Sri Bapan Biswas, & Antr. vs The State of Tripura.

This criminal appeal is directed against the judgment dated 22-12- 2. 012 convicting the appellants U/s 304(II) IPC and sentencing them to undergo rigorous imprisonment for 7 years with a fine of ''5,000/- and to suffer another simple imprisonment for one month in default of the fine.

The case of the prosecution is that the accused/appellants and the deceased were well-known to each other and used to work together as mason for construction of building under contractors. On 25-10-2009 at about 9 AM, the deceased (Ramprasad) along with the appellants had gone out for works towards Drop Gate, Police Line under Amtali PS, Agartala, but he did not return home. This prompted member of his family to look for him in and around the areas visisted by him and also inquired from the appellants his whereabouts. They also telephoned the houses of his relatives. But the search did not yield any result. On 26-10-2009, one Narendra Sarkar, Nb.. Subedar I/C Waximalam 10th Bn. TSR Camp informed Teliamura PS over telephone that the body of an unknown male was found lying near railway tract at Dukhai Jamadar Para about one and half kilometre North East of the Camp and requested them to come over. The information was thereafter entered at Teliamura PS GDE No.1063 whereafter SI Benlal Sarkar and ASI Rupendra Debbarma proceeded to the place of occurrence (PO). Inquest report was prepared at the PO by the ASI and the dead body was sent to the Teliamura Rural Hospital morgue for post mortem examination. Photographs of the dead was published in all leading dailies for identification of the dead body and ultimately, it was identified by his brother, Sri Dulal Dutta of Gourgobinda Asram Para at Teliamura P.S. He then submitted a written ejahar, which was ultimately registered as Teliamura P.S. Case No.77 of 2009 on 29-10-2009 U/s 3. 02/34 IPC. The case endorsed to SI Manik Deb of Teliamura PS for investigation. After investigating the case, it was revealed that the mobile phone belonging to the deceased was seized on production by the said Dulal Dutta and the mobile phone contained some video footage in respect of the travelling made by the deceased along with the appellants on the date of his disappearance at noon and that the mobile was subsequently placed in the hut of the deceased by the appellant Kamal Roy (A-2) on 26-8-2009 at about 6 AM; he was seen by some of the witnesses of that house at that time. Subsequently on that date, the appellant No.1 Bapan (A-1) telephoned through that mobile and enquired whether Ramprasad returned or not to confirm the death of the deceased. On searching the mobile, the inmates of that house discovered the video footings of the journey undertaken by the deceased with the appellants by a train on the date of the disappearance of the deceased. The IO also seized the wearing apparels of the deceased which included cash amounting to ''176/-, 8 sticks of bidis and small quantities of ganja (cannabis). He also arrested the appellants on 29-10- 2009. The IO arranged for video analysis and for keeping the date of the video footage in the CD by one computer analyst. He also collected post mortem report; the death was opined by the autopsy doctor to be caused by head injury. Having come to the prima facie conclusion in the course of investigation that the deceased was pushed out of a running train by the appellants with an intention to cause death to him, the IO of the case submitted the charge sheet against them U/s 302/34 IPC to stand the trial.

On receipt of the charge sheet, the learned Sessions Judge, Khowai, on commitment made over the file to the learned Additional Sessions Judge, Khowai to try the case. The learned additional Sessions Judge framed the charge against the appellants U/s 302/34 IPC, to which they pleaded not guilty. To substantiate the charge against the appellants, the prosecution examined 18 witnesses and exhibited some 17 documents and material objects. The case of the appellants is that of total denial and did not adduce any evidence. At the conclusion of the trial, the trial court found them guilty of the charge and by the impugned judgment convicted both the appellants U/s 304 Part (II) and sentenced them to rigorous imprisonment for seven years with a fine of ''5,000/- each and to suffer another simple imprisonment for one month in default of the payment of fine by them. Aggrieved by the impugned judgment of conviction and sentence, this appeal is now preferred by the appellants. The learned Additional Sessions Judge recorded the following findings: ''20. In the light of evidence so far discussed, it is clearly proved from the evidence of PW-2 to PW-6, who had no enmity with the accused persons that on 25-10-09 in the morning at about 9-9-30 AM, the accused Kamal had come in the house of the deceased Ramprasad and they all at a time went for works and on 26-10-2009 also accused Kamal came to the house of the deceased and went inside the hut of the deceased and his presence in that house was not considered to be suspicious at that relevant time. It is also proved from their evidence that on 26-10-2009, the mobile phone, which the Ramprasad had taken with him before going to works with the accused persons, was recovered from his hut just after half an hour from visiting from visiting the hut of deceased by the accused Kamal and the said mobile contained clippings regarding the travel of the deceased with the accused persons by train on the date of his missing after 12 hours. It is also proved from the evidence of PW 11 that on 26-10-09, the dead body of the deceased was recovered and other TSR personal accompanying him on duty on near Tingharia railway track. It is also proved from the evidence of PW-2 to PW-4 and PW-6 that the accused persons had concealed the fact of their train journey with Ramprasad. Though mens rea for the offence was not transpired in the evidnce, but the circumstances of this case clearly suggest that the accused persons only respondislbe for the death of the deceased. 21. In the prosecution evidence no circumstance appears how the deceased Ramprasad had fallen from the train. From the evidence of PW-3, it revealed that the accused Bapan made exculpatory statements to PW-3 and others that it was Kamal who dashed the victim from the running train. He did not implicate himself and such exculpatory confessional statements cannot be used as against another accused. So, that portion of evidence cannot be relied upon. But it is clear that they had concealed the falling of the deceased from the train. The journey of the deceased by train along with accused persons by train and subsequent recovery of the dead body by the side of railway track at Tingharia clearly suggests the fact that the accused person either had killed the deceased and dashed him down or they quarrelled inside the train and suddenly the deceased might have fallen from the train and out of fear the accused persons might have concealed those facts. But it is clear that the accused had contributed their action in the death of deceased Ramprasad. The PM report also suggests that death of the deceased was caused due to cardio respiratory failure as a result of head injury. The circumstances as a relevant facts as proved in this case clearly support culpable homicide not amounting to murder within the meaning of Section 304 Part-II of IPC. Based on the circumstance as proved I have no doubt to find that the prosecution evidence is able to prove a chain of circumstances which give inference of guilt of the accused persons for an offence punishable under Section 304 of the Indian Penal Code (Part II). Accordingly, I convict both the accused Bapan Biswas and Kamal Roy under Section 304 of the India Penal Code."

. Attacking the finding of the trial Court, Mr. R. Dutta, the learned counsel for the appellants, submits that it should have held that the presence of the appellants at the place of occurrence, of their participation in the commission of crime, are absolutely doubtful; they could not have convicted on the basis of such evidence and the improved version of the prosecution witnesses. He further contends that though PWs-2, 3, 4, 5, 6, 7 and 8 have stated that while searching the mobile, they came across the video clips of the train journey of the deceased with the appellants, no such evidence is exhibited by the prosecution. According to the learned counsel for the appellants, PWs-2, 3, 4, 5, 6 and 7 are the relative witnesses of the deceased and therefore, such witnesses usually deposed with emotion due to love and affection for their dead relative thereby raising every possibility that they would favourably deposed in the deceased. He also maintains that the autopsy doctor (PW-16) could not make out whether the death of the deceased was homicidal or suicidal or accidental death; in the absence of such clear cut finding, the case of the prosecution falls to the ground and cannot, therefore, be relied on to convict the appellants. He finally submits that there is no clinching circumstantial evidence to bring home the charge against the appellants; their convictions and sentences cannot stand and is, therefore, liable to be set aside.

. Defending the impugned convictions and sentences, Mr. R C Debnath, the learned Additional Public Prosecutor appearing for the State, submits that there are three circumstances which have been proved beyond reasonable doubt convicting the appellants, namely, (i) There were dispute between the deceased parties and the appellants over money transactions;

(ii) The deceased was last seen together with the appellants before recovery of his dead body;

(iii) one of the appellants, namely, Kamal Roy (A-2) went to the house of the deceased after 26-10-2009, inquired about the deceased and kept there the mobile of the deceased. According to the learned APP, these three circumstances have been proved and have unerringly point to their guilt. He, therefore, maintains that there is absolutely no infirmity in the impugned judgment of conviction and sentence, which are not liable to be interfered with.

. It is a well-settled proposition of law without reference to cases that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The first circumstance harped upon by the learned APP is that the appellants were last seen together with the deceased. The law is equally settled that the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the instant case, PW-3, who is the eldest in the family of the deceased, deposed that the deceased was murdered on 25-8-2009 and used to deal with flying business and in addition, he used to perform as labourer attached to mason before his murder; that the day when he was murdered, he was taken from their house by the appellants and that after he went out, he did not return and his body was recovered on 28-8-2009. However, in his cross-examination, he admitted that he did not see the appellants taking away the deceased from his house for works. He also admitted that he did not mention anything about A-2 pushing the deceased out of a running train. PW-4 is the brother-in-law of the deceased and testified that on 25-10-09, the appellants went to their house at about 9/9-30 PM and took him for going to work. He further deposed that the deceased usually dealt with the business of toys, but he also sometimes worked as labourer and the fateful day, the deceased went out with the appellants for work at Drop Gate as labourer and did not return home thereafter. PW-7 is also the brother of the deceased and testified in cross that he admitted that there is no statement made by him before the police that he searched the mobile and found video clipping and saw therein a video clipping showing train journey by the deceased, the appellants on the very date on which he was found missing i.e. on 25-10-09 after 12 hours.

The question to be determined is whether there is clinching evidence to show that the appellants and the deceased were seen together on 25-10- 2009. From the depositions referred to above, it is difficult to say with definiteness that the deceased was last seen with the appellants on 25-10- 2009. In the first place, PW-2 did not say anything about the deceased taken out by the appellants on 25-10-09. PW-3 did not say in his deposition as to the time when he was taken out by the appellants on 25-8-2009. On the other hand, PW-4 deposed that on 25-10-2009 at 9/9.30 PM, the appellant went to their house and took the deceased for the purpose of going for works. Apparently, he does not know the exact date and time when the deceased was allegedly taken out by the appellants. Was it on 25- 10-2009 or 25-8-2009 when he was taken out? No answer is forthcoming. At least, the trial court ought to have sought clarification on this discrepancy from PW-3 even if the prosecution counsel did not do so. PW-5, mother of the deceased, testified that on 25-10-09, her son Ramprasad had gone out for work as labourer with the appellants to Drop Gate, Milan Sangha and that the appellants took him from their house and did not return thereafter. Again, PW-5 is not even sure of the month when the appellants were alleged to have taken the deceased out from their house. Anyway, let us assume for the time being that the deceased was taken out by the appellants from his house on 25-10-2009, there is no satisfactory evidence as to when he was actually taken out. PW-3 disclosed in his crossexamination that he did not actually see the deceased taken out by the appellants for works. PW-4, on the other hand, deposed that the deceased was taken out by the appellants on 25-10-2009 at 9/9.30 PM i.e. in the night; he happens to be the only one witness who testified about the time the deceased was allegedly taken out by the deceased on 25-10-2009. However, it is incomprehensible to us as to how he could have been taken out for works in the night. There is no evidence to show that they were working in the construction site at night. The second question to be considered now is at what time when the deceased was murdered? PW-3 testified that the deceased was murdered on 25-8-2009. But the evidence of other witnesses is that the incident took place on 25th October, 2009 whereas this witness stated it to occur 25th August, 2009. The autopsy doctor in his evidence deposed that he conducted the post mortem examination of the dead body of the deceased on 29-10-2009 and that it was impossible to say as to the time of death of the deceased since the body was decomposed. He also testified that he could not say whether the death was homicidal or suicidal or accidental.

As already noticed, the last-seen theory comes into play where the time-gap between the point of time the accused and the deceased were last seen alive and when the deceased was found death is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. In the instant case, there is satisfactory evidence to hold that the deceased was actually taken out from his house by the appellants. There is also no sufficient evidence to establish the time of death of the deceased; his body was recovered on 26-10-2009 at about 6 AM by N/K Narendra Sarkar, TSR, who was examined as PW-11. In the absence of credible evidence to show the time when the deceased was taken out from his house on 25-10-2009 (was it 9/9.30 PM or 9/9.30 AM) by the appellants, it cannot be said with certainly that this is a case where the time gap between the point of time when the deceased was last seen with the appellants and the deceased is found dead is so small that the possibility of some other person other than the appellants being the author of the crime becomes impossible. In any case, the circumstance of last-seen together does not by itself and necessarily leads to the inference that it was the appellants who committed the crime. There must be something more establishing connectivity between the appellants and the crime. A theory of the deceased seen together with the appellants in a train on that day is floated by some of the prosecution witnesses, but there is absolutely no evidence to prove this. Therefore, the first circumstance that the appellants were last seen with the deceased from which an inference of guilt or a link in chain of circumstances from which an inference of guilt is sought to be established has crumbled to the ground

The second circumstance relied on by the prosecution is the existence of dispute between the appellants and the deceased over money transaction. Except for what has been vaguely stated in the FIR, no prosecution witness made any whisper of statement about such dispute, much less, the amount involved and under what circumstance the dispute happened to crop up between the parties. In the absence of any evidence to show that such a dispute existed between the deceased and the appellants prior to his disappearance, there is no such circumstance of a definite tendency to unerringly pointing towards the involvement of the death of the deceased. Coming now to the third circumstance, namely, A-2 had gone to the house of the deceased on 26-8-2009 at about 6 AM and kept the mobile of the deceased. PW-3 deposed that the day the deceased went out, he took his (PW-3''s) mobile set Nokia-50 putting his own Airtel SIM and that on 26- 8-09, A-2 at about 6 AM brought that mobile in their house, which was seen by his son, namely, Sanjoy Dutta, who received the same. PW-4 testified that on the following day (i.e. of Sunday) at about 7 AM, A-2 went to their house and entered the hut of the deceased by opening from inside, which he saw as he was standing in the verandah of his house, which is situated in the northern viti and that A-2 used to visit the hut of the deceased regularly and used to take bidi in their house. PW-5 deposed that next day (after 25-10-2009) in the morning, while he was cutting vegetables, he found A-2 visiting their house and opening the door of the hut of the deceased from outside by inserting his hand inside the hut. Now, even assuming that A-2 did visit the hut of the deceased on the following morning of 25-10-2009 also, we are at a loss to understand as to how this can form a link in the chain of circumstances pointing to the guilt of the appellants. Moreover, there is no evidence that there was a video clipping of the deceased travelling with the appellants in a running train. In the instant case, there is no apparent motive for the appellants to murder the deceased. True, proof of motive by the prosecution is not necessary to bring home the guilt of the appellants, but then it can be considered as a circumstance which is relevant for assessing the evidence if the evidence is not clear and unambiguous.

The instant case is one where the circumstances from which the inference of guilt is sought to be drawn by the prosecution are not cogently and firmly established; the circumstances relied on by the prosecution are not of definite tendency unerringly pointing towards the guilt of the appellants; there are no circumstances, when taken cumulatively, which can form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else; (iv) there is no circumstantial evidence so complete and incapable of explanation of any other hypothesis than that of the guilt of the appellants or there is evidence which is consistent with the guilt of the appellants or conversely, there is no evidence inconsistent with their innocence. No other circumstance is relied on by the prosecution to establish the guilt of the appellants. In the view that we have taken, we find it difficult to sustain the conviction.

Consequently, this appeal succeeds. The impugned judgment of conviction and sentence stands set aside. The appellants are set at liberty forthwith unless they are required in connection with some other case. Transmit the L.C. record.