of this case."

There is no appeal against the judgment of acquittal in respect of those accused persons.

Learned counsel for the appellants have quite strenuously submitted that the identity of three appellants was not established. Even, Test Identification Parade (TIP) was not carried out for purpose of leading the substantive evidence. TI parade is a rule of prudence to increase the probative value of identification in the court room.

The trial Judge, on appreciation of the evidence, has observed that PW-6, Smt. Swapna Debnath identified some of the assailants when they had forcefully opened the door of her hut. She had identified Swapan Debbarma and Sonai Debbarma. PW-6 is the injured witness. She has stated that she was hit on her hand by a bullet. On the night of occurrence, house of PW-6 was attacked by some persons armed with weapons. Her husband and her daughter succumbed to the bullet injuries and expired. She has somehow escaped the death.

PW-7, Smt. Suradhani Debnath revealed that 'Kupi bati' (lamp) was burning in her house. The assailants entered in the hut by breaking the door and started firing from their arms. PW-7 sustained bullet injuries on her right and left hand and also in her left eye. Her husband was severely injured and died in Kolkata due to bullet injures. Her younger son namely Shymal died on the spot. She could indentify Ashoke Debbarma @ Ashok and Swapan Debbarma.

On scrutiny of the records, it appears that the charge was framed against Swapan Debbarma but the trial Judge acquitted him from the liability of the crime. As stated earlier, there is no appeal against the judgment of acquittal.

PW-10, Sanjoy Sarkar while narrating the occurrence to which he was the eye witness has stated that the terrorist attacked their village with sophisticated weapons in their hands and at that time, he was in the house of Subhash Das. Hearing the bleating of the goats, he became alert and noticed that his mother out of curiosity stepped toward some persons and by this time, those persons arrived there and had introduced them as police personnel and immediately they started firing towards his mother and them. In order to save him, he ran away but Uttam Das [son of Subhash Das] sustained bullet injuries in the courtyard of that house. There was electric light and for that, he could identify those persons by that light. The persons who were identified by him were Sonai Debbarma @ Brajendra and Kartik @ Jhikna Debbarma who were inhabitants of his village and thus, they were known to him [as recorded in Para-17 of the judgment which is under challenge]. According to the trial Judge, PWs-6, 7 and 10 are the eye witnesses of the witness by whom some of the accused persons were identified. In Para-22, the trial Judge has observed as under :

"In the present case, PW-6 and PW-7 are themselves victims. While mother of PW-10 was killed by miscreants. But they have identified Ashoke, Sonai charan and Zikna in the open court, during trial which is a substantive evidence and such identification made by the eye witnesses, has not been shaken or controverted. It is also in their evidence that said three accused persons are known to the witnesses by name and face. As such holding of T.I. parade was not at all called for.

Furthermore said accused persons had been absconding after the occurrence. From the arrest memo it appears that accused Sonai was arrested on 25.02.2007 i.e. after lapse of 3 and half years of the incident. Accused Kartik Debbarma @ Zikna was arrested on 27.01.2004 and accused Ashoke Debbarma was arrested on 01.10.2003. The abscond of the accused persons, as a conduct, is, therefore, relevant and ought to be considered along with other relevant evidence on record.

It is not the case of defence that the accused Ashoke, Sonai charan and Zikna were not known to PWs-6,7 and 10. Rather a suggestion only put to P.W. 6 that Swapan and Sonai were not identified by this witness. While P.W. 7 in her cross-examination to a question of defence clearly answered. The extremists had entered into the hut by cutting the door and then she had seen them and thereafter they opened the fire towards them". P.W. 10 in his examination-in-chief also specifically stated that Sonai and Zinka used to stay in their locality prior to 5/6 years of the incident. Even in his cross-examination he deposed that there was a tribal belt and all the tribal of that belt left the area before 5 years of the incident and that time he was 10/12 years old.

From the evidence of PW-6 it is clear that due to firing by the miscreants her husband, her daughter Gandhari sustained bullet injury and died. She also sustained bullet injury in her left hand. Even her daughter Kakali sustained bullet injury.

From the evidence of PW-25 it is clear that PW-6 sustained bullet injury in her left forearm and this Doctor attended her at GB Hospital.

From the evidence of PW-35 it is clear that daughter of PW-6 namely, Gandhari died out of bullet injury.

From the evidence of PW-29 it reveals that Kakali also sustained injuries out of gunshot.

Similarly from the evidence of PW-7 we find that she sustain bullet injury in her both hands and in left eye. Her husband was severely injured and died at Kolkata. Her one year old son namely, Shyamal died on the spot."

Mr. S. Ghosh, learned Special P.P. appearing for the State did not question that finding of the trial Judge in Para-22 of the judgment of conviction that the conviction has been returned entirely on the evidence of PWs-6, 7 and 10. According to him, the evidence of PWs-6, 7 and 10 are consistent and corroborative and hence, there cannot be any difficulty to rely those statements.

Mr. S. Kar Bhowmik, learned counsel appearing for the appellant in Crl.A.(J)No.37 of 2016 has urged this court to scrutinize the statement of PWs-6, 7 and 10 as he has agreed that on the evidence of PWs 6,7 and 10 the finding of conviction has been returned.

PW-6, Swapna Debnath has made the categorical statement in the trial that some terrorists with sophisticated arms and torch lights forcefully opened the door and they through their torch light totally lighted up the room. Thereafter, she has made the following statement :

"Some of those persons covered their faces with black clothes but amongst them I could identify two persons they are namely, Swapan Debbarma and Sonai Charan Debbarma."

PW-6 identified Sonai Charan Debbarma as the assailant and none else. Even though, on that day, Kartik @ Jhikna Debbarma was present on the dock. She did not identify Kartik @ Jhikna Debbarma as the assailant. Her statement, however, was not dented in the cross-examination on the materials aspects.

PW-7, Suradhani Debnath has stated as follows :

"Amongst the terrorist I could identify two persons who are not covering their faces. They are Ashoke Debbarma and Swapan Debbarma. They used to stay in our locality and used to visit our house."

The trial Judge has thereafter recorded his observation that amongst the accused persons present before the court, PW-7 could only identify Ashoke Debbarma but she failed to identify Swapan Debbarma. But the burning 'Kupi bati' (lamp) in her hut was not part of her 161 statement.

PW-10, Sanjay Sarkar has stated, which is relevant for purpose of identification, as follows :

"In the courtyard of that house there was electric light and I had seen them in the light of electric bulb. Amongst the extremists I could identify Sonai Debbarma and Zikna Debbarma. They used to stay in our locality and prior to 5/6 years of the said incident, they left our area. So, I know them very well."

The trial Judge, thereafter, recorded that the accused persons who were present in the court room, PW-10 after making that statement could identify only Sonai Debbarma, but not Kartik @ Jhikna Debbarma. On that day, Jhikna was present in the court room by filing memorandum of appearance.

Mr. Kar Bhowmik, learned counsel has therefore submitted that the conviction of Kartik @ Jhikna Debbarma are totally without any legal evidence and thus, Kartik @ Jhikna Debbarma, the appellant in Crl.A.(J)37 of 2016 are liable to be acquitted from the charge as his identify or involvement has not been established at all.

This court is in agreement with the submission of Mr. Kar Bhowmik, learned counsel appearing for the appellant in Crl.A.(J)37 of 2016 and hence, so far the conviction of Kartik @ Jhikna Debbarma, the appellant in Crl.A.(J)37 of 2016 are liable to be set aside and accordingly, it is set aside.

Mr. D.C. Saha, learned counsel and Mr. N. Majumder, learned counsel appearing for the remaining appellants has quite strenuously persuaded this court that these witnesses are the planted witness and as such, they cannot be relied. They have relied on the testimony of Sri Arun Roy, one of the Investigating Officer [PW-28] where he has stated that he recorded the statement of Swapna Debnath [PW-6] and Suradhani Debnath [PW-7] on 24.08.2003 almost after ten days of the occurrence. According to them, the belated recording of the statement always suspecting and as such, the remaining two appellants are as well entitled to acquittal.

Reference has been made to the response of Ashoke Debbarma while he was being examined under Section 313 of the IPC. Amongst the terrorists, PW-6 could identify two persons who were not covering their faces and they were Ashoke Debbarma and Swapan Debbarma. The appellant, Ashoke Debbarma responded and stated that the statement is totally false.

On revisiting the evidence as recorded in the trial, it has transpired that PWs-6, 7 and 10 identified the appellants namely Ashoke Debbarma @ Ashok and Sonai Debbarma @ Brajendra very categorically in the trial with adequate corroboration to satisfy the standard of 'beyond reasonable doubt'.

The apex court in Ashok Debbarma alias Achak Debbarma versus State of Tripura reported in (2014) 4 SCC 747 had observed in respect of the accused's profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. In Krishnan versus State represented by Inspector of Police reported in (2003) 7 SCC 56, the apex court had occasion to observe as under :

"Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than 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."

No such doubt has visited to eclipse the probative value of the statements of PWs-6, 7 and 10 while they identified Sonai Charan Debbarma @ Sonai @ Brajendra and Ashoke Debbarma @ Ashok.

PW-10, even though had stated that in the light of the electric bulb, he could identify Sonai Debbarma and Jhikna Debbarma, but in the trial, he could identify only Sonai Debbarma but not Jhikna Debbarma. Even though, Jhikna was present in the trial.

On assessment of the evidence of this witnesses, we do not have any amount of doubt in our mind that by means of the testimonies of PWs-6, 7 and 10, the prosecution has robustly established that the appellants namely Ashoke Debbarma @ Ashok in Crl.A.(J)38 of 2016 and Sonai Debbarma @ Brajendra, the appellant in Crl.A.(J)39 of 2016 were involved in the massacre, murder and murderous assault. There cannot be any earthly reason why the evidence of eye witnesses [PWs 6, 7 and 10] should be discarded by the court.

True it is that the finding of the trial Judge that Kartik @ Jhikna Debbarma has been identified by those witnesses [PWs 6, 7 and 10] is not sustainable, but no interference in the finding, particularly, in respect of Ashoke Debbarma @ Ashok and Sonai Debbarma alias Brajendra are called for in view of adequacy of the evidence coming from PWs 6, 7 and 10.

Thus, the appeals being Crl.A.(J)38 of 2016 [Ashoke Debbarma @ Ashok versus State of Tripura] and Crl.A.(J) 39 of 2016 [Sonai Debbarma alias Brajendra versus State of Tripura] are bereft of merit and accordingly, those two appeals are dismissed. However, the appeal being Crl.A.(J)37 of 2016 [Kartik @ Jhikna Debbarma versus State of Tripura] is allowed in view of the observation made above. The appellant in Crl.A.(J)37 of 2016 [Kartik @ Jhikna Debbarma] shall be released forthwith, if not wanted in any other case.

Send down the LCRs forthwith.