Mohan Tripura vs State Of Tripura

S. Talapatra, J

[1] The appellant was charged under Section 302 of the IPC for committing murder of Shanta Rai alias Kanta Rai Tripura. As the appellant denied the charge, a regular Sessions Trial commenced in the court of the Additional Sessions Judge, South Tripura, Belonia and on termination by the judgment dated 25.07.2012 delivered in the sessions trial being S.T.12(ST/B) of 2012, the appellant has been convicted under Section 302 of the IPC and pursuant to the said judgment, he has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/-with default stipulation. By means of this appeal, the said judgment of conviction has been challenged.

[2] The prosecution against the appellant is rooted in the complaint (Exbt-5) filed by one Hemanta Tripura (PW-2) revealing that on 14.10.2010 which was a Thursday, the father of the complainant namely Shanta Rai alias Kanta Rai went to the forest for collecting firewood along with the appellant and two/three other persons, but his father did not return home even on fall of the evening. They inquired his whereabouts from the appellant. The appellant had informed them that their father "had gone to my sister's house". But when they took information from their sister's house at Abindrapara, Kowaifang, they got the information their father did not visit their sister's house. Being suspicious, they searched for him in the nearby jungle and in the nearby houses. On 25.10.2010, after 13 days, the decomposed body of his father was found in the abandoned strip of Galachipa streamlet in the deep jungle of Birendranagar, Manaighar. On getting the information, at that point of time, the appellant offered to settle the matter on accepting a sum of Rs.10,000/-. For that reason, the involvement of the appellant in the murder has strongly been suspected. On the basis of the complaint dated 27.10.2010, Baikhora PS case No. 76/2010 was registered under section 302/201 of the IPC and taken up for investigation. On completion the investigation, the final police report chargesheeting the appellant was filed under Section 302 and 201 of the IPC. The police papers were committed to the jurisdictional court (the court of the Sessions) and the charge was framed in the due course under Section 302 of the IPC as stated, the appellant pleaded innocence and claimed to face the trial.

[3] To substantiate the charge, as many as 8 witnesses including the post mortem doctor (PW-6) was examined in the trial and seven documentary evidence (Exbts-1 to 7) including the postp-mortem examination report (Exbt-4) and the statement of the appellant leading to discovery of weapon of offence (Exbt-7) were admitted. After recording the prosecution evidence, the appellant was examined under Section 313(1)(b)of the CrPC to provide him opportunity to have his say on the incriminating materials those surfaced in the trial. The appellant denied the evidence as concocted but in response to the question No.22 by which he was asked whether he had anything else to say about the case, the appellant stated as follows:

"I killed Kanta Rai Tripura because he did not teach me tantra mantra by which he used to cure people and earn money. I told him many times to teach me the mantra but he did not. So, I eliminated him."

[4] On appreciating the evidence, the trial judge by the impugned judgment dated 25.07.2012 convicted the appellant for committing the offence punishable under Section 302 of the IPC having observed inter alia as follows:

"Though recovery of the axe from the house of accused at his instance is proved, it is true the prosecution could not really connect it with the crime committed. This is not unnatural because if accused used the particular axe in the murder of Santarai Tripura, definitely he kept in the house after properly cleaning it. But it can be proved from another view point, PW-1 has deposed that he and PW-3 were carrying axe and so also Mohan Tripura. He has specifically deposed that Santarai Tripura was not carrying anything. This is not denied in the cross examination. Thus in turn means that when Santarai Tripura was moving with the accused, he was unarmed, but the accused was armed with an axe. The opinion of the medical officer conducting the autopsy examination is very clear who has stated that the cause of death was head injury caused by sharp and heavy object and was also homicidal in nature. There is no cross examination on the point let alone any effort to damage the opinion. Thus, though it could not be proved by the prosecution that the axe recovered was the one by which the Mohan Tripura struck Kantarai, it is proved from the circumstances that he so struck him by the one which he was carrying. It is true that there is a time gap of almost 13 days since Santarai Tripura went missing and recovery of his dad body. The Apex Court has time and again cautioned that the time gap between the victim and the accused last seen together and the recovery of the dead body should not be large. The obvious reason is that if the time gap is large, the possibility of death of the victim is being caused otherwise than be the act of the accused cannot be ruled out. But in the case in hand it is already proved that on the fateful day, it was the accused who called the victim from his house and suggested that they proceed to the jungle for cutting firewood. Taking a pause here, we can gather the intention of the accused in inviting the victim. It is further proved already that they were last seen together at Patichhara wherefrom the accused and Santarai Tripura proceeded towards Manaigarhchhara and Santarai was unarmed but accused was armed with spade." [Emphasis added]

[5] Mr. Bidyut Majumder, learned counsel appearing for the appellant has contended that the judgment of conviction, as challenged in this appeals, is based on surmise and not supported by any legal evidence.

[6] According to the counsel for the appellant, the identity of the decomposed dead body has not been established beyond reasonable doubt. PW-4 has identified the dead body by recognizing the "tabiz" (talisman) of his father-in-law, Shanta Rai alias Kanta Rai Tripura. But such tabiz is available in the market. Mr. Majumder, learned counsel has also pointed out that no DNA test was carried out to establish the identity of the corpse.

[7] Further, Mr. Majumder, has quite emphatically contended that the evidence of leading to discovery (under Section 27 of the Evidence Act) cannot be relied on, inasmuch as, PW-8, the investigating officer has categorically stated in the trial that "I went to the locality of the informant at Rejanta para & recorded statement of two witnesses. From there, I went to Nabaram Para & recorded statement of Baidya Tripura. Next I raided the house of FIR named accused Mohan Tripura & arrested him." But the said episode of arrest took place on 26.10.2010, the very day when the complaint was filed. According to Mr. Majumder, learned counsel the discovery took place before his arrest. At the juncture a reference may be made to the seizure list dated 28.10.2010 recording the seizure made on 1320 hours on that day. By the said seizure list one iron made axe was seized on the basis of the disclosure statement made by the appellant.

[8] Mr. Majumder, learned counsel has further submitted that for the huge gap between the day of missing and day of discovery of the dead body, the last seen theory cannot be applied in the case in hand. As regards the statement as reproduced before and made during the examination under Section 313(1)(b) of the CrPC, the counsel for the appellant has submitted that this cannot be treated as the confessional statement and such statement cannot carry any evidentiary value.

[9] To buttress the submission, Mr. Majumder, learned counsel has contended that to base a conviction on circumstantial evidence, the prosecution must establish all the episodes of the incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however, grave cannot substitute a proof. The courts should exercise utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. On the last seen theory, Mr. Majumder has placed his reliance on a decision of the apex court in Ramreddy Rajesh Khanna Reddy vs. State of A.P reported in (2006) 10 SCC 172 where it has been held inter alia as under:

The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration.

In State of U.P. v. Satish:(2005) 3 SCC 114, this Court observed:

"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [Emphasis added]

[10] On whether the statement of the accused made during the examination under Section 313(1)(b) of the CrPC can be used as evidence within the meaning of Section 3 of the Evidence Act, Mr. Majumder, learned counsel has relied on two decisions of the apex court viz, Manu Sao vs. State of Bihar reported in (2010) 12 SCC 310 and Dehal Singh vs. State of Himachal Pradesh reported in AIR 2010 SC 3594. In Manu Sao (supra) the apex court has enunciated the law as under:

"13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross- examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.

The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. [Emphasis added]

Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Code as it cannot be regarded as a substantive piece of evidence. In Vijendrajit Ayodhya Prasad Goel v State of Bombay, :AIR 1953 SC 247, the Court held as under:

"3. .......As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown."

[11] The apex court has restated the law as enunciated in Mano Sao (supra) in Dehal Singh (supra) in the following terms:

"21. We do not find any substance in this submission of Mr. Mishra. Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfullness or otherwise of the case of prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. Appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination. Therefore, in our opinion the plea of the appellant Dinesh Kumar that he had taken lift in the car is not fit to be accepted only on the basis of the statements of the appellants under Section 313 of the Code of Criminal Procedure." [Emphasis added]

[12] Mr. R. Datta, learned PP appearing for the state has in order to repel the submission of the counsel for the appellant stated that the every episode of circumstantial evidence has been proved. A distinct chain has been formed by destroying the hypothesis of innocence of the appellant and by unerringly showing of the guilt of the appellant. According to Mr. Datta, from the episode inducing the deceased to go with the appellant into the forest, the false statement of the appellant made to PW-2 that his father (the deceased) went to the house of his sister, killing of his father by the axe, the recovery of the said axe on disclosure made by the appellant and the medical evidence in respect of the nature of weapon used in the murder etc. have been well proved by the prosecution. Mr. Datta, leaned PP has quite emphatically stated that the submission as to leading to discovery is grossly unsustainable inasmuch as the appellant was arrested on 26.10.2010 and discovery of the weapon of offence was made on 28.10.2010 in presence of witnesses. Mr. Datta, learned counsel has submitted that identity of the corpse has been well established by identification of the wearing apparel of the deceased (Exbt-MO.1 series) and such identification has been made by PW-2 and PW-4. Thus, the said contention is without any substance. According to Mr. Datta, the reasons as provided by the trial judge, as reproduced above, cannot be faulted with and as such no interference in the judgment of conviction is called for.

[13] For purpose of further appreciation of the rival submission as projected by the counsel appearing for the appellant and the state, it would be appropriate for us to revisit the evidence as recorded in the trial in a meaningful manner.

[14] PW-1, Kangyu Mog has testified in the trial that one morning at about 7 am two years before the day of deposing in the court, he and one Baidya Tripura were proceeding for cutting firewoods. They found Mohan Tripura (the appellant) and Shanta Rai alias Kanta Rai Tripura (the deceased) were moving towards the same direction. On reaching Paticharra, he and Baidya Tripura moved in one direction of the jungle while Mohan Tripura and Shanta Rai moved towards other direction. Mohan Tripura was carrying an axe but Shanta Rai was not carrying anything. They were also carrying axe. In the evening, son of Shanta Rai asked us about the whereabouts of his father. He advised him to ask Mohan Tripura in this regard as Kanta Rai went with Mohan Tripura. After 12-13 days from that day, the dead body of Shanta Tripura was recovered from the jungle of Paticharra. He identified the appellant in the trial. There was no cross examination on the statement regarding taking of the different direction by the appellant and the deceased.

[15] PW-2, Hemnata Tripura (the informant) is the son of the deceased. He has stated that about one and half years ago one morning between 6 and 7 am, the appellant came to their house and asked his father Shanta Rai Tripura to accompany him as he was going to the jungle for cutting firewoods. In the afternoon, around 4 pm, Mohan Tripura returned alone and informed him that his father (the deceased) had gone to the house of his sister namely Himela Tripura at Kalshi. He had believed him but his father did not return after two days. Then, he asked him again about his father. At that time, then he had stated that he did not know anything more. He had approached several persons to find out whereabouts of his father but nobody could say anything. On the 13th day, the dead body of his father was recovered from Manaicharra in the jungle. On that day, he did lodge the complaint about the death of his father as written by on Subrata Sarkar (PW-7). He had put his thumb impression on the said writing. At that time, he could not sign but, later on, he learnt to write his name. He stood witness to the seizure of a gamcha, a lungi and a copper tabiz (Exbt MO.1). He identified the materials as seized and his thumb impression on the seizure list. In the cross examination, he did not mention that the appellant called his father from his house. There had been no other cross-examination. But, in the cross examination PW-1 has stated that Mohan was caught by Police before the dead body was recovered.

[16] PW-3, Baidya Tripura has corroborated PW-1 on all material particulars. He has also stated that Hemanta Tripura (PW-2) asked him about his father Kanta Rai. He had stated that he saw Kanta Rai last time with Mohan Tripura. But in the cross examination he has stated that he was not asked anything by the police. In the cross examination, nothing more could be extracted which can dent his statement made in the examination-in-chief.

[17] PW-4, Ranjit Tripura has stated that about one and half years ago, before around 12 noon, the police recovered the dead body of his father-in-law from the jungle of Manaigarh. He stood witness to the inquest procedure and signed on the report (Exbt-1) prepared by the police officer after inquest . He has further stated that the police had seized one gamcha, one check lungi and one tabiz from the dead body and seized those materials by preparing a seizure list (Exbt-2). Two days prior to such recovery, PW-2 called him over his mobile phone to ask whether his father Kanta Rai came to their house. In the cross examination, he has stated that the body, as recorded, was decomposed to such extent, it was difficult to identify the person whose dead body was it. Then, to the court, he had stated that he could identify his father-in-law by seeing the tabiz on his right arm. He has further stated similar tabiz is available on the market.

[18] PW-5, Thagmohan Tripura has stated that one and half years before deposing[deposing in the court], he was taken by the police around 1.30 pm to the jungle of Manaigarh. On reaching there, the dead body of Shanta Rai Tripura was recovered in his presence. The police seized his wearing apparel namely a check gamcha, a check lungi and a copper tabiz. He had signed the seizure list (Exbt-2) and at his instance the seized articles were marked as Exbt MO.1. From there, the police went to Baikhora Police Station and taking Mohan Tripura went to his house. Mohan Tripura handed over an axe to the police. The said axe was seized by means of seizure list (Exbt-3). In the cross-examination, he has stated that he did not see the wearing apparel of the deceased on the day he went missing.

[19] PW-6, Dr. J.S. Reang a Medical Officer of Jolaibari PHC conducted the post mortem examination on the dead body of Shanta Rai Tripura alias Kanta Rai Tripura, in connection with Baikhora PS Case No.76/2010. The dead body was identified by Hemanta Tripura, Thagmohan Tripura, Ranjit Tripura and Swapan Chakraborty. The body was decomposed and there was an external injury on the skull closed to the left parital region anteriorly of size: 2 ½" X 1". The skin on the neck area or the upper chest was black. According to him the head injury was caused by sharp and heavy object and the assault was homicidal in nature. He had identified his report (Exbt-4). Nothing could be extracted in the cross examination.

[20] PW-7 Subrata Sarkar has stated in the trial that he scribed the complaint (Exbt-5) as per the direction of the complainant (PW-2). In the cross examination nothing could be extracted to dent his statement made, in the examination in chief.

[21] PW-8, Sahadev Das is the investigating officer and he has stated briefly in the trial how he had conducted the investigation. He visited the jungle of Manaigarh. PW-2 led them to the particular spot from where the decomposed dead body was lying. On seeing the condition of the dead body, he had sent requisition for the Executive Magistrate and the doctor over telephone through him. Accordingly they arrived at the place of recovery. On retrieving the dead body, the photographs were taken. The dead body was examined and the inquest report (Exbt-1) was prepared in presence of the witnesses. He had identified his signature on the inquest report. The post mortem examination was conducted on the spot having regard to the extent of decomposition. Thereafter, he seized the wearing apparel of the deceased by preparing the seizure list (Exbt-2). He had recorded the statement of Hemanta Tripura, Ranjit Tripura and Thagmohan Tripura on the spot. He had continued to record the statement of the other witnesses. He had prepared the handsketch map (Exbt-6) with index. During the police remand, the appellant had stated that he had kept the axe used in the incident in his house. Accordingly, his statement (Exbt-7) was recorded by PW-8. In presence of Thagmohan Tripura and Hemanta Tripura, the appellant pulled out the axe from near the door of his dwelling hut and the same was handed over to the police officer. The said axe was seized by means of the seizure list (Exbt-3). After seizure, he saw no blood stain. He had identified the said axe marked as Exbt-MO.1. Having collected the sufficient evidentiary materials, he had filed the charge sheet. During the cross examination, nothing material could be brought out from PW-8.

[22] PW-1 saw the deceased last in the company of the appellant. PW-3 has corroborated testimonies of PWs-1 and 2 in respect of seeing the deceased in the company of the appellant. The statement of the appellant as made to PW-2 in respect of going to his daughter's house has been well established to be false inasmuch as PW-4, the husband of his sister, has categorically stated that the deceased did not come to his house during that period of his missing. PW-5 is the witness of recovering the dead body of Shanta Rai. He is also witness to the seizure of wearing apparel of the deceased (Exbt-MO.1 series). PW-5 is the witness of seizure of the axe by the seizure list (Exbt-3) as brought out and handed over by Mohan Tripura (the appellant). The said axe has been marked in the trail as Exbt-M.O.ii. In the cross examination, nothing could be extracted out. PW-6 has categorically stated that the fatal injury on the skull of the deceased was caused by sharp and heavy object. The description of the weapon of offence is akin to an axe.

[23] The chain of episodes, from taking the deceased into the forest by the appellant to the recovery of decomposed dead body from the forest . Recovery of the axe at the instance of the appellant from his house has completed the chain of the circumstantial evidence. True it is that the said axe was not sent for forensic examination. From the evidence of PWs2 and 4, the identity of the decomposed dead body has been clearly established. After the appellant and the deceased entered into the jungle they were last seen by PWs-1 and 3. The said witnesses are the witness of last seen together and thereafter after 13 days the dead body of the deceased was recovered. But when the appellant had returned home alone he was time and again asked about the whereabouts of the deceased, but he gave false information that the deceased went to his daughter's house. But the deceased did never visit his daughter's house. The said fact has been established by the uncontested testimony of PW-4. The said false statement is one element in the circumstances. If the appellant could not give his explanation, the irresistible inference that shall be drawn is that he and none else has committed that murder. During his examination under Section 313(1)(b) of the CrPC, what the appellant has stated is nothing but accepting the circumstantial evidence as surfaced in the evidence. He could not place in the evidence his explanation to discharge his obligation as saddled by Section 106 of the Evidence Act.

[24] True it is that the axe as recovered at the instance of the appellant could not be proved directly as used in commission of the said murder. But, the opinion of the doctor in respect of weapon of assault and the nature of weapon as recovered on the basis of the discovery statement do match and create a strong incriminating circumstance against the appellant. Even if, the discovery is not accepted in the evidence, the said circumstance does not lose its probative value.

[25] The inculpatory statement as made during the examination under Section 313(1)(b) of the CrPC cannot be used as the evidence but such statement carries its own consequence vis-a-vis the circumstantial evidence in proving the chain by irresistibly indicating to the guilt of the appellant. In Sahadeban vs. State represented by the Inspector of Police Chennai reported in 2003 (Crimes) 80 (SC), the apex court had occasion to observe as follows:

"The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever."

[26] No explanation has been offered as regards where the appellant parted the company of the deceased. On the contrary, he has stated that he hacked the deceased for the motive explained therein. Even if this part is not treated as the evidence, but absence of the explanation in view of Sahadeban (supra) would further strengthen the circumstantial chain against the appellant.

Having observed thus, this court is of the view that the finding of conviction returned by the trial judge, warrants no interference from this court. Hence, the appeal stands dismissed. The appellant shall serve out the remaining term of the sentence.

Send down the LCRs forthwith.