Sebak Nath And Ors vs State Of Tripura

Arindam Lodh, J

In this appeal altogether 11 accused persons, namely, (1) Sri Sebak Nath, (2) Sri Digendra Debnath alias Dwijen, (3) Sri Swapan Debnath, (4) Sri Dipak Debnath, (5) Sri Dhirendra Debnath, (6) Sri Indrajit Debnath, (7) Sri Swadesh Debnath, (8) Sri Sajal Debnath, (9) Sri Suman Debnath, (10) Sri Sashi Debnath and (11) Sri Nripendra Debnath being convicted and sentenced to suffer rigorous imprisonment for life along with fine for committing offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, IPC) with default stipulation, have questioned the legality and validity of the judgment and order of conviction and sentence dated 30.10.2017, passed by the learned Sessions Judge, North Tripura, Dharmanagar in Case No. ST/T-1/20/2015.

The genesis of the prosecution case was rooted on the basis of a complaint registered vide Panisagar PS FIR No. 47/2014, dated 08.08.2014, under Sections 447/302/34 of IPC, wherein one Smt. Kalpana Nath, wife of the deceased Pradip Debnath stated inter alia that on 08.08.2014 at about 12:30 pm, the accused persons namely, (1) Sri Sebak Nath, (2) Sri Digendra Debnath alias Dwijen, (3) Sri Swapan Debnath, (4) Sri Dipak Debnath, (5) Sri Dhirendra Debnath, (6) Sri Indrajit Debnath, (7) Sri Swadesh Debnath, (8) Sri Sajal Debnath, (9) Sri Suman Debnath, (10) Sri Sashi Debnath and (11) Sri Nripendra Debnath armed with sticks, sharp edged hand-held dao (long knife), bricks, crow bars and axe in everyone's hand, unitedly had entered their house and called out her husband Pradip Debnath with the intention to kill him. Her husband fled away from their house to save his life and rushed to the house of Haribal Debnath alias Haridhan Nath (PW-1) of their village. The aforesaid accused persons also went after him to that place and due to that her husband again fled away and took shelter to the house of accused Sajal Debnath, where all the aforesaid accused persons unitedly and brutally had assaulted her husband Pradip Debnath with arms they carried with them and left his body in front of the house of accused Sajal Nath in bleeding and half-dead state. She along with her family members had let out screams to save her husband and sent her son Tapan Debnath to the house of Promode Nath, a Member of Chamtilla Gaon Panchayat. Thereafter, police from Panisagar Police Station came and went to the place of occurrence and saw her husband struggling for life. She and her relatives had taken Pradip Debnath to Panisagar Hospital at first and from there to Dharmanagar Hospital at the advice of the doctors and the doctor of Dharmanagar Hospital declared her husband as dead.

2.1 It is further stated in the complaint that there was a long-standing dispute with her husband and the aforesaid accused persons about land and trees and the incident was the result of that enmity. It is stated in the FIR that since she and the members of her family were busy with the treatment of her husband, the lodging of the FIR/complaint was delayed.

2.2 After registration of the case investigation had commenced, the I.O. visited the place of occurrence, prepared site map, collected the report and samples necessary from the various organs of the body of the deceased that were sent to the State Forensic Science Laboratory for examination. Seized one sharp edged axe stained with somewhat like clay and blood which measures about two cubits in length; one sharp edged iron crowbar stained with somewhat like clay and blood measuring two cubits in length and some soil stained with blood which was collected from the place of occurrence. These were seized by preparing seizure list (Exbt.MO-I & MO-II). He also collected blood samples of the deceased and also the wearing apparels by preparing seizure list.

After completion of investigation, the investigating officer had submitted charge-sheet against all the accused persons, the appellants herein to the Court of learned Judicial Magistrate 1st Class, Dharmanagar, North Tripura who subsequently committed the case to the Court of learned Sessions Judge for trial.

Learned Sessions Judge had framed charge against all the accused persons for committing offence punishable under Section 302 read with Section 34 of IPC which reads as under:-

"CHARGE

I Sri S.G. Chattopadhyay, Sessions Judge, North Tripura District, Dharmanagar do hereby charge all of you namely Swapan Debnath, Dhirendra Debnath, Sebak Nath, Dijendra Debnath, Dipak Debnath, Indrajit Debnath, Swadesh Debnath, Sajal Debnath, Suman Debnath, Sashi Mohan Debnath and Nripendra Debnath as follows:-

That all of you on 08-08-2014 at about 12.30 pm at Rowa, Chamtilla, PS-Panisagar, District-North Tripura in furtherance of your common intention committed murder of Pradip Debnath by intentionally causing his death and all of you thereby committed an offence punishable under Section 302 read with section 34 of the Indian Penal Code and within the cognizance of this Court.

And I hereby direct that all of you be tried by this court on the said charge.

Question:- Do you plead guilty?

Answer: We do not plead guilty."

The prosecution had examined 15 witnesses to substantiate the case. The prosecution also introduced twenty (20) documents (Exbt.1 to Exbt.20).

After recording prosecution evidence, all the accused persons were put to examination under Section 313, CrPC and they were noticed what incriminating evidence and materials on record were found against them, when they denied the allegation and pleaded their innocence. Initially, they denied to adduce any evidence in their defence. On subsequent prayer they were allowed to adduce their defence witness. Accordingly, they had also adduced evidence and altogether 6(six) witnesses were examined in their defence.

After conclusion of recording of evidence and having due regard to the submissions of the learned counsel for the parties, learned Sessions Judge held that the charge leveled against the accused persons was proved and accordingly, the accused persons were convicted and sentenced as aforestated.

The relevant portion of the sentence may be reproduced here-in-below for convenience.

"[3] In view of the discussion stated above, I hereby sentence convicts namely [1] Sri Swapan Debnath, [2] Sri Dhirendra Debnath, [3] Sri Sebak Nath, [4] Sri Dijendra Debnath, [5] Sri Dipak Debnath, [6] Sri Indrajit Debnath, [7] Sri Swadesh Debnath, [8] Sri Sajal Debnath, [9] Sri Suman Debnath, [10] Sri Sashi Mohan Debnath and [11] Sri Nripendra Debnath to suffer RI for life each and to pay a fine of Rs.10,000/- each for the offence under section 302 read with section 34 of the Indian Penal Code and in default of payment of fine each of them are further to suffer RI for another 1 year.

Fine money if realized shall be paid to the wife of the deceased of this case as compensation.

[4] Since the convicts namely [1] Sri Swapan Debnath, [2] Sri Dhirendra Debnath, [3] Sri Sebak Nath, [4] Sri Dijendra Debnath, [5] Sri Dipak Debnath, [6] Sri Indrajit Debnath, [7] Sri Swadesh Debnath, [8] Sri Sajal Debnath, [9] Sri Suman Debnath, [10] Sri Sashi Mohan Debnath and [11] Sri Nripendra Debnath are sentenced to RI for life each no order is passed regarding set off against their term of imprisonment imposed under this judgment and order of conviction and sentence as per provision of section 428 of the Code of Criminal Procedure."

Being aggrieved, the accused persons have preferred the instant appeal.

Mr. P.K.Biswas, learned Sr. counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellants submitted that the implications of the appellants in connection with the present case is unwarranted and not sustainable. The FIR lodged by Smt. Kalpana Nath (wife of the deceased) had badly suffered from lot of improvement and exaggerations. The police personnel had arrived at the spot on receipt of an information and even talked with Smt. Kalpana Nath, but she did not disclose the names of the assailants who assaulted her husband and without any disclosure she went to the hospital along with her husband. Police personnel also did not enquire from any of the witnesses to know the names of the assailants. In course of trial, the police officer could not explain the reasons for not recording the information of murder of Pradip Debnath as first information received at the police station as FIR though a clear case of commission of cognizable offence was disclosed. As such, the present FIR is hit by Section 162 of CrPC and the general diary entry should be treated as FIR where the names of the appellants were not found.

10.1 Next, Mr. Biswas, learned Sr. counsel submitted that PW-1 and PW-2 though appeared to be independent witnesses, but they should not be treated as eye witnesses to the incident. None of the prosecution witnesses stated that they had seen the accused persons to assault and murder the deceased Pradip Debnath.

While repelling the submissions of the learned Sr. counsel for the appellants, Mr. S. Debnath, learned Additional Public Prosecutor submitted that the prosecution had been able to prove the case beyond reasonable doubt. Deceased's wife, Kalpana Nath (PW-8), Sri Pabitra Debnath (PW-9), the full-blooded brother of the deceased and Tapan Debnath (PW-12), the son of the deceased along with PW-1 and PW-2 were the eye witnesses to the incident and there is no reason to disbelieve the statements of these prosecution witnesses. He further submitted that the deceased Pradip Debnath was first attacked in his own house in front of his wife, son and brother (PW-8, PW-9 and PW-12). Apprehending danger to his life, the deceased had fled away from his house and went to the house of PWs-1 and 2 and took shelter at their kitchen. But the accused persons immediately had rushed to their house when they were resisted by PWs 1 and 2, the deceased had again fled away and took shelter to the house of accused Sajal Debnath where he was brutally assaulted and killed by all the accused persons including Sajal Debnath. Learned Addl. P.P. had urged to uphold the conviction and sentence as returned by the learned Sessions Judge.

Keeping in view of the aforesaid submissions, we have perused the evidence and materials on record for reliability and genuinity of the prosecution case as well as defence case. We would like to make a quick survey of the evidence based on which the learned Sessions Judge had convicted and sentenced the appellants.

At the outset, we thought it fit to take note of the evidence of the wife, brother and son of the deceased.

13.1 P.W.8, Smt. Kalpana Nath is the wife of the deceased. She deposed that on the fateful day at about 12:30 hours at noon, she along with her husband were at the house. At that time, the accused persons namely Sebak Nath, Dijen Nath, Swapan Nath, Dipak Nath, Dhirendra Nath, Indrajit Nath, Swadesh Nath, Sajal Nath, Suman Nath, Nripendra Nath and Sashi Nath had entered in their house being armed with dao, lathi, etc. and attacked her husband. She further deposed that Sebak Nath caused hurt to her husband by stick when her husband also retaliated with a stick and due to that counter attack by her husband said Sebak Nath had sustained injuries. Then all the accused persons collectively started to attack her husband when her husband had escaped away and went to the house of Haribal Debnath alias Haridhan Nath for shelter. The accused persons then damaged her homestead and also followed her husband. While following the accused persons, she saw all of the accused persons in the house of Haribal Debnath. Her husband took shelter at the kitchen of Haribal Debnath and locked the door but the aforesaid accused persons had entered into the kitchen by breaking the door. Her husband again had fled away from the said place and went to the house of Sajal Nath.

13.2 Considering the seriousness of the matter she had sent her son Tapan Nath to Chamtilla to the house of Pramode Nath, a member of the Gaon Panchayat to make a phone to the police station. But in that meanwhile, the accused persons had murdered her husband in the house of Sajal Nath and thereafter the dead body was thrown on the road near the house of Sajal Nath. PW-8 had seen so many injuries on various parts of the body of her husband. But she found her husband was still alive at that time. Immediately with the help of police vehicle her husband was taken away to Panisagar Hospital wherefrom he was referred to Dharmanager Hospital but on the way he succumbed to his injuries. She further deposed that they had a land dispute with Dijen Nath as her husband had cut down some Agar trees over which Dijen was aggrieved. Further, she deposed that except Indrajit, all other accused persons were relatives. On the day of the incident at about 7:00 pm she lodged the FIR. She identified the ejahar (Exbt.9) which was typed by one police officer in his computer. She further deposed that police had prepared inquest over the dead body of her husband at Dharmanagar Hospital where she had put her signature (Exbt.10).

13.3 During her cross-examination, when her statement under Section 161 CrPC was drawn, then, it was found that she did not specifically mention the name of Dijen Nath in the 161, CrPC statement.

13.4 In her further cross-examination, PW-8 stated that within half an hour, the police had reached to the place of occurrence. She also went to the place of occurrence with police but she did not enter into the house of accused Sajal Nath when her husband was being assaulted. PW-8 had volunteered that out of fear she did not go there and she was not at her home all along till police came. She further stated that she went to the side of the house of Sajal Nath and witnessed the assault on her husband.

13.5 In her cross-examination she further stated that-"in between my house and house of Sajal Nath there were three houses and those houses are owned by Krishna Charan Nath, Haribal Nath, Suhil Nath and then house of Sajal Nath." She further stated in her cross-examination that when she went to the place of occurrence she found Dijen at that place and she heard that Dijen telling the police that they committed the murder.

13.6 Being further confronted, she stated that at the place of occurrence police did not record her ejahar. She volunteered that police first gave priority for the treatment of her husband and took the victim to the hospital. She further stated that the accused persons were known to her since they all her relatives. She denied the suggestion that her husband did not die due to the assault of the accused persons.

PW-9, Pradip Debnath is the full-blooded brother of the deceased. He deposed that he used to stay in the same house where the deceased used to stay. According to him, the incident was started at about 12:00 hours from their house. He had seen Sebak Nath, Dijen Nath, Swapan Nath, Dipak Nath, Dhirendra Nath, Indrajit Nath, Swadesh Nath, Sajal Nath, Suman Nath and Sashi Nath had entered into their house being armed with lathi. Sebak Nath was armed with lathi and he was little bit ahead of all the accused persons and he first caused hurt to his brother Pradip. Then his brother retaliated, ran away and took shelter in the house of Haribal Debnath. Thereafter, all the accused persons had chased his brother and cordoned the house of Haribal Debnath. He observed the same from the gate of his house. Then his brother went to the house of Sajal and after half an hour from distance he noticed that body of his brother was thrown in front of the house of Sajal Nath. Subsequently, he noticed that police came when they took the name and particulars and then they took his brother with them. Subsequently, he went to the hospital after being informed the news that his brother had expired. He put his signature (Exbt.-10/1) on the inquest. This witness further deposed that they did not make any attempt to save his brother out of fear and the accused persons did not assault him or attack upon him. He deposed that his brother had cut down all Agar trees of Dijen Nath and for that the accused had committed such offence. He identified all the accused persons in the dock. He further deposed that on that date itself the police had seized one blood stained shabal, some blood stained earth, one blood stained axe from the road side in front of the house of Sajal Nath where he put his signature (Exbt.11) in the seizure list. He further deposed that he had seen several cut marks on the body of his brother.

14.1 In his cross-examination he stated that he did not specifically state to the police that he witnessed the incident standing in front of the gate or that the accused persons had cordoned the house Haribal Debnath.

PW-12, Sri Tapan Debnath is the son of the deceased. He deposed that all the accused persons had entered into their house with arms like lathi, dao, axe, sticks etc. Seeing them, out of fear, he went to the backside of their house and noticed that the accused persons were damaging their huts. He further deposed that his father did not open the door and Dijen had uttered addressing my father that if he did not come out he would kill his father. Thereafter, his father came out and at that very moment caused hurt to his father by a stick. Then he noticed that his father came out of their house and went to the house of Haribal Debnath and the accused persons had chased him. This witness also came out. He further deposed that his father went to the kitchen hut of PWs 1 and 2. He had further seen that after 4/5 minutes his father running out from that houses and his father went to the house of Sajal Nath. Seeing that, his mother sent him to the house of Pramode Nath, a Member of Gaon Panchayat. Then the Member had informed the police. When he returned, he noticed that his father lying injured on the road in front of the house of Sajal Nath and the local people were observing the scene from distance. He had seen that one of the eyes of his father was taken away and also noticed other injuries on the person of the deceased. Later on, his father was expired in the hospital. PW-12 further stated that his father had cut down some Agar plants of the house of Swapan and Dijen and out of grudge they killed his father.

15.1 In his cross-examination when his attention was drawn to his statement recorded under Section 161, CrPC it was found that he did not state to the police that accused persons asked his father to come out of the room otherwise they would kill him.

Nothing more materials were elicited by the defence.

Next , we should evaluate the evidence of PW-1 and PW-2.

16.1 PW-1, Haribal Debnath alias Haridhan Debnath who was the owner of the house to which the deceased had tried to take shelter and hid himself in the kitchen. He deposed that on the fateful day at about 12:00 noon the deceased ran into his house and hid himself in the kitchen. Within a short while, the accused persons namely Sebak Nath, Krishna Nath and Swapan Nath had appeared in his house with lathi. He further deposed that out of those three persons Sebak Nath had a fresh bleeding injury in his chest and they told that Pradip Debnath had assaulted Sebak Nath and caused his injuries. As a result, they came to his house in search of Pradip Debnath and asked him to bring Pradip Debnath out. At that time he told the accused persons that he must call police before bringing Pradip Debnath out. When he was calling police from his mobile Pradip Debnath had escaped through the back door of his kitchen. He took shelter in the house of Sajal Nath. After a while police recovered Pradip Debnath from the house of Sajal Nath in injured condition. In the afternoon he died. The accused persons namely Sebak Nath, Swapan nath and Krishna Nath were identified by the said witness. He further deposed that police had produced him to the Court of learned Judicial Magistrate to record his statement under Section 164 of CrPC which he made. He identified his signature (Exbt.1/1) on the said statement.

The evidence of this witness could not be shaken by the defence in his cross-examination.

PW-2, Namita Nath is the wife of PW-1, Sri Haridhan Debnath. She deposed that on the fateful day at about 12:00 noon, the deceased Pradip ran into her house and hid himself inside her kitchen and shut the door from inside. Immediately, accused Sebak Nath, Swapan Nath and Krishna Nath had appeared in search of Pradip Debnath and accused Swapan Nath had a lathi in his hand. Said persons asked her to bring out Pradip Debnath from the kitchen because Pradip had assaulted Sebak Nath. She had seen bleeding injury on the chest of Sebak Nath. She further deposed that she told them that they had to inform the police and Sebak Nath should be taken to hospital. Her husband started to call police from his mobile and by that time the deceased escaped from the kitchen through the back door of the kitchen. She further deposed that Pradip Debnath had died in the afternoon. Later on, police came and interrogated her and her husband.

17.1 In course of her examination-in-chief, when she stated that she did not state to police when Pradip Debnath escaped through the back door of their kitchen the accused persons attacked him in the house of Sajal Nath and assaulted him which she made in her 161 statement, at that time she was declared hostile.

17.2 In her cross examination she stated that the deceased was not assaulted in her house. Nothing more was elicited from her cross-examination.

PWs-3 & 4 were declared as hostile. The evidence of PW-5 was hearsay.

PW-6, Dr. Debashis Debnath being a doctor of Dharmanagar Hospital had conducted postmortem examination over the dead body of the deceased in connection with Dharmanagar GDE 468 dated 08.08.2014. According to him the cause of death was 'Cranio cerebral injury leading to cardio respiratory failure' and such injury was ante-mortem. The postmortem examination report was marked as Exbt.6. The doctor had identified his signature on the postmortem report. He also identified the signatures of other doctors who accompanied him at the time of postmortem examination.

PW-7, Smt. Sharmistha Mukherjee was posted as Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura on 19.08.2014. She deposed that on that date, on the prayer of I.O. in connection with Panisagar PS Case No.47/2014 she recorded on oath statement of two witnesses namely, Haribal Debnath alias Haridhan Nath and another Smt. Namita Nath, w/o Haribal Debnath under Section 164(5) of CrPC and after recording their statements, she put her signatures on the said two statements (Exbt.1 and Exbt.2) respectively.

PW-10, Sri Ratan Rabi Das was discharging his duty as S.I. of Panisagarh Police Station on 08.08.2014. He deposed that while he was discharging his duty he received an information on mobile from the duty officer of Panisagar Police Station that in Rowa village in Chamtilla area a person was being assaulted by a group of people and he was given instruction to enquire into the matter. Accordingly, he went to the place of occurrence along with PS staff. There a female gave a signal by her hands. Then that female informed him giving the names of some persons that those persons had assaulted her husband in the house of Sajal Nath and thereafter the body of her husband was placed on the road in front of the house of Sajal Nath. That female took him to that place where the body was lying. He further deposed that thereafter he arranged for shifting the injured to Panisagarh Hospital along with staff and that female. Name of that female was revealed as Kalpana Debnath, wife of the injured Pradip Nath. He cordoned the place of occurrence wherefrom the body was recovered and he further stated that he remained there for some time. The female disclosed the names of the assailants though he remained at the place of occurrence, he did not attempt either to lodge suo motu FIR or to receive the FIR for investigation of the case. Thereafter this witness deposed that he reached at the place of occurrence, i.e. from where the dead body was recorded at about 12:45 hours and he awaited there upto one and half hours. During his stay he did not receive any information whether the injured was expired or not. After one and half hours keeping his staff he returned. He found cut injury on the body of the injured but the details of the injuries could not be detected by him. He further deposed that he realized that the victim was assaulted by somebody. Subsequently, he came to know that he was sent to the Place of occurrence with reference to Panisagarh GD Enty No.250. He went out from the PS by making GD Entry No.249 and the information of the incident was entered in GD Entry No.250.

21.1 In reply to a query made by the Court he admitted that when a cognizable offence took place in his presence, he should investigate and he should lodge an FIR and in the present case also he should lodge an FIR.

21.2 On being further questioned by the Court as to why he did not register any case in this case or investigate, this witness did not respond anything and the demeanour of the witness was recorded by the Court. However, the witness stated that at that relevant time he had no knowledge that he should lodge an FIR and to investigate the matter. In reply to a question made by the Court he stated that he had forgotten the names of the assailants as stated by Smt. Kalpana Nath to him.

21.3 In his cross-examination, PW-10 stated that he did not state to the investigating officer that the female also named the assailants but he had forgotten the names of those assailants.

21.4 He denied the suggestion that the female did not inform him that her husband was assaulted inside the house of Sajal Nath and that then body was placed on the road. However, he stated that he did not make GD Entry regarding his action.

PW-11, Pramila Nath has failed to bring any material evidence.

PW-13, Sri Ranjit Sarkar was posted at Dharmanagar Police Station on 08.08.2014 as PSI. He had noticed several injuries from various parts of the body of the deceased. He conducted inquest over the dead body. He identified his signature. In his examination in chief PW-13 deposed that he did not register a case because already FIR was drawn under Panisagarh Police Station. The said witness also had prepared dead body challan and arranged for postmortem examination. He seized blood samples of the deceased by a seizure list (Exbt.13).

PW-14, Dr. Subhankar Nath who examined the blood samples of the deceased along with the seized weapons used to commit crime. His deposition may be reproduced here-in-below:

"I have been serving in the SFSL, Narsinghgar since September, 2002. On 23-08-2014 vide Memo No. 2659/SDPO/PNS dated 22-08-2014 through messenger SFSL, Narsinggar received one sealed wooden box parcel being covered with cloth bearing specimen seal impression containing 7 exhibits marked as exhibit-A, B, C, D, E, F and G. Those were first examined by Sabyasachi Nath, Chemical Examiner and blood of human origin was detected in all the exhibits. Thereafter those exhibits were sent to me for DNA profile. Those exhibits are the following .

1] Exhibit-A Some blood stained soil.

2] Exhibit-B is another blood stained soil.

3] Exhibit-C is another blood stained soil.

4] Exhibit-D one metallic axe with wooden handle said to contain blood.

5] Exhibit-E one metallic bar (iron made shabol) said to contain blood.

6] Exhibit-F one loose paper packet containing a white colour piece of cloth (Dhuti) with some reddish colour border said to be the wearing apparels of the deceased.

7] Exhibit-G one sealed envelope containing some pieces of gauge cloth said to contain blood sample of the deceased.

I examined all those exhibits after receiving those articles on 04-02-2015. I examined those articles from 05-02-2015 to 19-03-2015. After analysis I was able to create DNA profile in respect of Exhibit-A, B, C, D, E, F and G. All the exhibits contained human male blood. The allene amplified loci of exhibits-A, B, C, D, E, F and G are matches with each other. On the basis of the above observation I opined that the blood stain found in exhibit-A, B, C, D, E and F were originated from single source which is exhibit-G that is the blood sample of the deceased. I submitted my report on 19-03-2015 along with annexure-A in two sheets. On identification the entire report is marked as exhibit-14. This is the report as submitted by Sabyasachi Nath. On identification marked as exhibit-15.

Cross-examination: Declined."

PW-15. Sri Partha Chakraborty being the investigating officer of the case deposed that on 08.08.2014 at about 12:45 hours he received a telephonic information at Panisagarh Police Station from one Haridhan Debnath alias Haribal of Rowa, Chamtilla to the effect that at about 12:30 hours, some local persons being armed with sharp cutting weapon and lathi caused hurt to one Pradip Debnath in the house of Sajal Nath and the body of Pradip Debnath was lying on the road in front of the house of Sajal Nath in alarming condition with bleeding injuries and sought for police assistance. Being directed by Officer-in-Charge, one Ratan Rabi Das, who was on duty at Panisagar as PSI, asked to verify the information. That was entered in GDE No.250 dated 08.08.2014. Ratan Rabi Das returned on 17:35 hours and made the GD entry No.262, dated 08.08.2014. In the said GD Entry Ratan Rabi Das stated that on his way to the place of occurrence with police vehicle one Kalpana Nath, wife of the victim stopped the police vehicle and stated him that one Sebak Nath and others attacked and assaulted her husband Pradip Debnath indiscriminately by sharp cutting axe, iron bar and lathi and her husband was lying on the road in alarming condition and then Kalpana accompanied him to the place of occurrence and at the place of occurrence he found the injured lying in senseless condition and he arranged for shifting of the deceased to Panisagarh CHC by police vehicle. That GD Entry made at 17:35 hours. Subsequently formal FIR in connection with this case was lodged by Kalpana Nath at about 19:00 hours which was reduced into writing by PW-15 and based on that ejahar he registered Panisagarh PS case No.47/14. Said Kalpana Nath put her signature on the said ejahar. PW-15 also countersigned the said ejahar which was marked as Exbt.9/1 on identification. The printed FIR form filled up by him on identification was marked as Exbt.15. PW-15 further deposed that the GD Entry as made by Sri Ratan Rabi Das, PSI was the first information received by the police station regarding cognizable offence of murder and he has no explanation why he did not treat the contents of that GD Entry as FIR. Thereafter, he deposed that Dharmanagar PS had arranged for postmortem examination over the dead body of the deceased and in course of investigation he seized the weapon of offence and other articles which were questioned and subsequently sent for examination in the SFSL. He identified the accused axe and shabal (crow bar) which were marked as Exbt. MO- I and MO-II. He prepared the site plan for the places of occurrence with index. According to him, the first place of occurrence was the house of the deceased (Exbt.17), the second place of occurrence was the house of Haridhan Debnath alias Haribal (Exbt.18) and the third place of occurrence was the house of Sajal Nath (Exbt.19) which included the roadside where the dead body was found. He collected postmortem report as well as the SFSL report. He also arranged for recording of statements of PWs 1 and 2 under Section 164 of CrPC. During his examination-in-chief he confirmed the statements of the hostile witnesses.

In course of examination of all the accused persons under Section 313 CrPC all the accused-appellants had pleaded their innocence and denied to adduce evidence on their behalf. However, on consideration of subsequent prayer, the accused persons had adduced evidence by way of producing 6(six) witnesses including the appellant Sebak Nath as DW-3 and Sri Swpan Nath, DW-4.

DW-1, Sri Sanjoy Deb deposed that he only had seen the dead body from a distance. He had no other knowledge about the incident.

DW-2, Smt. Barnali Nath only deposed that she saw a huge gathering and police personnel on the road.

Accused Sebak Nath as DW-3 deposed that he had some disputes with the deceased Pradip Debnath in money matter about two days prior to the date of incident. He further deposed that on the relevant date Pradip Debnath went to his house and caused him grievous injury by means of Shabal (crowbar) at 12/12:30 pm. He further deposed that he raised alarm and when Pradip Debnath ran towards the house of Haribal Nath at that time he and his brother Swapan Nath went to hospital for his treatment. He further deposed that before going to the hospital he went to the house of Haribal Debnath and called Pradip Debnath from the house of Haribal Nath to go with them to the hospital but he refused. He was taken to hospital by his brother Swapan Nath.

29.1 In his cross-examination, DW-3 stated that he did not lodge any case against Pradip Nath. He denied the suggestion put forth by the prosecution that he was one of the members of the unlawful assembly being armed with deadly weapons and murdered deceased Pradip Debnath at the house of Sajal Nath.

DW-4, Swapan Debnath was also an accused of the case appearing as a witness to defend himself and deposed that on hearing cry of his brother that Pradip Debnath had caused hurt upon him by a shabal on road, he rushed to that place and called one auto and straightway he along with his brother (DW-3) went to Tilthai Hospital wherefrom he was referred to Dharmanagar hospital. He denied the suggestion that he was a member of unlawful assembly being armed with weapons and caused the murder of Pradip Nath. He also denied that he first entered in the house of Pradip Debnath then to the house of Haridhan Nath and thereafter had given deadly blows to Pradip Debnath at the house of Sajal Nath.

DW-5, Cotton Ali deposed that on the relevant date he used to work in the ring well and in his ring well the accused persons namely Dwijen, Suman, Krishna, Indrajit, Sajal, Swadesh and Sashi total 8 (eight) persons were also working. He further deposed that when they were working they heard that Pradip Debnath was quarrelling with others and when he went to the place of occurrence, by that time, Pradip was shifted to hospital. He also saw Kalpana, the wife of Pradip was at the place of occurrence but Kalpana did not disclose the name who murdered Pradip Nath.

31.1 In his cross-examination he stated that he did not state to the police that at the relevant time the accused persons as named above, were working with him. He denied that his depositions were false.

DW-6, Kali Krishna Das deposed that he did not know the names of all the accused persons, however, he could recognize the seven persons out of nine persons present in the Court. He further deposed that about three years back one day in a house of a Muslim person he was working along with Dhirendra, Dijendra, Swapan, Sajal, Suman, Dipak and Indrajit. All of them were engaged in a ring well. They heard that one incident of fighting was taken place in front of the house of Sajal Nath.

32.1 In his cross-examination, he denied that he was a procured witness. He further deposed that he did not state to police that the accused Swapan had worked with him on that date and time.

We have closely screened the above evidence. According to us, the evidence of the PWs 8, 9 and 12 who are the wife, brother and son of the deceased are not free from any doubt. As such, the integrity of these witnesses should be tested carefully and cautiously.

PW-8, the wife of the deceased had lodged an oral complaint at 19:00 hours on 08.08.2014 on the basis of which FIR No.47/2014 was registered. This FIR had referred to the GD Entry No.263. She had implicated 11 persons, namely, (1) Sri Sebak Nath, (2) Sri Digendra Debnath alias Dwijen, (3) Sri Swapan Debnath, (4) Sri Dipak Debnath, (5) Sri Dhirendra Debnath, (6) Sri Indrajit Debnath, (7) Sri Swadesh Debnath, (8) Sri Sajal Debnath, (9) Sri Suman Debnath, (10) Sri Sashi Debnath and (11) Sri Nripendra Debnath who according to her had attacked her husband unitedly with sticks, sharp-edged knife, bricks, crowbars and axe. All the persons had called her husband Pradip Debnath with the intention to kill him. Her husband had fled away and took shelter in the house of Haridhan Nath (PW-1). The accused persons had followed him to the house of PW-1. Her husband again had fled away to the house of Sajal Nath where he was brutally assaulted, killed and left the body in front of the house of Sajal Nath. By that time police came and she went to the place of occurrence with police and saw her husband in grievously injured condition with bleeding injuries and in half-dead state. She and her relatives had taken her husband initially to Panisagar hospital and therefrom to Dharmanagar where the doctor declared her dead. She had further stated that there was a long standing dispute between the accused persons and her husband in regard to land and trees.

Learned counsel for the appellant submitted that this FIR is hit by Section 162 of CrPC for the reason that before registration of this FIR GD Entry No. 261, dated 08.08.2014 (Exbt.20/1) was made by PSI, Ratan Rabi Das (PW-10) of Panisagar PS at 17:35 hours where the commission of a cognizable offence was clearly reported. As such, according to learned Sr.counsel, Mr.Biswas for the appellants, the said GD Entry has to be treated as FIR and the subsequent complaint lodged by Smt. Kalpana Nath, PW-8 in the evening at 19:00 hours is hit by Section 162 of CrPC. Under GD Entry No. 261, it is clearly stated that when the police had reached near the place of occurrence at that time one Kalpana Nath had stopped the police vehicle stating that one Sebak Nath and others had attacked Pradip Debnath indiscriminately with sharp cutting axe, iron bar and lathi and that her husband was lying on the road sustaining grievous injuries in front of the house of Sajal Nath.

Learned Sr. Counsel has pointed out that at that instance the wife of the deceased i.e. PW-8 had only mentioned the name of Sebak Nath. We have noticed the deposition of PW-10 and find similar version which he recorded in the said GD Entry. In his deposition he has stated that while he along with other was proceeding to the place of occurrence then a female had given signal by her hands and the said female at that time disclosed some names who assaulted her husband in the house of Sajal Nath but this witness could not mention the names of those persons whose names were disclosed by her during deposition. He has further stated in his deposition that he did not make any attempt to lodge suo motu FIR or to collect the FIR for the purpose of investigation of the case at the place of occurrence. However, he admitted that it was his mistake. We have further noticed that PW-10 has stated that he went to the place of occurrence with reference to Panisagar PS GD Entry No.250 and the information of the incident was entered in DG Entry No.250. From the GD Entry No.261, it is found that PW-8 Kalpana Nath had mentioned the name of one Sebak Nath and if this assertion would have been treated as FIR, then, the name of Sebak Nath would transpire in the said GD Entry that was recorded by Panisagar PS at 17:35 hours. The incident was occurred at about 12:00 hours at noon and the body was recovered by PW-10 at 12:45 hours. The deceased was senseless and when he was taken to Panisagar Hospital on the way to Dharmanagar Hospital, he died. It reveals that the deceased died immediately after attack out of the injuries inflicted upon him and the body was recovered i.e. at 12:45 within a very short while of the incident. In the oral complaint which was treated as FIR after being reduced into writing, explaining the cause of delay wherein PW-8 stated that-" the ejahar could not be lodged at due time since I and the members of the family were busy in the treatment of my husband." As we said, that the husband of PW-8 had died within a very short while of the recovery of his body, then explanation is found to be unsatisfactory. Furthermore, we find force in the submission of learned Sr. counsel for the appellant that the FIR No.47/14 is hit by Section 162 of CrPC and the Panisagar PS GD Entry No.261 dated 08.08.2014 which was recorded at 17:35 hours, should be treated as FIR where a clear case of commission of cognizable offence was disclosed. In the said entry, we find that the complainant i.e. PW-8 had mentioned the name of Sebak Nath as one of the assailants. At that time on her way to hospital she also could inform the name of other assailants to the police officer but she did not do so. It further reveals from her deposition that between her house and the house of Sajal Nath there were three houses. It has been proved from her evidence (cross-examination) that she did not follow her husband and that within half an hour police had reached to the place of occurrence and she went to the place of occurrence with police and she admitted that she did not enter into the house of accused Sajal Nath when her husband was being assaulted and she had volunteered that out of fear she did not come and she was all along at her home till police came.

Similarly, PW-9 the brother was also inside the house at the time of incident. He did not witness the incident which had happened inside the house of accused Sajal Nath. However, PW-9, the brother of the decased has stated that Sebak Nath, Dijen Nath, Swapan Nath, Dipak Nath, Dhirendra Nath, Indrajit Nath, Swadesh Nath, Sajal Nath, suman Nath, and Sashi Nath had entered into their house and Sebak was armed with lathi and who was little bit ahead of other persons. He has further stated that his brother had a land dispute because he had cut down Agar plant of accused Dwijen Nath.

PW-12, the son of the deceased also had not seen the incident because he was sent by his mother to the Member of the Gaon Panchayat. In this situation, it appears to be very difficult to us to come a definite conclusion about the implications of many of the accused persons who are the appellants herein in connection with the crime. Keeping in mind the evidence of PWs-8, 9 and 12 and the analysis we have made here-in-above, if we now proceed to the evidence of PW-1 and PW-2, then, according to us, these two witnesses are the most important and vital witnesses of the prosecution case.

PW-1, Haridhan Debnath alias Haribal Nath has stated that the deceased Pradip Debnath had taken shelter in the kitchen of his house. At that time Sebak Nath, Krishna Nath and Swapan Nath had entered into his house with lathi and he noticed that Sebak Nath with bleeding injury at his chest. On enquiry, Sebak Nath told him that the deceased had caused injury to his person and for that reason they came to his house in search of Pradip Debnath and asked him to bring Pradip Debnath out. While PW-1 was calling police from his mobile, the deceased had fled away from his house and entered into the house of Sajal Nath for shelter. Here, from the evidence of PW-1, we find that only Sebak Nath, Krishna Nath and Swapan Nath had entered his house.

39.1 In his cross-examination, PW-1 had denied the suggestion that he did not see Sebak Nath, Swapan Nath and Krishna Nath in his house with lathi in their hands.

PW-2, the wife of PW-1 though was declared as hostile, but the part of her evidence that -deceased Pradip Debnath had taken shelter in their kitchen; shut the door from inside; then immediately accused Sebak Nath, Krishna Nath and Swapan Nath had appeared in search of Pradip Debnath with lathi in their hands; she had seen accused Sebak Nath with a lathi in his hand and that they asked to bring out Pradip Debnath from the kitchen because Pradip had assaulted Sebak Nath; can be used in favour of prosecution. It is clear from the evidence of PWs 1 and 2 that only three persons had entered into his house in search of the deceased and they were Sebak Nath, Swapan Nath and Krishna Nath. It should mention herein that no charge has been framed against accused Krishna Nath by the learned trial Judge. So we are not considering the evidence of PW-1 and PW-2 relating to accused Krishna Nath. At this juncture, if we take into evidence of PWs 1 and 2 relating to Sebak Nath and Swapan Nath together with the evidence of Sebak Nath as DW-3, then, we find that Sebak Nath admitted that the deceased had caused injury to his person. Sebak Nath had raised alarm and out of that the deceased ran towards the house of Haridhan Nath (PW-1) and at that time he and Swapan, his younger brother went to the house of Haridhan and called Pradip from the house of Haridhan on their way to hospital.

Swapan Nath, DW-4, the brother of Sebak Nath in his examination-in-chief has stated that hearing the cry of Sebak Nath that the deceased Pradip Debnath had caused hurt to him by a shabal (crowbar) on road, he rushed to the spot and called one auto and straightway they went to Tilthai hospital.

41.1 In his cross-examination, he has admitted that the deceased had taken shelter in the kitchen of the house of Haridhan Nath, PW-1. From a bare reading of the evidence of DW-3 and DW-4, the two brothers we find discrepancies in their statements to the effect that when Sebak Nath (DW-3) has stated that on their way to hospital they went to the house of Haridhan Nath and called him, but Swapan (DW-4) has stated that they straightway went to hospital. As such, the integrity of both the witnesses appear to be doubtful but one fact has been proved beyond reasonable doubt that both of them had entered into the house of Haridhan Nath and called the deceased from the house of Haridhan to go with them to hospital which the deceased had refused.

From the evidence of DW-3, it also reveals that he did not lodge any complaint to the police station.

From the postmortem report and the evidence of the doctor, we find there are multiple deep cut injuries over the person of the deceased.

What is transpired from the analysis of the aforesaid evidence that Sebak Nath had entered into the house of the deceased with lathi and the other accused persons, according to PW-8, were behind Sebak Nath. PWs 1 and 2 are very categorical to their statements that Sebak Nath, Swapan Nath had entered into their house and they found injury to the chest of Sebak Nath. Both Sebak and Swapan according to PWs 1 and 2 had asked the PWs 1 and 2 to bring out the deceased Pradip Debnath who had taken shelter in their kitchen and locked the door of the kitchen from inside. When PW-1 was calling police, by that time the deceased had fled away from his kitchen and tried to take shelter in the house of Sajal Nath. After a few while, his body was found in front of the gate of the house of Sajal Nath with severe deep cut injuries on his person. PW-1 has specifically stated that Sebak Nath and Swapan Nath came to his house in search of Pradip Debnath and asked him to bring Pradip out. Then he told them that he must call police before bringing Pradip Debnath out and at that time Pradip Debnath had escaped through the backside door of the kitchen and went to the house of Sajal Nath and after a while police had recovered his body in injured condition from the house of Sajal Nath. So, the prosecution has been able to prove the facts and circumstances of the episode starting from the house of the deceased then the episode at the house of PWs 1 and 2 and the recovery of the body of the deceased from in front of the gate of the house of accused Sajal Nath; and the presence of Sebak Nath and Swapan Nath during those episodes except their presence at the time of recovery of body of the deceased.

Both Sebak Nath and Swapan Nath had adduced their evidence when Sebak Nath deposed that on his way to hospital accompanied by Swapan Nath they had called the deceased to accompany them. In that case, in our opinion they were under obligation to explain with cogent evidence as to how the deceased had suffered severe deep cut injuries on his person within a very short while of their presence in the house of Haridhan Nath under in terms of 106 of the Evidence Act. That apart, PW-8, the wife of the deceased had disclosed the name of Sebak Nath at the very first instance when the body of her husband was taken to the hospital. When the prosecution has been able to prove the case that accused Sebak Nath and Swapan Nath were searching for the deceased first at his own house and then on his fleeing away they had also followed him and had asked PWs 1 and 2 to bring the deceased out of their kitchen, then obligation cast upon Sebak Nath and Swapan Nath to come out satisfactory explanation what prompted them to enter into the house of PW-1 and PW-2 and under what circumstances the deceased had fled away from the kitchen of PWs-1 and 2. According to us, in their evidence, both Sebak Nath and Swapan Nath had failed to discharge their burden to come out with a plausible explanation which was especially within their knowledge. Such failure leads us to come to a finding that both Sebak Nath and Swapan Nath were responsible for the death of the deceased Pradip Debnath. We find no specific evidence against other appellants namely, Sri Digendra Debnath alias Dwijen, Sri Dipak Debnath, Sri Dhirendra Debnath, Sri Indrajit Debnath, Sri Swadesh Debnath, Sri Sajal Debnath, Sri Suman Debnath, Sri Sashi Debnath and Sri Nripendra Debnath. As such, they deserve to be acquitted.

45.1 The chain of entire episode starting from the attack upon the deceased at his own house; fleeing away of the deceased to the house of PWs 1 and 2, and then again to the house of Sajal Debnath where he was brutally killed was complete and pointed towards the guilt of the appellants Sebak Nath and Swapan Nath only beyond any reasonable shadow of doubt and none else.

In the result, according to us, the prosecution has been able to prove the case beyond any reasonable shadow of doubt against the appellants Sebak Nath and Swapan Nath that they had committed the murder of deceased Pradip Debnath.

Accordingly, the conviction and sentence in regard to the accused-appellant Sebak Nath and Swapan Nath as returned by learned Sessions Judge, Dharmanagar, North Tripura is upheld and affirmed.

However, the role of other appellants behind the murder of Pradip Debnath has not been proved beyond reasonable doubt, and thus, the appellants namely Sri Digendra Debnath alias Dwijen, Sri Dipak Debnath, Sri Dhirendra Debnath, Sri Indrajit Debnath, Sri Swadesh Debnath, Sri Sajal Debnath, Sri Suman Debnath, Sri Sashi Debnath and Sri Nripendra Debnath are entitled to benefit of doubt. The judgment and order of conviction and sentence, passed by the learned trial court is set aside and quashed against the appellant Nos. 2, 4, 5, 6, 7, 8, 9, 10, 11. Consequently, they are acquitted from the charges levelled against them and they be set at liberty forthwith, if not required in any other case. They are discharged from the liability of their respective bail bonds and their sureties are also discharged.

In the result, the appeal fails against Sebak Nath and Swapan Nath, the appellant Nos. 1 and 3 and they are to suffer remaining period of sentence in terms of the judgment dated 30.10.2017, passed by the learned Sessions Judge, North Tripura, Dharmanagar in case No. ST/T-1/20/2015.

Issue release warrant against the appellants namely, Sri Digendra Debnath alias Dwijen, Sri Dipak Debnath, Sri Dhirendra Debnath, Sri Indrajit Debnath, Sri Swadesh Debnath, Sri Sajal Debnath, Sri Suman Debnath, Sri Sashi Debnath and Sri Nripendra Debnath.

Thus, the appeal is partly allowed.

Send back the LCRs forthwith.