Pradip Nath vs State Of Tripura

S. Talapatra, J

[1] Heard Ms. S Chakraborty learned counsel appearing for the appellant and Mr. S. Debnath, learned Additional Public Prosecutor for the state.

[2] The appellant was charged under sections 302/324/34 of the IPC for committing murder of Manti Nath @ Santi aged about 1½ years on 10.08.2000 at about 07.30 am at a place called Pekuchera under Panisagar Police Station and on regular trial, the appellant has been convicted by the judgment dated 26.11.2012 delivered in S.T. 90(NT/D) of 2002 on observing that the charge under sections 302/324/34 of the IPC has been proved beyond reasonable doubt against the appellant. Pursuant to that conviction, the appellant has been sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- (Rupees Five Thousand) with default stipulation for committing offence punishable under section 302 of the IPC. The appellant has further been sentenced to suffer rigorous imprisonment for 1(one) year for committing offence punishable under sections 324/34 of IPC.

[3] According to the trial judge, the common intention in committing the offence can be gathered from the evidence, as led by the prosecution. Even though from the evidence it does not transpire that the appellant has not given any blow on Smriti Nath[PW-6], he is liable to be convicted under section 324/34 of the IPC.

[4] Before we proceed to lay the relevant facts leading to conviction, it will be appropriate to note that the present appellant had been absconding to evade the trial and as a result of which, the other co-accused, Santa Nath @ Matilal was tried first, convicted and sentenced by the judgment and order dated 17.09.2003 which, in appeal, was upheld by this court by the judgment dated 08.12.2010 delivered in Crl. A. (J) 91 of 2006. The present appellant was apprehended on 08.07.2013 and only thereafter his trial commenced leading to the conviction and sentence as stated before.

[5] The genesis of the prosecution case can be rooted in the complaint filed by one Sadhana Nath, PW-1 which reveals that one Santa Nath, son of Lt. Jamini Nath on the day of filing the complaint i.e. 10.08.2000 had entered in their house premises at about 07.30 in the morning and chased her daughter namely Smriti Nath, PW-5 with dao in hand having an intention to kill her. His younger brother namely, Pradip Nath (the appellant) had also chased her daughter taking dao in his hand. Out of fear her daughter had started to flee taking her girl child, namely Manti aged about 1½ years in her lap towards the north-west of her house. Out of apprehension, the complainant informed this matter to the local people. While she was returning back through the field of arum, she saw the appellant and his brother Santa Nath trying to hold her daughter, Smriti Nath. Santa Nath (the convict) had hacked her with dao. Resultantly, she sustained bleeding injuries to the right side of her back. During that time the appellant had killed her granddaughter namely Manti by hacking in the same place. Thereafter, two brothers chased her in order to take her life.

[6] PW-3 Sadhana Nath [in the first trial PW-1] engaged herself desperately to dissuade them. At that moment one Dilip Nath rushed from his hut to the north-west side of the place of occurrence. The appellant and the convict then left the place of occurrence running towards the eastern side of the house premises. On her alarm, the nearby villagers rushed in but they could not apprehend the assailants. She has further revealed that at 6.00 O'clock in the morning Santa Nath (the convict) came to their house and had enquired whereabouts of PW-6, Smriti Nath from Sima Nath, PW-7. PW-6 had stated to them that she was sleeping at that time. Then, Santa Nath shouted at her and asked her to call PW-1. Santa Nath also shouted at PW-7 and then PW-3 responded by stating why he was calling her. In the meanwhile, her son Pranab Nath came from the paddy field. Santa Nath tried to assault Pranab Nath as well. Thereafter, her maternal-in-law, Jitendra Nath came in that place and stopped Santa Nath and Pranab Nath from scuffling. Thereafter, Santa Nath ran away from there towards his house telling that he would be coming back soon. When Santa Nath and the appellant came back with dao(s) in their hands, Pranab left that place and ran away towards the Police Station.

[7] In the complaint, PW-3, Sadhana Nath has stated inter alia as under:

"Be it mentioned here that Santa Nath @ Matilal is my nephew in relation. He had taken my daughter named Smriti to Badarpur located at Assam to engage her in the works of maid servant in the month of last Magha of previous month of Magha. Subsequently my daughter came back to home being pregnant of 5 (five) months. Later Manti (Santi) was born. Taking this issue there an internal dispute was ensued (sic). Today's attack and killing are the consequences of this matter. This murder was committed by Santi Nath @ Matilal and his younger (brother) named Pradip Nath of Pekucherra and committing act of murder they had fled away to the eastern side."

Based on the said ejahar dated 10.08.2000, Panisagar P.S. case number 50/2000 under section 326/302/34 of the IPC was registered and taken up for investigation. On completing the investigation, the final police report was filed, charge-sheeting both the brothers. After taking cognizance on commitment of the police-papers, the Additional Sessions Judge, North Tripura, Dharmanagar, hereinafter referred to as the trial judge, framed the charge as stated earlier. The appellant pleaded not guilty and claimed to be tried.

[8] In order to substantiate the charge as many as 13 (thirteen) witnesses have been adduced by the prosecution and in the earlier trial in respect of Santa Nath, the prosecution adduced 15 (fifteen) witnesses.

[9] That apart, the prosecution introduced a few documentary evidence including the post mortem examination report [Exhibit-P-7] and the inquest report [Exhibit-P-2]. After recording of the prosecution evidence, the appellant was examined under section 281 read with section 313 of the Cr.P.C in the subsequent trial for getting his responses towards the incriminating materials those surfaced in the evidence.

[10] The appellant reiterated during the said examination, his plea of innocence and stated that the incriminating evidence, against him has been fabricated in order to implicate him in this case. On appreciation of the evidence the trial court has returned the finding of conviction and sentenced the appellant in the manner as stated before.

[11] Ms. S Chakraborty, learned counsel appearing for the appellant has strenuously argued before us that a particular set of evidence which has emerged in the trial cannot be used against the present appellant, inasmuch as those were recorded in his absence and later on, on his arrest and production before the trial judge for facing the trial, the prosecution adduced all the witnesses except the medical officers viz, PWs 13, 14 and 15 as they are the formal witnesses and the defence did not call for production of those witnesses.

[12] Ms. Chakraborty, learned counsel has submitted that presence of PW-1, Sadhana Nath at the time of commission of offence is highly doubtful and that would be apparent from the testimonies of PW-4, Rekha Rani Nath and PW-8, Dilip Nath.

[13] PW-4, Rekha Rani Nath in the subsequent trial has stated inter-alia in the cross-examination:

"I saw Santa was chasing Smriti and Pradip was trying to stop him and I saw the incident from a distance of 300 cubits. I did not see the incident of chopping of the victims by the accused. I stated the same thing to the police."

[14] Similarly, PW-8, Dilip Nath in the subsequent trial has stated in his cross-examination as under:

"Hearing the hue and cry of Smriti I came out and found she was being chased by accused person namely Santa. There was a dao in his hand. Pradip was trying to stop Santa. There was no weapon in the hand of Pradip. I did not see the chopping by the accused persons as there was jungle and kachu (arum) field. After the arrival of the police, nobody was "the accused Pradip killed able to speak about the real sequence of the events".[Emphasis added]

[15] Ms. Chakraborty, learned counsel relying on those parts of the testimonies of PWs 4 and 8 has urged to note that those witnesses have introduced a parallel set of story in the prosecution's case, but they were not declared hostile by the prosecution. Hence, the defence can use their evidence.

[16] Ms. Chakraborty has further submitted that when there are two sets of equally strong evidence, the set of the evidence which supports the case of the defence has to be accepted by the court.

[17] To repel her submission, Mr. Debnath, learned Additional Public Prosecutor has submitted that PWs 4 and 8 are not reliable witnesses inasmuch as PW-4, Rekha Rani Nath in her examination-in-chief has categorically stated that on hearing hue and cry she rushed to place of occurrence and found that the accused Santa and Pranab had been scuffling. She restrained them from doing so and thereafter she returned home. After half an hour of the said incident she heard again hue and cry. On hearing the same she rushed out to reach the place of occurrence and found the body of the victim [Manti] lying on the ground. The victim Smriti, had also been lying in the paddy field with bleeding injury. According to her the victim Manti".

[18] Thereafter, she has asserted in the trial that the accused Matilal @ Santa Nath had dealt a dao blow on the victim Smriti. Manti died on the spot whereas Smriti had sustained injury on her back. These are two mutually destructive statements without any explanation. Thus, the credence of the witnesses got substantially dented. The court should therefore evaluate and infer in the basis of the remaining evidence.

[19] Similarly, PW-8, Dilip Nath also stated in the examination-in-chief that near about one and half hour later he came to the place of occurrence and found the body of the victim lying on the ground. He did not find any other persons there. On query PW-8 has stated that he came to know from the informant [PW-3 in this trial] that accused Pradip had killed the victim and Santa had caused injury to Smriti.

[20] Mr. Debnath, learned Additional Public Prosecutor has submitted that these witnesses were not telling the truth during the trial and as such no reliance can be placed on their testimonies.

[21] For appreciating the submissions made by the learned counsel for the parties we have scrutinized the evidence particularly relevant for determining this appeal.

[22] PW-1, Gopal Sinha [in the subsequent trial] has stated that he was the recording officer and he had sent the dead body to the hospital for post mortem examination. He had carried out the inquest report after examining the body at the place of occurrence.

[23] PW-1, Gopal Sinha has categorically stated that he got the information from one Pranab Nath, the son of the informant [PW-3] and on the basis of that information they rushed to the place of occurrence. A part of the investigation has been carried out by PW-1.

[24] PW-2, Padmasen Chakma was entrusted with the investigation and he completed his investigation and filed the charge sheet on 10.08.2000.

[25] The informant was examined as [PW-3 in the subsequent trial]. She has replicated her statements in the previous trial in respect of Santa Nath. She has categorically stated that after the scuffle in the early part of the morning, Santa left the place of occurrence and returned after few minutes with his younger brother namely Pradip Nath (the appellant) armed with dao. Seeing them, Smriti being afraid tried to flee away from the place of occurrence with her daughter Manti in her lap. The convict and the appellant chased her. Seeing that she cried out desperately. The convict gave her daughter a dao blow and she fell on the paddy field after running some distance. Manti also fell on the ground. The appellant at that time dealt her granddaughter Manti with a dao blow. On seeing that she raised hue and cry. The convict and the appellant tried to assault her but one Dilip Nath, PW-8 came to the place of occurrence and rebuked the accused persons. Subsequently, the police officer reached to the place of occurrence but her granddaughter Manti died on the spot succumbing to the injury that she had received from the appellant. Smriti was still lying on the ground with grievous injuries. She admitted the complaint (Exhibit-P-1) in the trial. She had also narrated the story how Smriti eloped with Santa Nath even though in the ejahar she had stated Smriti was taken as the maid servant by the convict. She has also narrated in the trial how Smriti came back being pregnant and gave birth to Manti.

[26] In the examination-in-chief, she has placed some materials in respect of the post-occurrence fac. She as testified that even after the occurrence, the convict used to visit her residence as she had accepted him as her son-in-law. In the cross-examination she stood by her version and denied any suggestion contrary to what she has stated in the examination-in-chief.

[27] Since, this court has already recorded the substantive part of the testimonies of PWs 4 and 8, those shall not be repeated.

[28] PW-5, Arun Ch. Nath [in the subsequent trial] is a witness from the neighbourhood who appeared in the place of occurrence on hearing hue and cry. He has stated that on query he came to know from the informant [PW-3] that "Pradip had killed Manti". He has identified the appellant in the dock.

[29] PW-6, Smriti Nath [in the subsequent trial] is the most important witness as she was in the midst of the occurrence. She has categorically stated that in the early part of the morning, Santa Nath altercated with her mother and brother and after that incident, he went out and after about half an hour Santa came back with his younger brother Pradip (the appellant) being armed with dao. On seeing them she tried to flee away from the place of occurrence taking Manti in her lap. But, the convict and the appellant chased her. The convict gave a dao blow on her back for which she fell in the paddy field. For such a fall on the paddy field Manti also fell on the ground. The younger brother of Santa namely, Pradip dealt a dao blow over her daughter, Manti for which she died on the spot. The police officer shifted both of them to the hospital. She has admitted that Santa married her at Badarpur by exchanging garlands and that was the bone of dispute between the two families.

[30] But in the cross-examination, she did not state anything which would rupture the text of examination-in-chief. In the cross-examination, she had however admitted that she became unconscious after seeing the assault on her daughter by Pradip (the appellant).

[31] PW-7, Shima Nath, another daughter of the informant, had stated about the early morning altercation and the return of two brothers having been armed with dao. She had out of fear, entered in the room and closed the room from inside. Subsequently, she came to know that the appellant had killed Manti.

[32] PW-9 has not stated anything of material importance. The said witness namely, Shefali Nath was not examined by the prosecution. The prosecution followed the same way in respect of PW-10, Mamata Nath.

[33] PW-11, Jitendra Nath, the maternal-in-law of the informant has stated in the trial that when he received the information of the assault, he rushed to the place of occurrence and he saw the dead body of Manti lying on the ground. He also heard that Smriti was injured. But, he did not proceed further to disclose the name the assailants.

[34] PW-12, Rita Rani Paul has vouched for the marriage between Smriti and the convict.

[35] PW-13, Dr. Sankar Das, a medical officer of Panisagar Health Centre had examined Smriti Nath in connection with Panisagar P.S. case No. 50 of 2000 and has given the description of the injuries of Smriti Nath in the trial. We are not inclined to reproduce that part of the testimony, inasmuch as this is not very material for the present appeal.

[36] PW-14, Dr. Dilip Ch. Halder [PW-15 in the previous trial] has given the description of the injuries received by Manti Nath, the granddaughter of the informant as follows:

Chop wound over the mouth cutting the both angles of the mouth upto the regass of the ear both side.

Stab wound 3 cm. x 2 cm. x 1 cm. on the middle of the chest over the sternum.

[37] PW-14 Dr. Dilip Ch. Halder has categorically stated that the cause of death of the victim was due to neurogisic shock and due to hemorrhage resulted from the wound. He has identified the post-mortem examination report [Exhibit-7] as a whole. He has given a clear opinion that injury was caused by sharp cutting weapon like dao, knife etc. In cross-examination, the defence even did not try to question the process of examination.

[38] Having appreciated the evidence, as placed

on the record, we are constrained to observe that the fundamental plea raised in this appeal on the basis of the testimonies of PW-4, Rekha Rani Nath and PW-8 Dilip Nath cannot be sustained. These witnesses are not only inconsistent but their presence in the place of occurrence at the relevant point of time to see how the transaction of crime was carried on or how Manti Nath was chopped by the appellant is not above suspicion.

[39] That apart, we find that the testimonies of PW-6, Smriti Nath and PW-7, Shima Nath are not dented or visited by any doubt. They are consistent to each other and reliable. Their testimonies stand to record the eye-witness's account. Further, PW-14, Dr. Dipak Ch. Halder [in the subsequent trial] has categorically stated that the wounds have been created by sharp cutting weapon 'like dao'. Having observed thus, we are unable to accept the objections as raised in this appeal by the appellant.

[40] In the result, this appeal stands dismissed.

Send down the LCRs forthwith.