Santosh Debbarma vs State Of Tripura

Heard Mr. R. Dutta, learned counsel appearing for the appellant namely Santosh Debbarma as well as Mr. R. C. Debnath, learned Addl. P.P. appearing for the state.

This appeal arises from the judgment of conviction and order of sentence dated 26.01.2013 delivered in S.T. 53 of 2004 by the Addl. Sessions Judge, Khowai, West Tripura. By the said judgment dated 26.02.2013, the appellant has been convicted for commission of offence punishable under Section 148 & 364(A) read with Section 109 of the IPC and under Section 302 read with 149 of the IPC. As consequence of the conviction the appellant has been sentenced as under:

(a) rigorous imprisonment for 3(three) years and fine of Rs.1,000/- for committing the offence punishable under Section 148 of the IPC

(b) rigorous imprisonment for life and fine of Rs.10,000/- for committing the offence punishable under Section 364(A) read with Section 149 of the IPC and in default of payment of fine to suffer simple imprisonment for 10(ten) months and

(c) rigorous imprisonment for life and fine of Rs.10,000/- for committing offence punishable under Section 302 read with Section 149 of the IPC and in default of payment of fine the appellant has been directed to suffer further simple imprisonment for further 10(ten) months.

One written complaint was filed by one Dhananjay Debbarma revealing that on 14.01.2003 at about 5.30 a.m. a group of extremists (10/12 persons) came to their village called Champlai with lethal weapons in their hands. They abducted his younger brother namely Bijoy Debbarma along with Shushil Debbarma, Ramesh Debbarma and Chandramani Debbarma from their village and took them away from there. At the time of leaving the place of occurrence the said group of extremists left behind a letter for ransom for a sum of Rs.1,00,000/- per person. It was warned that in the event of failure of payment of ransom, the abducted persons will be killed. In the ejahar, Dhanjay Debbarma revealed the names of the persons who formed the group of terrorists. They were-(i) Sanjit Debbarma (ii) Santosh Debbarma(iii) Manaj Kumar Debbarma (iv) Manoj Kumar Debbarma(2) (v) Shyama Charan Debbarma (vi) Dhan Kumar Debbarma (vii) Renu Debbarma (viii)Ratan Debbarma (ix) Kaloi Debbarma (x) Uttam Debbarma and (xi) Paina Debbarma

On the basis of the said written ejahar dated 14.01.2003, Teliamura P.S. case No.11/03 was registered under Section 148/149/364 (A) of the IPC. On completion of investigation, the police filed the chargesheet. As the offence punishable under Section 364(A) and Section 302 of the IPC are exclusively triable by the court of the Sessions Judge, the case was committed to the court of the Addl. Sessions Judge [the jurisdictional Judge] for trial in accordance with law. The Addl. Sessions Judge, hereinafter referred to as the trial judge, had framed the charge under Section 364(A) read with Section 149 of the IPC and under Section 302 read with 149 of the IPC, to which the present appellant whose trial had taken place after trial of the first batch of accused persons, as during the investigation and the said trial he did not surrender, asserted his innocence and claimed to face the trial. As a result, another phase of the proceeding had taken place. One of the unique features in this case is that the testimonies as recorded during the trial of the other batch of the accused person are adopted. Further, the other witnesses who were not examined or cross- examined in the trial of that batch of accused person have been introduced in the trial of the appellant.

Mr. Dutta, learned counsel appearing for the appellant at the outset has drawn attention of this court to the observation of the trial Judge which runs as under:

"To prove the charge the prosecution as well as defence adopted the evidence of P.W 1, Sri Usha Ranjan Debbarma, P.W 2, Sri Uttam Debbarma, P.W 3, Sri Bijay Debbarma, P.W 4 Sri Kishore Debbarma and P.W 5, Sri Sushil Debbarma which evidences were recorded in during trial of other accused persons previously and in this trial in addition prosecution further examined four more witnesses and re-examined P.W 3. Sri Bijay Debbarma. Inadvertently second time his evidence was recorded as P.W 6. The newly examined three witnesses are 1) Sri Samiran Chakraborty as PW.7 and he was the second IO of the case, 2) Sri Dibyendu Bikash Sen as PW.8, and the first I.O Sri Narayan Chakraborty, as PW.9."

According to Mr. Dutta, learned counsel, the appellant was denied the right to cross-examine the witnesses who were earlier examined by the prosecution in support of their case and denying the said right to the appellant, the trial Judge proceeded to deliver the judgment to the serious detriment of the appellant.

Section 299 of the Cr.P.C. provides that:

"Record of evidence in absence of accused.-

If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."

It has further provided that:

"If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India."

Mr. Dutta, learned counsel has referred to Section 33 of Evidence Act which clearly provides that:

"Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding."

An explanation has been appended to Section 33 of the Indian Evidence Act which reads as under:

"A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

Mr. Dutta, learned counsel has submitted that it would be apparent from the records that trial court has relied the testimonies of Sri Usha Ranjan Debbarma [PW-1], Sri Uttam Debbarma [PW-2], Sri Bijay Debbarma [PW-3], Sri Kishore Debbarma [PW-4] and Sri Sushil Debbarma [PW-5]. PW-6 [Bijay Debbarma he was examined a fresh in the trial of the appellant] has stated that 10/12 extremists armed with weapons entered in the courtyard and three of them entered in his hut and asked him to go with them. On the gun point, he was taken to the jungle. It has surfaced that he was in the custody of those abductors for about four days and during that time he was regularly shifted from one place to another place but he could not identify the places by name. PW-6 has further stated that Ramesh Debbarma and Chandra Mohan Debbarma were killed by the extremist while they were being taken to an unknown destination. On the fourth days at the dead of night some wild elephants arrived in the place where the abducted were detained. Those elephants sounded severely and seeing the elephants, the extremist got terrified and they started run helter skelter. Taking that advantage, PW-6 made a slip from the custody of the terrorists. He has categorically stated that he could identify Sanjit Debbarma, the co-accused. PW-6 identified the appellant Santosh Debbarma in the dock and stated that he was his student. PW-6 has also asserted that his recorded date of birth is 01.04.1984 and as such it can be said that the appellant Santosh Debbarma was more than 18 years of age at the time of commission of offence. The claim of juvenility was rejected by the trial court.

PWs 7, 8 and 9 were examined for the first time in the trial of the appellant. As such in respect of those witnesses the plea of denial of the right to cross-examine cannot be raised inasmuch as it appears that the cross-examinations were duly carried out or declined by the defence.

Mr. Dutta, learned counsel has further submitted that for denial of cross-examination of Shri Usha Ranjan Debbarma [PW-1], Shri Bijoy Debbarma [PW-3 & 6], Shri Sushil Debbarma [PW-5] the appellant has suffered serious prejudice. Such denial has caused miscarriage of justice.

Before we appreciate the plea of denial to cross- examine it would be apposite to appreciate the evidence. It appears from the order dated 24.05.2012 delivered in ST- 53(WT/K)-2004 [from the Case No.G.R.22/03] that the present appellant filed a petition for issuance of summons upon Shri Bijoy Debbarma [PW-3 & 6] herein and Shri Sushil Debbarma. The trial court being satisfied issued summons on the listed witnesses along with some other witnesses who were catalogued in the chargesheet. Prior to that, by the order dated 12.12.2011 the trial court had observed as under :

"Accordingly, I heard both sides and perused the record. L.C. Record shows that prosecution case supports prima facie materials for framing of charge u/s 148/364(A)/302/149 IPC and 27(3) of Arms Act read with Section 149 IPC. Accordingly this court framed charge under the above Sections against accused Kalai Debbarma @ Kabi. The said charges are read over and explained to the accused in Bengali to which he pleaded not guilty and claimed to be tried."

Thus, in the subsequent trial the accused namely Santosh Debbarma, the appellant and Kalai Debbarma were tried. Against the appellant the charge under the same sections were framed on 07.07.2004. On that day, the following order was passed by the trial court :

"Charge has been framed and the contents of charge is read over and explained to the accused in Bengali to which he pleaded not guilty and claimed to be tried.

At this stage Ld. Addl. P.P. submits to issued summon upon the P.W.3 Bijoy Debbarma who is already examined earlier, and after examination of said P.W.3 summon may be issued to other witnesses."

The next date i.e. 04.08.2011 was fixed for examination of that witness. But on that day for absence of the accused, the examination of PW-3 was not carried out and on 06.09.2011 fresh summons was issued seeking attendance of PW-3 for examination. It is reflected in the order dated 31.10.2011 that the said summons could not be served. Again on 12.12.2011 fresh summons was issued to the witness PW-3. On 12.12.2011, the trial court had observed as under :

"Though accused Kalai Debbarma do not want to cross examine any witness but this court can not conclude the trial in respect of accused Kalai Debbarma as another accused Santosh Debbarma desires to cross examine the witness Bijoy Debbarma.

So, it is ordered that P.W. is closed in respect of accused Kalai Debbarma in respect of accused Kalai Debbarma but it is pending in respect of accused Santosh Debbarma."

Fresh date was again fixed on 13.01.2012, but the service was not complete by that date. As a result, a fresh summons was issued fixing the next date on 13.12.2012. For absence of the appellant, the trial could not proceed till 24.05.2012. On that day the appellant surrendered before that court and in his presence, the order observing inter aila as was passed:

"In view of evidence of prosecution Ld. Addl. P.P. prays for issuance summon upon the P.W.5 namely Dr. Debendra Bikash Das (M/O) & P.W.17 & 18 Samir Chakraborty & S.I. Narayan Chakraborty."

As stated earlier, that those witnesses were never examined in the previous trial. On 12.09.2012, the trial court has recorded inter alia as under:

"Addl. P.P. is present with one PW, medical officer the witness is duly examined cross examined and discharged. The cited P.W. Sushil Debbarma, cited PW6 and I/O Narayan Chakraborty, cited PW 18 are absent. Received SR from SP(RSV) Southern Div. Showing that I/O was asked to appear before this court. But I/O remained absent.

This is an old pending case. As per direction of the Hon'ble High Court this case should be disposed of giving priority."

Fresh summons was issued fixing the next date on 22.09.2012. On 22.09.2012, for absence of the counsel of the appellant, the examination could not take place. Abruptly on 10.12.2012, the appellant and the other accused persons namely Kalai Debbarma were examined under Section 313 when they denied the incriminating evidence appearing in the evidence. Thereafter the case was argued, heard and decided by the impugned judgment. It is apparent that the other accused person namely Kalai Debbarma was acquitted for want of evidence against him. But the appellant herein has been convicted and sentenced under Section 302 read with Section 149 of the IPC, under Section 148 of the IPC and under Section 364(A) read with Section 149 of the IPC.

Mr. R.C. Debnath, learned Addl. P.P. appearing for the state while resisting the submission made by the learned counsel appearing for the appellant has submitted that PW-1 Usha Ranjan Debbarma is a hearsay evidence and he did not make any incriminating statement against the appellant.

PW-2, Uttam Debbarma has clearly stated that who kidnapped Bijoy Debbarma, Chandramoni Debbarma and Sushil Debbarma, he has no personal knowledge.The only material witness is PW-3, Shri Bijoy Debbarma. From the records, it appears that he was examined afresh as PW-6 during the trial of the appellant. However, PW-5 was not summoned and his cross- examination was not allowed to be carried out during the trial. This is no doubt a mere procedural irregularity which can be cured in terms of the provisions of Section 33 of the Evidence Act by providing an opportunity to the accused (the adverse party) to cross-examine as he had the right to such opportunity in the earlier stage of the same judicial proceeding.

We have scrutinised the records of the trial and appreciated the submission advanced by the learned counsel for the parties. To our dismay, we discover that Sri Sushil Debbarma [PW-5] who had categorically stated in the examination-in-chief that he could identify Santosh Debbarma and Sanjit Debbarma as the members of the extremist gang which kidnapped them. But no cross-examination was allowed. But the said testimony was utilised along with the testimony of PW-3 or PW-6, the same person, to convict the appellant. This lapse has caused serious prejudice to a very important right of the accused i.e. to cross- examine. Such right has been crystallised under Section 33 of the Evidence Act. In Sashi Jena and Others vs. Khadal Swain and Another reported in (2004) 4 SCC 236, the apex court has enunciated the law and laid down the principle how to operate the provision of Section 33 of the Evidence Act:

"8. From a bare perusal of the aforesaid provision, it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three pre-requisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (iii) that the questions in issue in both the proceedings were substantially the same, and in the absence of any of the three pre-requisites afore-stated. Section 33 of the Act would not be attracted. This Court had occasion to consider this question in the case of V.M. Mathew v. V.S. Sharma: (1995) 6 SCC 122 in which it was laid down that in view of the second proviso, evidence of a witness in a previous proceeding would be admissible under Section 33 of the Act only if the adverse party in the first proceeding had the right and opportunity to cross examine the witness. The Court observed thus at pages 110 and 111:-

"The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross- examine the witness in the previous proceeding. the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross- examination in order to make it admissible in the later proceeding."

In view of what has been observed above we set aside and quashed the impugned judgment of conviction and order of sentence dated 26.02.2013 as challenged in this appeal. However that will not entitle the appellant to get acquittal as the said interference is entirely based on procedural impropriety and that irregularity can be cured without any prejudice to the appellant. Thus, the case is remanded for retrial but the retrial shall be confined to the cross-examination of PW-5, Sri Sushil Debbarma. However, if the accused seeks to cross-examine PW- 1, Shri Usha Ranjan Debbarma, PW-2 Shri Uttam Debbarma and PW-4, Kishore Debbarma he shall file a petition clearly indicating that he is inclined to cross-examine those witnesses inasmuch as on the surface of their testimony it has appeared that none of those witnesses has said anything incriminating the appellant. However, the right to cross-examination can be restricted on such premises. On the very first day, the accused person shall make his intention clear to the trial court.

On recording the evidence within the limited extent as indicated above the trial court shall decide the case after examination of the accused under Section 313 of the Cr.P.C., if it is required and giving opportunity of hearing, by a reasoned judgment. It is expected that the entire exercise shall be completed as expeditiously as possible, inasmuch as the appellant is languishing in the jail. We are not passing any order allowing the appellant to remain on bail on considering his conduct during the trial. For any special circumstances as may be made out by the appellant, the trial court should be at liberty to extend the benefit of the bail to the appellant.

Having observed thus, this appeal is partly allowed. Send down the LCRs forthwith.