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Judgment
All these appeals, being Crl.A.(J) No.48 of 2016[Prantosh Das & Anr. v. State of Tripura], Crl.A.(J) No.60 of 2016[Abu Sayed Miah & Anr.
v. State of Tripura] and Crl.A.(J) No.61 of 2016[Jagadish Rabi Das alias Bhaiya v. State of Tripura], arise from the judgment and order dated
24.08.2016 delivered in Sessions Trial(Type-I) 86 of 2014 by the Additional Sessions Judge, West Tripura, Agartala, Court No.2.
By the said judgment, the appellants in Crl.A.(J) No.48 of 2016, namely Prantosh Das and Nihar Ranjan Roy alias Powder Raju, the appellants in
Crl.A.(J) No.60 of 2016, namely Abu Sayed Miah and Yasin Miah and the appellant in Crl.A.(J) No.61 of 2016, namely Jagadish Rabi Das alias
Bhaiya, have been convicted under Sections 120B, 302 read with Section 149 of the IPC. Each of them has been sentenced to suffer rigorous
imprisonment for life and to pay fine of Rs. 20,000/-, in default to suffer further SI for one year for their commission of offence punishable under
Section 302 read with Section 149 of the IPC. Further, each of the appellants, to reiterate, have been sentenced to suffer rigorous imprisonment
for life for their commission of offence punishable under Section 120B of the IPC. However, it has been observed that the sentences shall run
concurrently.
Genesis of the prosecution is rooted in the written ejahar(Exbt.1) filed by one Runu Dey(PW1) disclosing that on 09.11.2013 at about 10.30
pm he had received information that ""something had happened to Dilip Ghosh"". He had rushed to his house. On the way to the house of Dilip
Ghosh he got further information that Dilip Ghosh was lying on Ramnagar Road No.9. He then rushed to Ramnagar Road No.9 and found Dilip
Ghosh lying in the bleeding state in the drain on the right side of the road near the AMC office. One motor cycle was lying on the same side. There
was a big crowd. The police was also present there. He came to learn that one Arghya Deb(Abhi) of Ramnagar Road No.10 was the owner of
the motor bike. He further came to know that said Arghya Deb(Abhi) was driving the bike. He came to know from the local people who gathered
there that one moss-coloured Alto vehicle thrashed Dilip Ghosh, stabbed and fired shots. It has been disclosed in the said written ejahar that there
was a long-standing conflict between Abu Sayed Maih and Dilip Ghosh as regards, the tender of the AMC. He had expressed his apprehension
that, that may be the reason of killing Dilip Ghosh in the preplanned manner. After the occurrence, the said vehicle fled away.
Based on the said ejahar, West Agartala P.S. Case No.346 of 2013 was registered under Section 302/34 of the IPC and was taken up for
investigation. On completion of the investigation, the charge sheet was filed against the six persons out of the FIR named accused persons. One
Md. Basir Miah was not sent for trial as during the investigation no incriminating material could be gathered against him. Against the persons,
namely Abu Sayed Miah alias Sayed Miah, Dipak Miah, Jagadish Rabidas alais Bhaiya, Yasin Miah, Prantosh Das and Subrata Ghosh, the charge
was framed under Section 302 read with Section 149 of the IPC, but the accused persons refuted the charge and claimed to be tried.
It is to be mentioned here that since the case was exclusively triable by the court of the Sessions Judge, the police papers were committed to the
court of the Sessions Judge, West Tripura, Agartala, who in turn transferred the case to the court of the Additional Sessions Judge, Court No.3,
West Tripura, Agartala for trial in accordance with law before the charge was discussed. The said Court framed the charge.
An additional charge was framed against one of the appellants, namely Nihar Ranjan Roy under Section 302 read with Section 149 along with
Section 120B of the IPC. Against the said appellant, Nihar Ranjan Roy charge was also framed under Section 27(3) of the Arms Act. This
accused also denied the said charge claiming that he was totally innocent.
In order to substantiate the charge, the prosecution adduced as many as 40 witnesses including Arghya Deb(PW4) who was driving the motor
bike when Dilip Ghosh was attacked by the suspected assailants. It is an admitted position, other witnesses were not present at the time of the
occurrence but most of them rushed to the place of occurrence immediate after commission of the offence. Some of the witnesses had heard the
occurrence from Arghya Deb(PW4). Another set of witnesses has stated about animosity with the deceased person and the accused persons and
their collaborators. The prosecution has also introduced as many as 35 documents including 24 seizure lists, post-mortem examination
report(Exbt.12), inquest report(Exbt.9) and several other documents including the hand-sketch map in respect of the place of
occurrence(Exbts.27, 28, 29 and 30). After recording the evidence as adduced by the prosecution the accused persons were separately examined
under Section 313 of the CrPC. Thereafter, by the judgment dated 24.08.2016 the appellants were convicted for committing the murder, criminal
conspiracy and forming unlawful assembly. They have been sentenced as stated above.
On appreciation of the evidence, the trial court was of the view that minor irregularities has surfaced in respect of informing the occurrence to the
police. It has been further observed that PW4 did not support the prosecution case, though the prosecution had projected him as to the eyewitness
of the occurrence. But for his not supporting the prosecution case, according to the trial court, it would not demolish the basis of the prosecution
case. It has been observed by the trial court that the Public Prosecutor has submitted that primarily the case of the prosecution was based on sole
eyewitness who was present with the deceased at the time of occurrence. Presence of PW3, the wife of the deceased in the place of occurrence in
the aftermath was highly natural in the facts and circumstances of the case. Further, at the time of giving statement before the court she has admitted
that she did not disclose to the investigating officer that she was informed by PW4 details of the occurrence when she appeared in the place of
occurrence. However, she has stated that her husband was attacked by Abu Sayed, Dipak Miah, Yasin Miah, Mujibar Rahaman, Balaram
Rajbhar, Nihar Ranjan Roy alias Bhaiya, Subrata Ghosh and Prantosh Das.
It has appeared further that she was examined by the I.O. after the occurrence and considering her mental stress and agony, it was quite natural
that she might have omitted to make the descriptive statement to the investigating officer and omission to disclose such fact as stated above to the
investigating officer cannot be considered as material contradiction having regard to the fact and circumstances of the case. Moreover, her
presence in the place of occurrence soon after the occurrence has also been corroborated by PWs 1, 8, 9, 13 and 22. All the aforesaid witnesses
have also been stated that in the place of occurrence, they came to know from PW3 that PW4 had informed her that her husband was attacked by
Abu Sayed, Dipak Miah, Yasin Miah, Mujibar Rahaman, Balaram Rajbhar, Nihar Ranjan Roy alias Bhaiya, Subrata Ghosh and Prantosh Das.
Thus, the trial court has observed that the presence of PW4 at the time of occurrence and in the place of occurrence and the attack by the
assailants on Dilip Ghosh are admitted and not denied by the defence as surfaced from the cross-examination. It is therefore clear that soon after
the occurrence so many people, the police and the media persons were present there and PW4 had stated the fact how the occurrence had taken
place.
Out of the entire transaction, except PW4 none had witnessed how Dilip Ghosh was murdered but PW4 since did not support the prosecution
case, the prosecution suddenly went off hook. The prosecution, according to the trial court, in such a case, was required to establish whether the
accused persons were present and whether they shared a common object in launching murderous assault or not.
From the evidence of PW4, it is clearly established as noted by the trial court that on 09.11.2013 at about 9.00/9.30 pm, all the assailants came
there by a small car and motor bike with intention to kill Dilip Ghosh and they were more than two, and in furtherance of the common object they
fired shots and gave blows by kirich-which resulted in death of Dilip Ghosh.
The postmortem examination report as prepared by PW15 shows that due to the said assault Dilip Ghosh sustained several grievous injuries,
which were homicidal in nature and were ante-mortem caused by the sharp weapon. Subsequent recovery of kirich, empty cartridge and bullet
from the body of Dilip Ghosh have clearly supported, according to the trial court, the prosecution''s case.
So far the conduct of PW4 is concerned, the trial court though has relegated the same but from the evidence of PWs 1, 3, 7, 8, 9, 13, 14 and 15 it
has returned the finding that there was an unlawful assembly constituted by the accused with common intention to kill Dilip Ghosh. From the
records it has further appeared to us that the trial court has noted thus:
The evidence can lead us to no other conclusion but the guilt of accuseds namely Abu Sayed, Yachin Miah, Nihar Chandra Roy, Jagadish
Rabidas alias Bhaiya, Prantosh Das and others participated in the murder of Dilip Ghosh"".
Both the postmortem examination report and the inquest report have clearly corroborated the circumstantial evidence on material particulars,
particularly in respect of the bullet injury sustained by deceased Dilip Ghosh. The empty cartridge was seized and the bullet was found inside the
dead body. Thus, Dilip Ghosh''s getting shot has been supported by the version of PW4.
That apart, the trial court has figured out as many as 13 circumstances. If those circumstances are considered, according to the trial court, even
without any corroboration by PW4, the appellants can be convicted. For purpose of reference, the circumstances which have been figured out are
as follows:
(i) Dilip Ghosh and accused Abu Saed, Dipak Miah, Yasin Miah, Mujibar Rahaman, Balaram Rajbhar, Nihar Chandra Roy alias
Bhaiya, Subrata Ghosh and Prantosh Das had a good relation as they engaged in the same profession.
(ii) Their relation was broken down on a negotiation matter relating to a contract work at Agartala Municipality office at City Centre
prior to Durgapuja in the year 2013.
(iii) In culmination of which, Dilip Ghosh and Litan Das were attacked by the accused in the court premises and a case under Section
341/323 of the IPC was registered by PW23 against such incident and reference in this regard has been made by PWs 1, 3, 13, 22,
23 and 25,
(iv) Dilip Ghosh, Litan Das and Biswajit Chakraborty were again attacked by Abu Sayed, Dipak Miah, Yasin Miah, Mujibur
Raraman on the day of Sasthi Puja in the year 2013 at Ker Chowmuhani, Agartala as stated by PWs 1, 3, 13, 22, 23, 25 and 39.
(v) After hatching a conspiracy to murder Dilip Ghosh, the attack was carried out at Ramnagar Road No.9 on 09.11.2013 at
9.00/9.30 pm.
(vi) During investigation, I.O. recovered one empty cartridge, mobile, pocket diary of Dilip Ghosh, bloodstained earth, as sample
from the place of occurrence, one kirich and one motor bike[of PW4] from the place of occurrence as proved by PWs 7, 8, 9, 13
and 14.
(vii) From the inquest report of Dilip Ghosh as prepared by PW9 in presence of PWs 13 and 14, it has appeared that Dilip Ghosh
received some injuries in his head, forehead and elbows by sharp weapon.
(viii) From the post-mortem examination conducted by PW15 it has surfaced that the deceased received 10 injuries, ante- mortem in
nature and cause of death as inferred is due to head injury caused by the impact of hard and blunt force and firearm. Even the
deceased was fired a shot and the bullet was recovered from his body.
(ix) A vehicle bearing No.TR-01-P-0476 was recovered having brown colour soil inside the vehicle. The said vehicle was located by
PW35 but the matching of earth was not done by the investigating officer.
(x) After the occurrence, the said vehicle which was reported to have been involved in the said murder was recovered from a place
nearby the house of one of the appellants, namely Abu Sayed. Later on, it was found that the vehicle was owned by one Balaram
Rajbhar. This part of the evidence was corroborated by PW12 also.
(xi) One motor bike bearing No.TR-01-D-7777 owned by Nihar Ranjan Roy was also recovered from the place nearby the rented
house of Nihar Ranjan Roy. The said episode has been narrated by PWs 16, 17, 18, 19 and 20.
(xii) PW22 has stated in the trial that she found Abu Sayed was proceeding towards the place of occurrence by riding a motor bike
soon before the incident.
(xiii) All the accused were found absconding soon after the occurrence and as such abscondence had a close relation to the
occurrence or commission of murder. The trial court has further observed that since the individual episodes have formed the chain of
events showing the guilt of the appellants of having committed the offence as charged, based on those circumstantial evidence, the
finding of conviction deserves to be returned.
The trial court has observed that the court has competence to presume the existence of a fact which it thinks to have existed. Moreover,
abscondence of all the accused persons can be a vital piece of circumstantial evidence. But the charge for possessing the arms under Section 27 of
the Arms Act could not be proved, according to the trial court. Each episode has been, in the estimate of the trial court, has proved to the hilt and
hence the appellants were convicted as stated and they were sentenced for commission of the offence.
Mr. P.K. Biswas, learned senior counsel, assisted by Mr. P. Majumder, learned counsel has appeared in Crl.A.(J) No.48 of 2016, Mr. S.
Chakraborty, learned counsel has appeared in Crl.A.(J) No.60 of 2016 and Mr. S. Lodh, learned counsel has appeared in Crl.A.(J) No.61 of
2016 for the appellant/s.
The learned counsel appearing for the appellants have submitted that there is no legal evidence to convict the appellants. Conjecture or strong
suspicion has substituted the legal evidence. Even the inadmissible evidence, such as purported extra-judicial statements has been taken into
consideration. Moreover, the circumstances, as considered by the trial court have not been proved to the hilt for leading to a conclusion based on
which conviction can be returned. Having taken us to the testimony of PW4, in particular, learned senior counsel for the appellants have
emphatically stated that PW4 did not support the prosecution case inasmuch as he had clearly stated that he could not recognize the assailants,
even though he has admitted that the victim was returning home as pillion rider of his bike. He had informed the wife of Dilip Ghosh by using his
mobile phone. After about 4/5 minutes he returned to the place of occurrence and found Dilip Ghosh was lying dead in the drain. Thus was
observed by so many persons, who gathered there. He has reiterated in his examination-in-chief that he could not recognize none of the assailants.
Consequently, he was declared hostile by the prosecution and he was crossexamined. In the cross-examination, PW4 has clearly stated that the
deceased did not tell him anything about his profession but he has admitted that 15 days prior to the occurrence Dilip(the deceased), Abu Sayed
Miah and Dipak Miah went to his shop and they had informed him that their dispute has been settled amicably.
PW1, according to the learned counsel appearing for the appellants, who filed the written complaint about the occurrence on 09.11.2013 had
stated that PW4 fled away from the place of occurrence and out of fear he did not raise any alarm. When he reached to the place of occurrence he
found the police personnel led by the Dy. Superintendent of Police, Central. PW4 was also present there and he had informed him that the bike
was owned by him. PW4, according to PW1, told him the names of those persons, namely Abu Sayed Miah, Yasin Miah, Dipak Miah, Rajbhar,
Prantosh Das, Subrata Das, Mujibur brother of Abu Sayed and others, and accordingly he had filed the complaint.
Since PW4 has clearly denied to have recognized any assailant, mere flouting the names of some persons cannot help the prosecution case, and as
such the prosecution case has caved in, the moment PW4 had refused to support the prosecution case.
Mr. B.C. Das, learned Advocate General, assisted by Mr. A. Ghosh, learned counsel having appeared for the State has submitted that the
episodes of events as proved by the prosecution have formed a chain of proved circumstances by excluding the hypothesis of innocence of the
appellants. Mr. Das, learned Advocate General has contended that the charges have been proved by the circumstantial evidence and every
episode in the chain has been clearly established by the prosecution. The finding of the conviction is thus based on legal proof, not on mere
suspicion. Mr. Das, learned Advocate General has submitted that the presumption of fact is an inference as to the existence of one fact from the
existence of some other facts unless the substance of such inference is disproved. Presumption of fact is a rule of evidence that a fact otherwise
doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises
a process of reasoning and reaches a logical conclusion as the most probable position. The said principle has gained legislative recognition in
Section 114 of the Evidence Act. It thus empowers the court to presume the existence of any fact which the court thinks likely to have happened.
In that process, the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts having relevance to
the case. Thus, Mr. Das has supported the finding and observation returned by the trial court.
The trial court has observed as under:
Facts come before the court by way of oral testimony of witness and other documents. As human being is not free from certain error
moreover with different perception power of senses and different intellect i.e. analytical reasoning, mental status etc. Therefore, it is
not possible to lay down strict rule or straight jacket formula in appreciation of all contradictions and omissions. So every
contradiction or omission must therefore be judged by reference to various factors. Sometimes due to this very nature of human
intellect and perception of senses contradictions and omission occurs. Real and truthful eye witness may sometime make genuine
mistake in statement before police and court. At that time it must be remembered that contradictions and discrepancies are natural
and inevitable in the testimony of even truthful witnesses. A previous statement used to contradict a witness does not become a
substantive evidence & merely serves the purpose of throwing doubt on the veracity of the witness. if the Court finds that despite the
discrepancies, omissions and contradictions, the witness emerges as a truthful witness whose evidence has a ring of truth, the Court
can accept the testimonies of such a witness.
[Emphasis added]
Finally, the trial court has observed that the prosecution has succeeded in establishing the circumstances as formulated by the trial court.
Presumption is a course recognized by law for the court for presumption of fact as an inference as to the existence of one fact or the other in view
of the other facts as established by evidence, unless the fact as inferred is seriously rebutted by the person who is affected by such inference on
presumption. Presumption of a fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts.
When inferring, the existence of a fact from the other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion
as the most probable position. The above principle has gained legislative recognition in India in the form of Section 114 of the Evidence Act. It
empowers the court to presume the existence of any fact which it thinks likely to have happened or existed. Moreover, abscondence of all the
accused-persons can be a vital piece of circumstantial evidence, for linking them with the death of Dilip Ghosh. In that process, the court has also
presumed the course of natural events, vis-?-vis the conduct of the accused soon after the assault to draw the inference beyond doubt that the
accused were involved in the murder of Dilip Ghosh(the deceased) on 09.11.2013 at about 9.00/9.30 pm near the AMC garage at Ramnagar
Road No.9.
Mr. Biswas, learned senior counsel in rejoinder to the submission made by Mr. Das, learned senior counsel has relied on a decision of this
Court in Harilal Hrishi Das v. State of Tripura reported in (2013) 2 TLR 1000. In Harilal(supra) this Court had occasion to observe as under:
From the cumulus of unexplained ends as well as suspicious circumstances, it appears unsafe to rely on the evidence of PW7 for
returning the finding of the conviction against the appellant as his conduct does not instil any confidence in the court and the attempt of
the prosecution to establish the guilt of the appellant in commission of the offences of stealing ornaments has failed as the chain was
broken for non-examination of the rickshaw-puller namely, Pradip as this court did not find evidence of PW13 trustworthy for
embellishment to the extent that appellant has made an extra-judicial confession to him, but he did not disclose it to anyone[earlier
point of time]. The Law is now fairly settled. In Padala Veera Reddy v. State of Andhra Pradesh and Ors., 1989 Supp (2) SCC 706
whereby the Apex Court held the following test unless satisfied, no person can be convicted on the basis of circumstantial evidence:
(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.
In this regard, the decisions of the Apex Court in the similar line are many. A few amongst them are:
(1) Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343
(2) Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116
(3) State of U.P. v. Ashok Kr. Srivastava, (1992) 2 SCC 86
(4) Bodhraj v. State of J & K, (2002) 8 SCC 45
(5) Bharat v. State of M.P., (2003) 3 SCC 106
(6) Deepak Chandrakant Patil v. State of Maharashtra, (2006) 10 SCC 151
(7) State of Goa v. Sanjay Thakran, (2007) 3 SCC 755
The Apex Court sounded the caution that a great care must be taken in evaluating the circumstantial evidence and if the evidence
relied on is reasonably capable of two inferences or found susceptible to improbabilities, the one in favour of the accused must be
accepted. By the standard of the tests as referred, the piece of the circumstantial evidence has to be discarded. Moreover, the
evidence of PW7 falls in the wholly unreliable category inasmuch as the shrouding context has not been removed by cogent evidence.
The defence''s silence and denial substantially corroded the prosecution''s case. It could not be salvaged to succeed in a sustainable
conviction. The Apex Court in Lakshmi Singh and Ors. v. State of Bihar, (1976) 4 SCC 394 held:
It is well settled that it is not necessary for the defence to prove its case, and it is sufficient if the defence succeeds in throwing a
reasonable doubt on the prosecution case which is sufficient to enable the court to reject the prosecution version.
Further, reliance has been placed on Sk. Yusuf v. State of West Bengal reported in (2011) 11 SCC 754 for purpose of showing that mere
abscondence cannot give rise to draw an adverse inference against a person. In Sk. Yusuf(supra), the Apex Court has held thus:
Abscondence
Both the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse
inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he
may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the
doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment.[Vide
Matru v. State of U.P., (1971) 2 SCC 75, Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439 and Dara Singh v. Republic of India,
(2011) 2 SCC 490]. Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance
which gives rise to draw an adverse inference against him.
Mr. Biswas, learned senior counsel has also relied on Sunil Kundu & Anr. v. State of Jharkhand reported in (2013) 4 SCC 422 where the
Apex Court had occasion to observe as under:
It was argued that the accused were absconding and, therefore, adverse inference needs to be drawn against them. It is well settled that
absconding by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. (See Sk. Yusuf v. State
of West Bengal, (2011) 11 SCC 754). It is also true that the plea of alibi taken by the accused has failed. The defence witnesses examined by
them have been disbelieved. It was urged that adverse inference should be drawn from this. We reject this submission. When the prosecution is not
able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their
defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the
accused, if it has not proved its case beyond reasonable doubt.
[Emphasis added]
In the perspective of denial by PW4 to have recognized the assailants Mr. Biswas, learned senior counsel has relied on Javed Masood & Anr.
v. State of Rajasthan reported in (2010) 3 SCC 538 where the Apex Court has observed as under:
It is clear that the evidence of PW6 completely rules out the presence of Chuttu (PW5) at the scene of offence. It is thus clear that PW5 was
not speaking the truth, being an interested witness obviously made an attempt to implicate the appellant in the case due to previous enmity. Be it
noted that the entire prosecution case rests upon the parcha bayan (Ext. P-12) lodged by PW5. Once his presence is disbelieved, the whole case
of the prosecution collapses like a pack of cards. In addition, the evidence of PWs 18, 29 and 30 who are all independent witnesses, also cast a
serious shadow on the evidence of PWs 5, 13 and 14 as regards their presence at the scene of offence. It is under these circumstances, we find it
difficult and impossible to place any reliance whatsoever on the evidence of PW5 who is a highly interested and partisan witness. No reliance can
be placed on his evidence in order to convict the appellants of the charge under Section 302 IPC. For the same reasons, the evidence of PWs 13
and 14 also is to be discarded. None of them were speaking the truth.
[Emphasis added]
This court is constrained to observe that in the circumstances of this case the principle as culled out by the Apex Court in Javed
Masood(supra) cannot squarely be applied. However, the basic principle would apply as the tool of appreciating the evidence. On the face of such
submission it would be apposite for this court to make a cursory but substantive glance at the evidence as recorded during the trial.
PW1, Sri Runu Dey has stated that the deceased was the husband of his niece, Soma Ghosh. Around the day and time of occurrence having
found a gathering in front of the house of the deceased, he enquired about what had happened. He came to know that in front of the ""Municipal
garage"" at Road No.9 some occurrence had taken place. He immediately rushed to the place and found Dilip Ghosh lying in the Municipal drain
and he was bleeding profusely. PW4 informed him that these 3/4 persons by riding a motor bike came from the opposite direction. A small car
was driven in the same manner and they stopped in front of them. At that time, he lost his control and fell down, that moment they fired and gave
blow by knife. After seeing that incident Arghya(PW4) fled away from the place of occurrence. Even he did not raise any alarm. PW1 has stated
that PW4 had disclosed the names of the persons, viz. Abu Sayed, Yasin Miah, Dipak Miah, Rajbhar, Prantosh Das, Subrata Das, Mujibar,
brother of Abu Sayed. He has admitted that he filed the complaint in the police station. PW1 has clearly admitted that he did not disclose in the
complaint that he received the information as disclosed in the complaint, from PW4, Arghya Deb.
PW2, Sri Jayanta Bhattacharjee has not stated anything of importance.
PW3, Smt. Soma Ghosh, wife of the deceased has laid some material evidence which are relevant for purpose of determining the bad blood
between the accused persons and the deceased. She has stated, amongst others, that her husband was attacked by Abu Sayed, Dipak Miah,
Yasin Miah, Mujibar Rahaman, Balaram Rajbhar, Nihar Chandra Roy, Bhaiya, Subrata Ghosh and Prantosh Das. She has also stated that about
6/7 months prior to the occurrence, their relation was broken down relating to a contract work. Due to such bitterness, she believed the accused
persons attacked Dilip Ghosh in the court premises. She has also admitted in the line of the statement made by PW4 as stated earlier, that there
was one compromise struck out between the deceased and the accused persons.
The deposition of PW4 has already been substantively discussed and as such not repeated.
PW5, Sri Bahar Miah did not state anything to support the prosecution case. As a result, he was declared hostile and he was cross-examined by
the prosecution.
PW6, Sri Biswajit Chakraborty has denied to have witnessed the occurrence.
PW7, Sri Debasish Roy is seizure witness to the bloodstained earth(Exbt.MO1)
PW8, Sri Prasenjit Debnath has stated that he came to learn from PW4 that Dilip Ghosh was murdered by Abu Sayed Miah, Dipak Miah and
Yasin Miah. He has stated further that the names of the accused were divulged by PW4.
PW9, Sri Badal Deb only saw that Dilip Ghosh was lying in the drain. In the place of occurrence, wife of Dilip Ghosh(PW3) told him that Abu
Sayed, Balaram Rajbhar, Yasin Miah and Dipak Miah murdered the husband of PW3.
PW10, Sri Tapan Kumar Bhattacharjee is a seizure witness and he has stated nothing beyond the seizure.
PW11, Jahangir Miah has been declared hostile as he did not support his previous statement recorded under Section 161 of the CrPC by the
investigating officer.
PW12, Sri Kanai Das had identified the vehicle after its seizure and he has stated nothing beyond that.
PW13, Sri Sankar Das has stated that the deceased was his brother-in-law. He has stated that Soma Ghosh(PW3) informed him that she had
come to learn from PW4 that at the time of incident Abu Sayed, Yasin Miah, Dipak Miah, Balaram Rajbhar, Bhaiya and some others came to the
place of occurrence by a car and a motor bike and killed Dilip Ghosh. He has stated further that even though Arghya Deb(PW4) was present in
the gathering but he did not ask Arghya(PW4) to know about the occurrence. He is an eyewitness to the seizure of one bloodstained cloth by
preparing seizure list(Exbt.MO4 series). PW13 has declined to accept the proposition that there subsisted any dispute or he had knowledge of
such dispute. He was a witness to the Surathal procedure and in acknowledgment he had signed on the report(the inquest report) as prepared.
In the cross-examination, he has bluntly admitted as under:
It is also true that I have not stated to Darogababu that Soma was present in the place of occurrence on the night of incident. It is also true that on
the date of occurrence when I came to the P.O the police also note down all the facts which I stated today.
PW14, Sri Rajib Dey has clearly stated that-""From the P.O I came to know that the said motor bike was owned by one Arghya Deb @ Abhi. I
also found Arghya Deb in the place of occurrence and where from I came to learn that at the time of incident Arghya Deb was riding the said
motor bike and Dilip Ghosh was(sic.) accompanied him as pillion rider. At that time myself also asked Arghya about the said incident when he told
me that while he was proceeding along with Dilip at that time one Maruti Alto Car and two motor bikes came to the place of occurrence and also
dashed his motor bike as a result of which he lost control over it and fell down and at that time the said miscreants also attacked him and he some
how managed to escape from the place of occurrence.
In the cross-examination he has categorically stated as under:
When I asked Abhi about such incident he stated that he could not recognize the said miscreants. At that time my father was also present there
and when my father asked Arghya Deb about the incident at that time myself was present there.
PW15, Dr. Juthika Debbarma is the postmortem doctor. She has identified the postmortem report(Exbt.12) in the trial. She has stated clearly that
during postmortem examination she did not find any mark of blackening, tattooing and singeing surrounding the injury.
PW16, Sri Sukhen Ch. Roy was basically a seizure witness and he had identified his signature on the paper.
PW17, Sri Pradip Das was also a witness to the seizure of motor bike bearing No.TR-01-D-7777(Exbt.MO6).
In the cross-examination, PW17 has categorically stated that he had started from the police station with the officer in-charge of Ramnagar TOP on
the basis of the same GD entry towards the place of occurrence.
PW18, Sri Rajesh Dey, a Head Constable in the Traffic unit, was the witness while the said vehicle(bike) was seized from the place of occurrence.
PW19, Sri Nitya Gopal Saha, another Head Constable who was the witness to the seizure of the said vehicle bearing No.TR-01-D-7777. He has
stated nothing beyond all these things.
PW20, Sri Dipak Rudra Pal was a constable of police, attached to the Ramnagar TOP at the relevant point of time. He witnessed the seizure of
the screen report of the vehicle. He did not reveal anything beyond that.
PW21, Sri Kamal Chakraborty has stated that at the relevant point of time he was working as the SP(Traffic) and he collated the vehicle with its
identification indicators.
PW22, Smt. Anita Dey(Datta), a neighbour of the deceased has stated that the accused persons, namely Sayed Miah, Dipak Miah, Yasin Miah,
Balaram Rajbhar, Biman Das and Bhaiya were close friends of Dilip Ghosh. All of them were used to execute the contract work with Dilip Ghosh.
She has also stated that she came to know the said occurrence at the court premises first of all, from newspapers and subsequently when she
asked Soma Ghosh(PW3) and Dilip Ghosh, they also told her about the incident and more that Dilip Ghosh received some threat calls from Dipak
Miah and Abu Sayed Miah in respect of business transaction. He(Dilip) was also threatened by one Subrata Ghosh with dire consequences. She
did not state anything from her direct knowledge of the occurrence in which Dilip Ghosh was murdered. Moreover, she was examined on
16.06.2015 by the police and the magistrate, whereas the occurrence took place on 09.11.2013.
PW22 has clearly admitted in the cross-examination that she did not disclose any fact to the police out of fear but later on she had disclosed to the
police. She has stated that on the day of occurrence she found one person, seemed to be Abu Sayed, was riding the bike. She has denied the
suggestion made from the defence that she was tutored by the police to support the prosecution case.
PW23, Sri Litan Das is an acquaintance of the deceased. He has disclosed that he found Arghya was telling Mangal Chakraborty that on that night
Dipak Miah, Yasin Miah, Prantosh Das, Bhaiya, Balaram Rajbhar, Mujibur Rahaman came there by an Indica vehicle and the motor bikes.
Arghya fell to the gound with his motor bike and at that time, Dipak Miah fired towards Dilip and Yasin Miah gave blow by a rod. He even gave
blow to Arghya and as a result of which he fell down from his bike while he along with Dilip Ghosh was proceeding to the house of Dilip Ghosh. In
the cross-examination, PW23 has denied that he did not see Arghya Deb telling Mangal Chakraborty the names of the assailants on that night. He
was also confronted for making deviation from the statement as recorded under Section 161 of the CrPC.
PW24, Sri Pranab Mallik is a seizure witness and his signature was obtained in the seizure list(Exbt.17). It appears from his testimony that his bike
was also seized. But the police could not provide any reason for such seizure.
PW25, Sri Biswajit Chakraborty has stated that
There was a quarrel in between Dilip Ghosh and the accused persons namely, Abu Sayed, Yachin Miah, Dipak Miah, Mujibar Raham prior to
Durga Puja in the year 2013 at Agartala Municipality office at City Centre, Agartala regarding the contract works. After that incident in one
occasion they again attacked and assaulted Litan Das and Dilip Ghosh in the court premises, Agartala. I came to know about such incident later on
from Dilip Ghosh and Litan Das. Thereafter, on the day of Shasti, 2013, in the evening at about 7 p.m Mujibar Rahaman, Yachin, Abu Sayed,
Dipak Miah also restrained myself, Litan Das and Dilip Ghosh at Ker Chowmuhani and also assaulted Dilip Ghosh while we were proceeding
towards Durga Chowmuhani. That incident took place as Litan Das did not withdraw his case lodged against them in respect of incident of court
complex and Agartala Municipality office."" He went to the place of occurrence where he found many persons nearby the place of Dilip Ghosh was
lying injured. But he did not state anything in respect of the involvement of the accused person. His deposition is confined to the perspective fact of
enmity between the deceased and the accused persons.
In his cross-examination, he has succinctly stated as follows:
It is not a fact that on 9.11.13 at about 10 p.m Arghya Deb did not inform me over phone that Dilip Ghosh was murdered by Dipak Miah and
Yasin Miah or Dipak Miah fired at Dilip Ghosh and Yasin Miah and Abu Sayed gave blow to the victim Dilip Ghosh. It is not a fact that he did not
tell me that he took shelter in the neighboring house or that he called me to go to the place of occurrence.
PW26, Sri Mahesh Debnath did not disclose anything of material importance and he is a formal seizure witness of the vehicle bearing No.TR-01-
P-0476, one knife, one empty thumps-up bottle, one wheel rance and soil.
PW27, Sri Arunendu Deb, a resident of Ramnagar Road No.10 has stated that PW4 is his son. On 09.11.2013 at 1.30 am his son(PW4)
informed him over phone that Dilip Ghosh was attacked at Ramnagar Road No.9. Accordingly, he had informed the officer in-charge of Ramnagar
Outpost over phone stating that an incident had taken place at Ramnagar road No.9. He has revealed nothing more which is relevant for trial.
PW27 has further stated that his son could not identify the miscreants as their face was covered.
PW28, Sri Mantu Saha has submitted that the deceased was murdered at a distance of 8-10 houses from his shop. He did not witness anything.
PW28 has been declared hostile.
PW29, Sri Sailen Chakraborty alias Krishna, a businessman has stated that he came to learn about the occurrence when he was at his shop. He
was the witness to the seizure of the motorbike. He has identified the seizure list(Exbt.17) in the trial. Since he did not support the prosecution
case, he was declared hostile and during the cross-examination, nothing material could be extracted out of him.
PW30, Sri Ashim Kr. Saha, who is a businessman was also the witness to the seizure of the motorbike(Exbt.17).
PW31, Sri Suman Kumar Chakraborty, a forensic scientist has stated in the trial that there was no poison in the Exhibits sent for the forensic
chemical examination by the police.
PW32, Dr. Sabyasachi Nath, another forensic scientist has stated that on examination of the Exhibits D, D-1, E, F, G, H, K, blood or bloodstain
of human origin could be detected in the Exhibits marked as ''D'' and ''D-1''. Blood group of the exhibits marked as D-1 could be determined as
''A'' group but the group of exhibits marked as ''D'' could not be determined. Bloodstain could be detected in the Exhibits marked as E and G, but
their origin and group could not be determined. No bloodstain could be detected in the Exhibits marked as F, H and K. There was no cross-
examination from the accused person.
PW33, Md. Jalal Uddin, a constable, working in the Ramnagar Outpost, was the witness to the seizure and he identified his signature on the
seizure list(Exbt.8).
PW34, Sri Jiban Chakraborty, a driver attached to the Assistant Engineer, Chinmoy Chakraborty and Babu Basfore, has stated that when Dilip
Ghosh was murdered he was not present at his home though the place of occurrence is very close to his home. For making such statement he was
declared hostile and crossexamination was carried out.
PW35, Dr. Ajitesh Pal, another forensic expert from the State Forensic Science Laboratory(SFSL), Narsinghar has stated that he took some
photograph of the scene of crime as well as the vehicle No.TR-01-P-0476 by a digital camera. He has submitted that after examining the seized
pistol and magazine(Exbt.B1 and Exbt.B2) along with one fired cartridge he came to the conclusion that it was not possible to fire B1, B2 and C
through Exhibit A. During his cross-examination he did not alter or resile from any part of his statement.
PW36, Sri Bijoy Das is a constable of Ramnagar TOP. He had escorted the dead body of Dilip Ghosh from the place of occurrence to the GBP
hospital morgue and guarded the same till the conclusion of the postmortem examination.
PW37, Sri Biplab Sukladas, another police constable took the screen report of the vehicle bearing No.TR-01-P-0476 as an attempt to identify
the vehicle(Exbt.8/3).
PW38, Sri Pranab Deb has categorically stated that many persons gathered in that place of occurrence including the police personnel and media
persons but he did not find any family member of Dilip Ghosh. He was declared hostile and crossexamined. But nothing material could be
extracted from him.
PW39, Ruhul Alam was the officer in-charge of Ramangar TOP at the relevant point of time. He on receiving of the information of the said
occurrence made the GD Entry vide No.205 dated 09.11.2013 and thereafter he rushed to the place of occurrence to verify what actually
happened there being accompanied by the other police personnel. In the place of occurrence itself, he had conducted the Surathal (the inquest
procedure) and sent the dead body to the GBP Hospital morgue by preparing a dead body challan. He also prepared the hand-sketch map. From
the source, he came to know that Mujibar Rahaman, Abu Sayed, Dipak Miah, Yasin Miah and their associates were involved in the said murder.
Thereafter, on that night at about 0020 hours he went to Ker Chowmuhani in the house of Mujibar Rahaman and raided the house of Mujibar
Rahaman but he was absconding. He has given an elaborate description how he proceeded with the investigation, seized the materials and
recorded the statement of the witnesses and apprehended the accused persons. The vehicle by aid of which, the offence was committed was not
initially found but later on it was discovered and seized from Rajnagar, Agartala. PW39 had seized the bloodstained earth from the place of
occurrence. In the deposition PW39 has provided a narrative how he had conducted the investigation by way of recording the statements of the
witnesses and seizure of the materials.
In the cross-examination, he has stated that on 17.01.2014 he had made a prayer before the learned court for issuing proclamation and attachment
against the accused persons, namely Abu Sayed, Dipak Miah, Yasin Miah, Mujibur Rahaman and Balaram Rajbhar as they were absconding to
evade police arrest. PW39 has placed on record how he seized the material marked as Exbt.A, etc. PW39 continued the investigation and filed
the charge sheet against the accused person after collection of the evidence against the accused persons. PW39, the investigating officer, during his
cross-examination has clearly stated:
I did not mention in the seizure list dt. 10.11.13 in respect of colour of the vehicle bearing No.TR-01B- 0476. I also did not mention the chassis
number and Enginre number of the said vehicle. I did not mention in the seizure list as to whether the vehicle was under lock and key or not. I also
did not mention in the seizure list(Ext.2 and Ext.3) whether I have recovered those articles from the vehicle after breaking the lock of the vehicle or
not.
He has denied that there was no seizure in the house of Mahesh Debnath at Rajnagar. But he has denied that he did not examine Biswajat
Chakraborty, Prasenjit Debnath, Badal Deb, Rajib Dey and Soma Ghosh. During the elaborate cross-examination, the witnesses did say clearly
that the assailants were only witnessed by PW4.
PW40, Sri Milan Chandra Datta, an Inspector of Police at the relevant point of time, posted at West Agartala Police Station as the Officer In-
charge, has stated that he received an information from an un-known person that one person received bullet injury and lying at Ramnagar Road
No.9. He had after entering the said information in G.D., proceeded towards the place of occurrence. On 08.05.2014, he took up the
investigation from the previous investigating officer, namely Ruhul Alam, PW39 and he had completed the remaining part of the investigation to file
supplementary charge sheet against the accused persons under Section 120B/307 of the IPC and Section 27 of the Arms Act. He has clearly
admitted that during the period from 18.08.2014 to 14.06.2015 he did not record any statement of any person, to be cited as the witnesses in the
final police report.
Having appreciated the testimonies and the documents as referred to us, the said finding of conviction has been returned by the trial court
against the appellants and hence the judgment of conviction has been challenged by the appeals. The relevant parts of their testimonies have been
briefly assessed for purpose of examining the validity of the finding of conviction.
On scrutiny of the records what has surfaced that the circumstantial evidence as regards the place of occurrence and the murder of Dilip Ghosh
have been succinctly established by the prosecution. Even though, initially PW4 was projected as the eyewitness, inasmuch as Dilip Ghosh was on
his pillion but for his turnaround, the statements of the witnesses as regards the identity of the assailants have become inadmissible having been hit
by the heresay rule alone. PW4 has categorically stated that he could not identify the assailants. There are some evidence about the previous
animosity between the deceased and the appellants but a clinching evidence has surfaced that the dispute between them over the business
transaction was amicably settled.
The episodes which were primarily relied for purpose of returning the finding of conviction are:
(i) the murder of Dilip Ghosh at the place of occurrence as revealed in the FIR,
(ii) the forensic evidence about the cause of death,
(iii) the abscondence of the suspects from their respective place of residence,
(iv) presence of blood in the seized vehicle, but by omission that was not matched with the blood of the deceased, and
(iv) the previous animosity between the deceased and the appellants.
So far as the murder and the place of occurrence are concerned, the prosecution has established these two episodes, but in absence of any
eyewitness the identity of the assailants has not been established conforming to the standard. The other circumstantial pieces are not adequate to
come to an inference that the appellants and none else had murdered Dilip Ghosh for previous animosity. Even if, the circumstances as primarily
relied by the prosecution are accepted, then also a prudent person cannot come to an inference that Dilip Ghosh was murdered by the appellants.
We are to agree with the submission made by the learned counsel for the appellants that there is no legal evidence against the appellants and
however strong suspicion may be, that cannot substitute the legal evidence.
We have no hesitation to hold that the evidence led by the prosecution has failed to form a chain of episodes, established by adequate evidence, by
clearly excluding the hypothesis of innocence against the appellants. No legal evidence but hearsay was relied for return the finding of conviction.
As stated, the adscondence cannot be a substantive evidence to return the finding of conviction against the appellants. Therefore, the prosecution
case has fall through as they have failed to prove the charge beyond reasonable doubt. The benefits therefore should go to the appellants.
Having held so, the appellants are acquitted from the charge on benefit of doubt. They shall be set at liberty forthwith, unless are wanted in any
other case.
In the result, the appeals are allowed.
Send down the LCRs.