Shiba Hari Jamatia vs State Of Tripura

S. Talapatra, J

Heard Mr. A. Acharjee, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Addl. Public Prosecutor appearing for the State.

The appellant has been charged under Section 302 of the IPC for committing murder of his father namely Param Singh Jamatia on 24.01.2009 at about 21:00 hours and he has been convicted on the said charge by the Additional Sessions Judge, West Tripura, Khowai, by the judgment dated 12.12.2013 delivered in Case No.ST 20(WT/K) of 2013 observing that from appreciation of the evidence of PWs 1, 3 and 4 it has clearly surfaced that the appellant has committed murder of his father and hence he is liable to be convicted under Section 302 of the IPC. Pursuant to the said judgment, the appellant has been sentenced to suffer R.I. for life and to pay a fine of Rs.5000/- with default stipulation. The said judgment and order of conviction and sentence is under challenge in this appeal.

The genesis of the case is rooted in the complaint (Exbt.1) by one Shiba Kumar Jamatia (PW 1), the full blood brother of the appellant on 25.01.2009 stating that on 24.01.2009 at about 9 pm his elder brother namely Shiba Hari Jamatia (aged about 25 years) had killed his father namely Param Singh Jamatia (aged about 56 years) by hacking with a 'dao' in his hut. His brother (the appellant) hacked his father on neck, on the area above right eye and on the thigh of the left leg. There was a dispute according to the informant in respect of the landed property. After killing his father, the appellant fled away from the house. At the time of hacking, his grandmother Thapi Rani Jamatia who died before the trial and his younger sister Sajala Laxmi Jamatia (PW 2) were present in the place of occurrence. Based on the said complaint, Teliamura P.S. Case No.05/2009 under Section 302 of the IPC was registered and taken up for registration. The Police having completed the investigation submitted the final report, charge sheeting the appellant. The police papers were committed to the Court of the Additional Sessions Judge, West Tripura, Khowai as he then was and the Addittional Sessions Judge having taken cognizance framed the charge under Section 302 of the IPC as stated, to which the appellant pleaded innocence and claimed for trial.

In order to substantiate the charge, the prosecution adduced as many as 11 witnesses including PWs 1, 2 and 3. That apart, the prosecution introduced 8(eight) documentary evidence including the postmortem examination report, inquest report and report of the State Forensic Science Laboratory (SFSL). After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C. where he reiterated his innocence and claimed that he has been falsely implicated in the case. On appreciation, the Addl. Sessions Judge, as stated earlier, convicted the appellant under Section 302 of the IPC.

Mr. A. Acharjee, learned counsel appearing for the appellant has submitted that he would not contest the cause of death but the involvement of the accused in the commission of crime could not be proved by the prosecution beyond reasonable doubt. According to him PW 1, who filed the information did not see the occurrence and he has stated in the ejahar that PW 2 and PW 3 had seen the occurrence. Thus, the entire prosecution case is structured on their testimony. Mr. Acharjee, learned counsel has submitted that PW 2 was declared hostile as she did not support the prosecution case. Even PW 4 did not state anything in respect whether she saw the occurrence or not. In such circumstances, the finding of the conviction cannot be sustained.

Mr. S. Ghosh, learned Addl. Public Prosecutor has submitted that there cannot be any amount of doubt in respect of the commission of murder. The postmortem examination report is very categorical about the cause of death. Dr. Jayanta Sarkar who carried out the postmortem examination has categorically observed as under:

"After doing PM examination I came to the conclusion that the cause of death is from Haemorrhage & inhaling of effused blood into the respiratory tract."

Mr. Ghosh, learned Addl. P.P. has taken us to the testimony of PW 3, the mother of the appellant. PW 3 has stated as under:

"Param Singh Jamatia was my husband. At about 3 years back my husband had been killed by my elder son Shiba Hari Jamatia. He killed my husband by giving blow of dao out of land disputes."

That witness has also identified the appellant Shiba Hari Jamatia in the trial.

Mr. Ghosh, learned Addl. P.P. has further submitted that even PW 4, Smt. Puspa Bala Jamatia, the wife of the appellant has stated in the trial as under:

"My husband killed my father-in-law by giving several blows of dao on person of my father-in-law relating to a land dispute."

Mr. Ghosh, learned Addl. P.P. thereafter has referred to the testimony of PW 7, Sibaji Debbarma who had in the trial stated that he came to learn from his mother-in-law (PW 3) that her elder son dealt blow of 'dao' relating to a land dispute on his father. According to Mr. Ghosh, if these testimonies of PWs 3, 4 and 7 are read together what would eminently appear is that the PWs 3 and 4 saw the occurrence. Hence, their testimonies cannot be disbelieved for any reason. To appreciate the rival contentions, it would be apposite to take a brief look at the evidence. True it is that PW 1 did not see the occurrence but filed the information but nowhere in the oral complaint he has disclosed from whom he came to know about the involvement of the appellant. However, the charge sheet after investigation was filed against the appellant. At the trial PW 1, Shiba Hari Jamatia has narrated what he had depicted in the complaint. According to him, there existed a land dispute between his father and his elder brother. He has reiterated that his mother Asha Devi Jamatia (PW 3) and the grandmother Thapi Rani Jamatia, now deceased and elder sister Sajala Laxmi Jamatia (PW 2) witnessed the incidence of killing of his father by the appellant. PW 1 identified the complaint (Exbt.1). He also identified the weapon of assault, a 'dao' (Exbt. M.O.1) along with the seizure list (Exbt.2) of the said 'dao'. In the cross-examination, his statement was even not seriously confronted. PW 2, Smt. Sajala Laxmi Jamatia turned completely hostile to the prosecution case and as consequence of such turnaround, by leave of the Court she was declared hostile and put to cross-examination but nothing substantive could be elicited from such cross-examination. What PW 3, Smt. Asha Devi Jamatia, the mother of the complainant and the wife of the deceased has stated has already been recorded while recording the submission. What PW 4, Puspa Bala Jamatia, the wife of the appellant has stated has already been referred at the time of recording the submission of the learned counsel. PW 5, Shri Ananta Sadhan Jamatia is a neighbour but he did not state anything to implicate the appellant. PW 6, Shri Gaya Singh Jamatia who had appeared in the aftermath but he also did not support the prosecution case and was declared hostile. PW 7, Sibaji Debbarma, the brother-in-law of the appellant has stated that he heard about the incident from his mother-in-law (PW 3). PW 8, Dr. Shubhankar Nath, a Forensic Scientist from the Tripura State Forensic Science Laboratory (SFSL) has stated that certain blood samples were sent to the Laboratory for identifying the blood group. He has stated that his report (Exbt.4) would show that Exbt. A, the blood of the deceased, was found to be the blood group belonging to 'O' group. Beyond that the Exbt. B (the sample of earth mixed with blood) contained the same blood group. But regarding Exbt.C there is no specific opinion. PW 9, Shri Ahini Kumar Jamatia who appeared in the place of occurrence after getting the information did not state anything to implicate the appellant. PW 10, Shri Surasen Tripura was the duty officer at Teliamura P.S. on 25.01.2009, and he received the complaint from PW 1 and registered the case following the due process of filling up of the FIR form. He identified his signature thereon. PW 11, Manik Deb, a Sub-Inspector of Police at the relevant point of time, posted at Teliamura P.S., is the investigating officer. In the trial, he narrated how he had conducted the investigation by preparing the site map, collecting the samples of blood etc. and also sending the body for the postmortem examination following the procedure and he carried out the inquest on the dead body. The samples containing the blood were sent to the State Forensic Science Laboratory (SFSL). He has stated that the statement of the witnesses namely Shib Kumar Jamatia, Papri Rani Jamatia, Sajala Laxmi Jamatia, Puspabala Jamatia, Asha Devi Jamatia, Sanjib Kumar Jamatia and Sibaji Debbarma were recorded on the very day when the complaint was lodged. After receiving all the reports when a strong prima facie case appeared before the investigating officer, he filed the charge-sheet. Having appreciated the evidence, it appears to us that entire prosecution case hinges on the testimony of the PW 3 or upon PW 4 inasmuch as the PW7 is clearly an hearsay witness who has claimed to have heard the occurrence from PW 3. Both PWs 3 and 4 never claimed in the trial that they saw the occurrence though the same claim was made by PW 1. However, they have made categorical statement that the appellant had hacked the deceased which caused the death of the deceased. But those testimonies cannot be accepted as substantive evidence inasmuch as Section 60 of the Evidence Act which primarily deals with the oral evidence, provides that oral evidence must in all cases whatsoever, be direct: i.e. to say if it refers to a fact which could be seen it must be the evidence of a witness who says he saw it that he has seen.

In Bhugdomal Gangaram & Ors. Vrs. State of Gujarat, reported in (1984) 1 SCC 319, the Apex Court has observed that in absence of such direct statement, the evidence becomes hearsay.

Having observed thus, we are of the view that the finding of conviction as returned by the impugned judgment cannot be sustained. Accordingly, the same is dismissed. As consequence thereof, the order of sentence must fall through and accordingly the same is set aside. The appellant be released forthwith if not wanted in any other case.

The appeal stands allowed. Send down the LCRs forthwith.