Krishna Debnath vs State Of Tripura

This appeal is directed against the judgment and order of conviction and sentence dated 05.01.2019, passed by the learned Additional Sessions Judge, West Tripura, Agartala, in Case No. ST(T- 1)/61 of 2016 whereby and whereunder the appellant has been convicted under Sections 302 of the Indian Penal Code (for short, IPC) and sentenced to suffer R.I. for life and to pay a fine of `20,000/- with default stipulation.

Briefly stated that Sri Krishna Kumar Debnath being the brother of the victim lodged a complaint to the Officer-in-Charge, East Agartala Police Station, inter alia, stating that his brother-in-law i.e. the appellant, used to torture his deceased sister and on 28.03.2016 at around 10:00 am in the morning he received an information that his sister was ill. He rushed to the house of the appellant and found his sister lying dead in their kitchen hut and it was his strong belief that the appellant had killed his sister.

FIR was registered on the basis of the said complaint. Being endorsed the investigating officer carried out investigation and during the process he examined and recorded the statements of the available witnesses, arranged for postmortem examination over the dead body of the deceased, prepared inquest report, sent viscera sample of deceased to the State Forensic Science Laboratory for examination and subsequently collected the report and also arranged for recording statement of witness Jhantu Debnath under Section 164(5) of CrPC.

Having satisfied with the prima facie case, the IO submitted charge-sheet against the appellant under Section 498A and 302 of IPC. Being committed and at the commencement of trial, charges were framed against the accused-appellant under Section 498A/302 of IPC to which he pleaded not guilty and claimed to be tried.

To substantiate the charges, prosecution examined as many as 10 (ten) witnesses including the informant, Doctor and the IO of the case.

At the closure of evidence, accused-appellant was examined under Section 313, CrPC when he was noticed about all the incriminating evidences surfaced against him from the prosecution witnesses to which he denied all the allegations levelled against him and pleaded his innocence. However, the accused-appellant also had produced three witnesses on his behalf to defend his case.

Having heard the learned counsels appearing for the parties and on consideration of the evidence and materials brought on record, the learned Additional Sessions Judge did not find sufficient material in support of the charges framed against accused-appellant under Section 498A of IPC but held that the prosecution has been able to prove the charge under Section 302 of IPC as aforestated.

Being aggrieved by the said judgment and order of conviction and sentence, the appellant being the husband of the victim Kajal Rani Debnath, has preferred the instant appeal and prayed for acquittal.

We have heard Mr. P.K.Biswas, learned Sr. counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellant. Also heard Mr. S. Debnath, learned Additional Public Prosecutor appearing on behalf of the State-respondent.

Mr. Biswas, learned Sr. counsel would contend that the prosecution has miserably failed to establish the charge under Section 302 of IPC framed against the appellant beyond reasonable doubt. According to learned Sr. counsel, the learned trial Judge failed to appreciate the evidence and materials on record in its proper perspective. Mr. Biswas, learned Sr. counsel has tried to persuade this court that there were lots of discrepancies and improvements emanated in the versions of the prosecution witnesses. Learned Sr. counsel has further argued that PW-2 and PW-4 were not at all believable because of their improved versions. Many of their vital statements which they deposed in their examination-in-chief were found to be absent in their earlier statements recorded under Section 161, CrPC. Mr. Biswas, learned Sr. counsel has strongly argued that it was clear case of suicide.

From the other side, Mr. Debnath, learned Addl. P.P. made robust endeavour to refute the submission of Mr. Biswas, learned Sr. counsel for the appellant. He submitted that the reason as assigned by the trial Court could not in any way be said to be faulted. Leaned Addl. P.P. further contended that a keen reading of the evidentiary materials would show that it was none but the appellant who committed the murder of his wife by strangulation. According to learned Addl. P.P., prosecution had been able to prove that the appellant was at the house immediately after the incident, so, he had special knowledge as to how the incident had occurred. But he failed to give any plausible explanation about the cause of death of his wife. He further argued that there was no reason to discard the evidence of PW-2 and PW-4. More so, drawing our attention to the evidence of Dr.Juthika Debbarma, learned Addl. P.P. candidly submitted that the Doctor clearly opined that the death was due to asphyxia as a result of ligature strangulation. Based on those evidences and materials, learned Addl. P.P. prayed for upholding the judgment of the trial court.

Having appreciated the arguments advanced by the learned counsels appearing for the parties, it transpires that PW-2, PW-4 and PW-7 are the star witnesses in the instant case. It is worthy to mention here that the appellant adduced evidence in his defence and took the plea of alibi.

Let us have a short survey of the evidence as adduced by the parties.

PW-1 Sri Krishna Kumar Debnath is the complainant. He deposed that the appellant used to suspect the chastity of his deceased wife and on 28.03.2016 he received an information that condition of his sister was not good and he rushed to their house when he found his sister Kajal lying on the floor of the kitchen and blood was oozing out from her ear. He also noticed one reddish spot on her neck and saliva was coming out from her mouth. Police arrived at the spot at about 11:00 am. He found the appellant Krishna Debnath sitting at verandah (corridor) while the body of his sister Kajal was inside their southern viti hut. He further deposed that before his arrival to the place of occurrence, many neighbouring people arrived there and he also saw Pradip Debnath, Tulsi Debnath, Monmohani Debnath at the place of occurrence. He also put his signature in the seizure list and on the inquest report.

During cross-examination, he confirmed that Pradip Debnath, Tulshi Debnath, Monmohani Debnath arrived at the spot before his arrival. He denied the suggestion that the appellant was not suspicious. During cross-examination, PW-1 further stated that in his ejahar he did not mention that when he reached at the spot he found Kajal lying on the floor and blood was oozing out from her ear and he found one reddish spot and saliva was coming from her mouth.

PW-2, Sri Pradip Debnath deposed that the deceased was his sister-in-law (wife's elder sister) and accused-appellant was the husband of the deceased. He deposed that on 28.03.2016 in the morning he himself along with his wife was returning on foot after completing their personal work. On the way, his wife asked him to visit her sister's house i.e. the house of Kajal Rani Debnath. Accordingly, at around 9-30/9-45 hours, they went to the house of Kajal and on seeing them, the husband of Kajal came out from the kitchen room and he was holding the ring of lock of the door and was also sweating. The appellant was seemed to be tired. They enquired about Kajal when the appellant replied that Kajal had gone towards their house. PW-2 and his wife further enquired about the health status of the appellant, in reply to which he told that his blood pressure had gone up. Thereafter they came back to their house but did not find Kajal in their house. At that time a boy came and informed that his aunt was lying on the floor of kitchen. Then, both he and his wife again went to the house of Kajal where they found Kajal was lying on the floor of the kitchen and blood oozing out from her ear and also noticed one reddish spot on her neck. He also found gathering at the place of occurrence.

During cross-examination, he stated that he had no personal knowledge about any dispute in between the accused and his wife. Being confronted, his attention was drawn to his previous statement recorded under Section 161 CrPC when it was found that the statement he made in his examination-in-chief that- "at the place of occurrence he found the body of Kajal Rani was lying on the floor of the kitchen and blood oozing out from her ear and that he noticed one reddish spot on her neck" was not found there. During cross- examination, he further stated that he had good relation with the complainant.

PW-4, Smt. Tulshi Rani Debnath is the younger sister of the deceased Kajal Rani Debnath and the wife of PW-2 who went to the house of Kajal and the appellant when they were returning to their home in the morning after completing their work. During her deposition she completely corroborated the facts and circumstances as deposed by PW-2 that she along with PW-2 went to the house of the appellant at around 9:30/10:00 am and as soon as they entered into the house, the appellant came out from the kitchen and was standing in front of the door by holding the bolt of the door. She further deposed that the appellant was found to be sweating and trembling. Then, she and PW-2 enquired about the whereabouts of his sister Kajal Rani. In reply, the appellant stated that her sister Kajal had gone to their house. They came back to their house but did not find her sister. She also searched her sister in the house of her brother but did not find her. Then, she visited the house of Monmohini Debnath, but, there also her sister was not found. Subsequently, a young boy came and informed them that her sister was lying on the floor of the kitchen. They immediately rushed to the place of occurrence. She further deposed that the house of the appellant was about 10 to 15 minutes walking distance from their house. She found the appellant in the house.

Being confronted with cross-examination, her statement that-"when they entered into the house of her deceased sister, the appellant came out from the kitchen and was standing in front of the door and that he was sweating and trembling and that she searched for her sister as she was not found in their house" were found to be absent in her previous statement recorded under Section 161 CrPC.

PW-6, Sri Mintu Debnath being the son of the deceased has resiled from his previous statement and he was declared hostile.

Next vital witness is PW-7. Dr. Juthika Debbarma. She deposed that on 29.03.2016 she was posted at AGMC and GBP Hospital as Assistant Professor in the Department of Forensic Medicine and Toxicology. On that day she along with Dr. Pradipta Narayan Chakraborty conducted the postmortem examination on the body of the deceased Kajal Rani Debnath. They started autopsy at 12:00 pm and it was concluded by 01:30 pm. In course of postmortem examination, they found the following injuries:

"1. One reddish brown colour ligature mark 09cm x 04 cm is present horizontally on the lower part of front of neck on the left side which extends from 08 cm below the chin upto 07 cm below the tip of left mastoid process. On dissection of subcutaneous underneath this ligature mark is white and glistening. Bruising is present in the underling l strap muscles of neck on left side. The hyoid bone, thyroid cartilage, cricoids cartilage and intima of both the carotid arteries are found to be intact.

One reddish coloured contused abrasion, 05cm x 25 cm is present on the lower part of the right side of the neck which is situated just over the sternoclavicular joint on right side. On dissection bruising is present in the underlying subcutaneous tissue and muscles of the neck beneath this injury .

Multiple abrasions (Five in number) ranging in measurement from 0.5 cm X 0.5 cm upto 1cm x 0.5 cm are present on the right angle of mouth, right side of upper lip, right side of lower lip and two on left side of chin. The above injuries were ante mortem in nature and fresh in duration.

In our considered opinion the cause of death is asphyxia as a result of ligature strangulation. Subsequently, on receipt of toxicological analysis report it was detected that viscera sample were found negative for the presence of common organochloro, organophosphorous, Pyrethroids and carbamate group of pesticides. There was no associate poisoning."

During cross-examination by defence, the Doctor stated that "It is not possible to occur such injury as was found in her neck if a person while attempting to commit suicide by hanging all on a sudden falls down by dissection of the rope used for hanging .It is not a fact that the injury which we have found mentioned in our report were not found at all on the body of deceased." The witness volunteered that on perusal of other injuries found in the neck after dissection they opined that it was by strangulation.

PW-10, Smt. Kajal Rani Das is the IO.

To take the plea of alibi, the appellant had adduced three witnesses, namely, Sri Jhantu Debnath (DW-1), Sri Khuku Rani Debnath (DW-2) and Smt. Suradhani Debnath (DW-3).

21.1 DW-1 is the son of the accused-appellant. He deposed that his father and his youngest brother used to go to their business place at 5:30 hours in the morning and he himself goes out for his work at about 8:00 am in the morning. His another brother also used to go for his work at about 7:00 am in the morning. He used to return to his house in the evening. His father and his youngest brother used to come back for their house to take lunch at about 2:30 pm and again they used to go to their place of work. DW-1 further deposed that on the fateful day he received a phone call from Pranab Debnath when he was asked to come back to his house. But he did not find his father and other brothers and after about one hour they came to the house.

21.2 DW-2, Smt. Khuku Rani Debnath deposed that accused Krishna Debnath was her brother-in-law and she just reiterated the version of DW-1.

21.3 DW-3, Smt. Suradhani Debnath, a neighbour deposed that after hearing hue and cry, she went to the house of the appellant but did not find appellant and after about one hour of her arrival, the appellant and his three sons arrived at the spot.

On careful scrutiny of the oral testimonies of the defence witnesses, it is manifested that the defence tried to make out a case that before the incident, the appellant had left the house for his business purpose and at the time of incident, absence at the place of occurrence should not be doubted. But, in our opinion, there is no satisfactory evidence even by applying the principle of preponderance of probability that it was absolutely improbable and impossible for the accused-appellant to come and commit the offence, even we believe the fact for a moment that he has left the house at 5:30 am to participate in his business. To uphold the plea of alibi, the accused has to prove that at the time of occurrence of the offence, he was at such a distant place wherefrom it appears to be impossible and improbable to come to the place of occurrence and participate in the crime. None of the defence witnesses have stated that it was absolutely improbable and impossible for the accused to come to the place of occurrence from the place of his business. In addition, DW-1 has not specifically stated in his evidence that he had seen the accused to leave his house at morning. DW-2 also has made a general statement about the usual course of the business of the accused. She had no idea what had happened since morning till 10:30 am at the hut of the accused- appellant and the deceased. From her evidence, it is revealed that she came to know about the incident after 10/10:30 am. Similarly, DW-3 also had no idea what happened between early morning hours and before her arrival at the house of the accused at 11:00 am. As such, the evidence of DWs has not instilled confidence upon us and thus we repel the plea of alibi.

Now, returning to the evidence of the prosecution witnesses, particularly, PW-2 and PW-4 it is transpired that the circumstance that PW-2 and PW-4 were returning to their home and on the way PW-4 expressed her desire to PW-2 to visit her sister's house. Accordingly, PW-2 and PW-4 entered into the hut of the appellant and the deceased. They found the appellant was standing at the door of the kitchen. They enquired about the deceased when the appellant told them that the deceased went to their house. Both, PW-2 and PW-4 appear to be consistent in their statements that they found the appellant nervous who was sweating at that time. On query, he apprised them that his pressure had gone up. The next circumstance, that PW-2 and PW-4 came back to their house, but, did not find the deceased. They enquired about the deceased and they visited the house of Smt. Monmohini Debnath (PW-3) but did not find. Thereafter, they also enquired about the whereabouts of the deceased from PW-1, i.e. the brother-complainant, within a short while. PW-3 in her evidence had confirmed that PW-2 and PW-4 visited her home to enquire as to whether the wife of the appellant went to her house. The next circumstance that within a short while, one young boy had rushed to their house and informed that the deceased was lying in the kitchen room of the appellant and they immediately rushed to the house of the deceased where they found the body of the deceased lying on the floor of the kitchen. Many of the prosecution witnesses noticed blood and saliva were coming out from her mouth and also a red spot around her neck. The Doctor, PW-7 is very specific and consistent in her opinion that the cause of death in this case is asphyxia as a result of ligature strangulation. All the injuries mentioned in the report are ante mortem in nature and fresh in duration. The Doctor is found to be confident that the injuries found in the neck after dissection have been caused by strangulation. Doctor has brushed aside the plea of the defence that such injuries also may be caused in case of suicide. Besides, the postmortem report reveals multiple abrasions (Five in number) ranging in measurement from 0.5 cm X 0.5 cm upto 1cm x 0.5 cm were present on the right angle of mouth, right side of upper lip, right side of lower lip and two on left side of chin. These marks of injuries on the face and mouth of the deceased further bolsters the circumstance that the perpetrator of the crime made a valiant attempt to silent her so that she cannot raise any alarm. The postmortem report and the evidence of PW-7 have left no room for us to doubt the presence of the accused at the site of crime. Further, the injuries detected in the postmortem report have led us to come to a clear finding that the deceased died out of asphyxia due to strangulation and since it is a clear case of homicidal, in our opinion, undoubtedly it points towards the guilt of the accused-appellant and none else. If all the circumstances as aforestated are juxtaposed, it will only throw a light towards the guilt of the accused-appellant. The evidence of PW-2 and PW-4 regarding the circumstances that they had seen the accused in front of the door of the kitchen and he was sweating and trembling have been proved beyond reasonable doubt and instill confidence upon us. The appellant fails to come forward with any reasonable plausible explanation as to how his deceased wife had sustained such injuries as emanated in the postmortem report as well as in the evidence of PW-7.

In our ultimate analysis, it was none but the appellant who was solely responsible to cause death of his wife by way of strangulation. Having held so, the instant appeal filed by the accused- appellant stands dismissed.

Send down the LCRs.