Niranjan Biswas vs State Of Tripura

Arindam Lodh, J

[1] Heard Mr. A. Acharjee, learned counsel appearing for the appellant. Also heard Mr. Sumit Debnath, learned Addl. P.P. appearing for the State-respondent.

[2] The instant appeal is directed against the judgment and order of conviction and sentence dated 13.04.2017 passed by the learned Additional Sessions Judge, Khowai, West Tripura, in connection with case No. S.T. (T-1) 12 of 2015, whereby and whereunder, the appellant has been convicted under Section-302 of IPC and thereby, sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 2000/- (two thousand) with default stipulation for commission of offence punishable under Section 302 of IPC.

[2] The brief facts of the case are as under:

[2.1] One Sri Narayan Sarkar lodged a written complaint scribed by one Plaban Goswami to the Officer In-charge Teliamura P.S. on 16.07.2014 stating inter-alia that on that date at about 2.00 pm Tulshi Biswas, the adjacent house owner informed him over phone that on the same date at about 1-30 pm his brother-in-law, namely, Niranjan Biswas injured his elder sister Archana Biswas by striking a blow on her head with a spade kept in the courtyard and the local people had shifted his sister at Teliamura Hospital and on getting information he also rushed to Teliamura Hospital and thereon seeing the condition of his sister critical, doctor of Teliamura Hospital referred her to G. B. Hospital, Agartala.

[2.2] The complainant along with other local people took the injured victim to G. B. Hospital and at about 4.00 pm his sister succumbed to her injury at G. B. Hospital, Agartala. The complainant has further stated that his sister died due to assault on her head by Niranjan Biswas with a spade.

[2.3] After receipt of the said complaint, the O.C. Teliamura P.S. registered Teliamura P.S. Case No. 59 of 2014 under Section-302 of IPC and for the purpose of investigation the case was endorsed to S.I. Rabindra Das of the same police station. After taking the charge of investigation, the Investigating Officer had visited the place of occurrence, prepared hand-sketch-map with separate index, examined the available witnesses and recorded their statements under Section 161 of Cr. P.C., arrested the accused, seized the weapon of offence and prepared the proper seizure list in presence of the witnesses. During investigation, I.O. also collected postmortem examination report and on completion of investigation, he submitted the report against the accused person under Section-302 of IPC.

[3] Upon receipt of the record, the trial Court had framed charge against the appellant under Section-302 of IPC. As many as 11(eleven) witnesses were examined in course of trial and on interaction of some documents, those were taken into evidence and accordingly exhibited on proper proof. After closure of the prosecution evidence, the appellant was examined under Section-313 of Cr. P.C. to which he denied all the allegations brought against him and claimed to be innocent. However, the appellant denied to adduce any evidence in his defence.

[4] The learned Trial Court while deciding the charge levelled against the accused person, in course of trial, had formulated a point, "as to whether the accused person on 16.07.2014 had intentionally caused the death of his wife Archana Biswas"?

[5] After hearing the arguments of both sides, the learned trial court found that the appellant was guilty of committing offence punishable under Section-302 of IPC and thereby sentenced him to suffer RI for life as aforementioned. Being aggrieved by and dissatisfied with the said judgment of conviction and sentence dated 13.04.2017, the appellant has preferred the present appeal.

[6] Mr. Acharjee, learned counsel appearing for the appellant submitted that the findings arrived at by the learned trial judge were wholly perverse. Learned counsel contended that the Trial Judge had failed to appreciate the evidence in its true perspective. He further contended that, virtually, there was no eyewitness at all to substantiate that the accused appellant had committed the crime.

[7] Per-contra, Mr. Debnath, learned Addl. P.P. contended that the learned trial Judge did not commit any wrong and the case was well proved. Mr. Dennath, learned Addl. P.P. had tried to persuade this Court that PW-1 stated in her evidence that there was bamboo fencing between her house and the house of the appellant and for that reason, it was not possible to witness the incident that the appellant by taking a spade made a stroke on the head of Archana. The learned counsel further contended that PW-2 should not be considered as eye-witness as because she was playing in another house.

[8] In view of the submissions canvassed by the learned counsel appearing for the parties as reflected above, let us make a short survey of the evidence and material placed on records to justify the conviction and sentence declared against the accused-appellant under Section -302 of IPC.

[9] PW-1, Smt. Nirmala Sarkar, in course of her examination stated that her house was adjacent to the house of the appellant. On the day of incident she was doing her own work in the courtyard of her house when she saw that Archana, the deceased wife of the appellant was also doing work in the courtyard of her house. PW-1 clarified that both of their houses are separated by way of bamboo fencing. She further stated that she saw Niranjan i.e. appellant, all on a sudden, took a spade and made a stroke on the head by the blunt side of the said spade. Archana suddenly fell down on the earth and became senseless. The said witness stated that she raised alarm and asked the daughter of Archana, namely, Parbati to save her mother, but, by that time Niranjan fled away keeping that spade i.e. the weapon of offence at the place of occurrence.

[10] In her statement it came to light that nearby people also gathered at the place of occurrence and shifted Archana to Teliamura Hospital wherefrom she was shifted to G. B. Hospital, Agartala, and succumbed to her injuries.

[11] In her cross-examination, PW-1 stated that prior to the incident, hearing some sound she looked into her house and noticed the incident. She further described the position of her house. The witness denied the suggestion that she did not see the incident.

[12] PW-2, Smt. Arati Biswas, in her statement stated that she was playing in the house of one Nirmala Sarkar when her father asked her to bring his chappal. As she turned to her house she heard an alarm from her mother from the courtyard of their house. At once she rushed to house and noticed her mother lying on the courtyard and her father being left away.

[13] Smt. Nirmala Sarkar(PW-1), told her that her father assaulted her mother by a spade. She also pours some water on the head of her mother and the villagers being gathered shifted her mother to the Teliamura Hospital and thereafter to G. B. Hospital, Agartala where her mother succumbed to her injuries.

[14] Smt. Parbati Biswas (PW-3), stated in her statement that she was in front of the house of her uncle (mother side), namely, Narayan Sarkar and at that time, a lady adjacent to their house informed her that her father after assaulting her mother by means of a spade left the house. She rushed to the house and found her mother lying on the earth in their courtyard in senseless condition. The village people also had rushed to the place of occurrence and made arrangement to shift her to the hospital.

[15] Shri Narayan Sarkar (PW-4) stated that he received one telephonic call from one Tulshi Biswas of their locality informing him that Niranjan Sarkar assaulted her deceased sister, namely, Archana and as a result sustained fracture injuries and she was taken to the Teliamura hospital where she was given stitches and as the condition of his sister was serious, she was shifted to the G. B. hospital, Agartala.

[16] PW-4 further stated that he lodged a written complaint to the O.C. Teliamura P.S. which was scribed by one Plaban Goswami as per dictation. The said complaint was marked as Exbt.1/1 and Darugababu obtained his signature in the surathal report which was marked as Exbt.2/1 on identification. Nothing material contradiction was found in his cross-examination.

[17] Sri Ajit Sarkar (PW-5), is the seizure list witness of the blood stained spade and one sky colour shirt which were seized in his presence from the house of the appellant. He identified his signature on the seizure list, the spade and blood stained clothe & the shirt, marked as Exbt.M.O.1 series.

[18] Sri Plaban Goswami (PW-6), was the seizure witness of the article, M.O.1 series.

[19] Smt. Tulshi Biswas (Das) (PW-7), in course of her statement stated that being a neighbour suddenly she heard "halla gulla" (hue and cry) from the house of Niranjan Biswas and immediately rushed to the house of the appellant and found the wife of the appellant lying on the courtyard of the house. The said witness had noticed the blood oozing out from her head. She further noticed that her daughter namely, Arati (PW-2) was crying seating nearby Archana, who was in senseless condition and unable to speak. At once she herself along with Niranjan Das had shifted Aarchana to Teliamura hospital and at that time, her father and brother Narayan Sarkar also arrived at that place. PW-7 further stated that as the condition of the wife of the appellant was serious, she was referred to G.B.P. hospital where she succumbed to her injuries. No material contradiction came out in her cross-examination.

[20] Dr. Sabyasachi Nath (PW-8) was working as Officer-cum-Assistant Chemical Examiner of Biology and Serology Division. TSFSL, Narsingarh. In course of his examination, he stated that after examination, he opined in his report that bloodstain of human origin were detected in exhibit marked as Exbts. A to F and J. After examination he opined in his report that (1) bloodstain of human origin were detected in exhibit, marked as A. C. D, E and F; (2) no bloodstain could be detected in the Exbt. B; (3) blood group of the Exbt. A could be determined as B group; (4) blood group of the exhibits marked as C, D, E and F and J could not be determined.

[21] Shri Sahadeb Das (PW-10) is the Investigating Officer who completed the investigation. He stated that he perused the case record meticulously and also found that the material witnesses of the case were examined by his previous I.O.

[22] PW-10 also found that his previous I.O. collected the finger print of the accused appellant Niranjan Biswas and sent the finger print of the appellant to the office of CID, Agartala. Thereafter, he collected SCD from GB TOP and also sent the viscera to the SFSL for scientific examination. He recorded the statement of Plaban Goswami, Dr. Juthika Debbarma and Ramprasad Mallik under Section-161 of Cr. P.C. and collected the report from SFSL and the P.M. report and further obtained final report from the medical officer. After being satisfied with the statements made by the witnesses and the material objects on record, PW-10 submitted the charge-sheet.

[23] Dr. Juthika Debbarma (PW-11), who conducted the postmortem examination over the dead body of Archana, deceased along with her colleague, Dr. Prandb Choudhury stated that during P.M examination she found stitched wound having size 5 cm x0.3 cm was present horizontally on the left parietal area of the scalp, size 6 cm from midline and 11 cm above the left eyebrow. Finally, doctor conducting the P.M. examination came to the conclusion that cause of death was head injury produced by hard and blunt force impact and the injuries were fresh. PW-11 identified the report (Exbt.8) as well as identified her signature as (Exbt.8/1).

[24] We have carefully scrutinized the evidence of the witnesses recorded in course of trial. We find no reason to disbelieve PWs 1 & 2. PW-1 being an adjacent neighbor had clearly noticed that the appellant inflicting blows on the head of the deceased by the blunt side of the spade and after hitting his wife, the appellant fled away keeping the spade at the place of occurrence.

[25] PW-2, who is the daughter of the appellant and the deceased wife, has stated that after hearing alarm from her mother she turned back and found her mother lying on the courtyard and her father was leaving the house. At that moment itself, PW-1 told her that her father assaulted her mother by a spade.

[26] The said statements of PWs. 1 and 2 remain uncontroverted. In our considered view, though PW-2 did not see the incident of assault, but, immediately after the incident she was told by PW-1 that the appellant had caused the said blow upon her mother. The evidence of PW-2 cannot be said to be hearsay evidence, and further the said statement is admissible under Section-6 of the Evidence Act and the information given to PW-2 by PW-1, has formed a part of the same transaction and falls within the purview of doctrine of "Res gestae".

[27] PW-3, another daughter of the appellant also was informed all the incidents by a lady. He did not make any mention about the name of the lady in his examination-in-chief but during cross-examination, PW-3 has divulged the name of the lady as Smt. Shamu Sarkar. So, her statement also forms a part of the same transaction, and is admissible evidence under Section-6 of the Evidence Act.

[28] The nature of injuries which were evinced from the P.M. examination also has corroborated the injuries caused to the victim. The doctor has clearly stated that the injuries were caused on the head by a blunt and heavy weapon.

[29] After meticulous analysis of the aforesaid circumstances and considering the evidence of PWs. 1, 2 & 3, particularly PW-1, we found that it is not the case of the prosecution that there was any pre-mediation and the appellant in a pre-planned manner. Furthermore, prosecution has not been able to place a case that the appellant with the intention to kill his wife i.e. Archana, has brought the weapon of offence from the courtyard. From the statement of PW-1, it is clear that he has brought the weapon of offence from the courtyard itself, and in a sudden spurt of a moment the appellant has hit his wife.

[30] The prosecution has miserably failed to prove that the cause of death of the wife of the appellant was the outcome of any pre-mediation, which has led this Court to come to the conclusion that the way the murder is caused, does not come within the purview of the definition of Section-300 of IPC rather it comes within the ambit of the definition of Section-304 Part-II of IPC.

[31] Accordingly, we are inclined to reduce the conviction and sentence to suffer RI for life as returned by the Addl. Sessions Judge and consequently, we hold that substantial justice would be rendered if the appellant is sentenced to suffer RI for 5 years instead of RI for life. In the result, the instant appeal is partly allowed. The appellant shall suffer RI for 5(five) years which shall include the period he already has undergone.

[32] With the modification in the above term in regard to the sentence of the appellant, the instant appeal stands partly allowed and thus, disposed of.