Maran Sarkar vs State Of Tripura

Akil Kureshi, CJ

[1] This appeal is filed by the original accused No. 1, who has been convicted by the learned Sessions Judge for offence under Section-302 of IPC and sentenced to undergo life imprisonment in addition to payment of fine of Rs.5,000/-.

[2] Prosecution version stated in brief is as under:

On 16.11.2000 deceased Ratan Biswas had an altercation with the appellant Maran Sarkar at a public place. He was threatened by the appellant that he would kill him. Ratan Biswas left his house at 10.30 night on the said day. His dead body was found carrying multiple injuries the next day. An FIR was lodged by his wife alleging that on 16.11.2000 her husband had returned home at about 9.00 o'clock at night after selling fish. He left the house for a brief while and returned where he told his wife that the accused Maran Sarkar had threatened to kill him. Later at night the husband again left the house. Next day morning, she was informed that his dead body was found at a nearby colony. The dead body was carrying injuries caused by sharp weapon.

[3] Upon completion of the investigation the prosecution filed charge-sheet against the appellant Maran Sarkar and one Salim Mia @ Saha Alam. The said accused No. 2 was however acquitted. There is no State appeal against the acquittal.

[4] PW-1 brother-in-law of the deceased, i.e. the brother of his wife. Sankar Banik had deposed that on 16.11.2000 at about 9.30pm while he was having his meal at his home, he learnt that Ratan Biswas had a quarrel with Maran Sarkar and one Satul Pal. He went to the spot and found that his deceased brother-in-law was at the shop of Satul Pal and Salam Mia, Raju Acharjee and accused Maran Sarkar. They were talking to each other near a shop. His brother-in-law and the rest proceeded towards the Muslim colony. He told the witness to return to his house and that is how he went away. Satul Pal told him that there was a quarrel between his brother-in-law and Maran Sarkar. After that the deceased went to his house and again came at the shop for making some purchases and went away with Salim Mia, Raju Acharjee and Maran Sarkar. Next day his dead body was found from the field.

[5] PW-4 Amarchand Biswas was present in the shop of Satul Pal on the night on 16.11.2000. He had seen Maran Sarkar and Ratan Biswas having an altercation. They were abusing each other. He and others separated them from the place. He then left for his house and next day he heard that the dead body of the deceased was found from Adarsha Colony.

[6] Sima Biswas wife of the deceased was examined as PW-8, she deposed that her husband had returned home at 9.00 o'clock from the market. She had prepared the meal. Husband left the house, sometime later returned and told her that Maran Sarkar had threatened to kill him. At 10.30 again the husband left the house after which he did not return. She made inquiries but found that her husband had gone towards Muslimpara along with Maran Sarkar, Raju Acharjee and Saha Alam. Her brother Sankar Banik told her about the altercation between her husband and Maran Sarkar. Next day in the morning she was informed about the death of her husband.

[7] PW-12 Tapan Biswas, the younger brother of the deceased deposed that the decease had told him that on 16.11.2000 there was altercation between him and Maran Sarkar and that Maran Sarkar had threatened to kill him. He claimed that he had seen his brother going with Maran Sarkar, Raju Acharjee and Saha Alam towards Muslimpara after which his brother did not return.

[8] The police had recovered a Dao, a sharp cutting weapon allegedly used for causing the murder at the instance of the accused. However, the punch witness PW-3 turned hostile and did not support the prosecution.

[9] PW-5 Dr. Ranjit Kr. Das had carried out the postmortem of the deceased. He produced the postmortem report before this Court in which he had indicated multiple lacerated incised wounds and cut marks on the body. According to him the cause of death was shock and hemorrhage due to multiple injuries caused by sharp cutting, stabbing and heavy sharp weapon.

[10] PW-13 Manindra Ghosh was the Investigating Officer. He referred to the discovery of a Dao at the instance of the accused. He however, did not refer to the specific discovery statement made by the accused. These are the important witnesses.

[11] Based on such evidence on record learned counsel for the appellant submitted that the trial court committed serious error in convicting the accused. Entire case was based on circumstantial evidence. The chain of events pointing to the guilt of the accused was not complete. The discovery of the murder weapon was not proved. The Dao recovered by the police was never sent for forensic analysis. The punch witnesses had not recorded presence of bloodstains on the weapon neither motive for commission of the offence, nor the last seen theory were proved.

[12] On the other hand, learned Addl. P.P. opposed the appeal contending that all important circumstances were duly established. In his opinion, the prosecution case was proved through the following factors.

(a) Quarrel between the deceased and the accused shortly before the incident.

(b) The threat given by the accused.

(c) The accused and the deceased were last seen together.

(d) Discovery of the murder weapon at the instance of the accused; and

(e) His conduct of absconding for close to 5(five) years after the incident.

[13] Clearly the prosecution rests only on circumstantial evidence. As is settled through series of judgments in a case based only on circumstantial evidence, each circumstance must be established through cogent evidence, such circumstances must form a complete chain of events leading to only one hypothesis that of the guilt of the accused to the exclusion of any other theory. Only then, the conviction of the accused can be recorded. In the present case, as the assessment of evidence by us would demonstrate, no such circumstances were established, nor such circumstances could be said to form a complete chain pointing unerringly to the guilt of the accused. We may take each circumstance on which the learned Addl. P.P. and the prosecution have placed reliance.

[14] The theory of the altercation between the accused and the deceased was sought to be brought on record through the evidence of PW-1 the brother-in-law of the deceased, PW-4 Amarchand Biswas a bystander, PW-8 the wife of the deceased and PW-12 the younger brother of the deceased. Insofar as PWs-1, 8 and 12 are concerned, their information of such altercation is purely in the nature of hearsay. Sankar Banik, PW-1 though went to the tea stall where the deceased, the accused and other persons were present however, he himself never claimed to have witnessed the altercation. PW-8 the wife of the deceased also merely stated that her husband had told her about the threat given by the accused. Likewise, PW-12 the brother of the deceased also had no personal knowledge about any altercation between the accused and the deceased. Insofar as PW-4 is concerned, he did refer to some altercation between the deceased, the accused and other persons. However, he did not refer to the cause of such quarrel, the nature of the quarrel or provide any other information with respect to such altercation. Only one eye witness referring to such altercation without any further details of such so called quarrel, will not provide sufficient proof of any such altercation.

[15] The threat allegedly given by the deceased to the accused also is in the realm of hearsay evidence. All the witnesses i.e. PW-1, PW-8 and PW-12 the relatives of the deceased had quoted the deceased having conveyed to them that he was threatened by the accused.

[16] The last seen theory is also on a shaky ground. PW-1, who referred to having seen the deceased going along with the accused and other persons towards Muslim colony on the night of the incident, stated that he was told by the deceased to go home. To this aspect, we would refer slightly later. The wife of the deceased PW-8 obviously said nothing about the last seen together. According to her, her husband left the home at about 10.30 after which he did not return. The younger brother of the deceased PW-12 didn't mention that he had seen him going with Maran Sarkar, Raju Acharjee and Saha Alam towards Muhammadan Para.

[17] The evidence of both these witnesses, PW-1 and PW-12 in the context of last seen together theory must be weighed very carefully. There were many other independent witnesses the prosecution could have so easily examined those who would have seen these people going together late at night. More curious aspect of the matter is, that according to the prosecution witnesses, the deceased and the accused had an altercation only couple of hours before and the deceased reportedly told his wife that he was threatened by the accused that he would kill him. His conduct of companying the accused alone, where accused was along with two other accomplices, simply does not match the normal human conduct. Significantly, PW-1, the brother-in-law of the deceased claimed to be present when the deceased was proceeding along with the accused and other persons with him and it was the accused who told the witness to return home. This again defies normal human conduct. If as suggested by the prosecution that the deceased had a fight with the accused after which he was given a death threat, it is difficult to appreciate why did the deceased accompany the accused to an isolated place late at night with two more people persuading his own relative to return home. Evidence of these two witnesses on the question of last seen together theory does not inspire confidence.

[18] The so called discovery of murder weapon is not proved. The punch witness in whose presence the weapon was recovered turned hostile. We may still accept the deposition of the Investigating Officer regarding the recovery of the instrument Dao, however, it is not proved that the same was discovered at the instance of the accused since no proper discovery statement has been recorded, nor the weapon was sent for forensic analysis to establish presence of human blood matching that of the deceased. Even if, on account of the weapon being recovered long after the incident and therefore, showed no presence of human blood, the same should have been left to be opined by the forensic experts. In any case, discovery of the weapon by itself would not be a factor which would establish the guilt of the accused. At best it is one of the factors, which the Court may weigh while assessing the other evidence whether prosecution may have brought on record. It is not the discovery of the object but the statement of the accused which lid to the discovery which is admissible in evidence under Section 27 of the Evidence Act.

[19] This leads us with the last factor of the conduct of the accused of absconding. Again this factor may have some bearing particularly, looking to the provision contained in Section-8 of the Evidence Act, the same on which own cannot result in the conviction of the accused. It is often stand stated that the act of a poor, ignorant and a scared accused of absconding from the scene of incident, by itself is not the proof of his guilt.

[20] Culmination of the above discussion is that the prosecution failed to bring on record important circumstances such as the last seen theory, threat given by the accused to the deceased and the discovery of the murder weapon at the instance of the accused. It is true that, witnesses have referred to an altercation between the accused and the deceased in the night of the incident near a tea stall. However, none of these witnesses have given any detail of such altercation. In absence of such details, it is not possible to judge the seriousness of such quarrel so as to use such a factor as a motive for commission of the offence. In the present case where the prosecution has relied solely on circumstantial evidence, the evidence on record is insufficient to record the conviction of the accused. The conviction and sentence of the accused are set aside. Appeal is allowed. Judgment of the trial court is reversed. Accused would be released forthwith if not required in any other criminal case.

Appeal disposed of accordingly.