State Of Tripura vs Becharam Debnath

In this criminal appeal under Section 378 CrPC, the State-appellant is questioning the legality of the judgment dated 28-11-2014 passed by the learned Sessions Judge, Gomati District, Udaipur acquitting the appellant of the charge under Section 302 read with Section 34 IPC.

The case of the prosecution is that on 2-2-2010 at about 9 PM, the accused-respondent (Becharam Debnath) informed the complainant (Smt. Mamata Majumdar) that her husband (Dilip Majumdar) was assaulted by some persons with deadly weapon and was found lying in the veranda of the house of the respondent with bleeding injury. The complainant thereafter rushed to the house of the respondent and saw her husband indeed lying with serious injuries. Her husband was immediately shifted to TSD Hospital, but had to be shifted to GBP Hospital on reference. The FIR was filed by the complainant when her husband was under treatment at GBP Hospital. The husband of the complainant ultimately succumbed to his injuries at his house after about a month after he was discharged from the hospital. After the investigation was completed, the police charge-sheeted the respondent under Section 302 IPC to face the trial. On commitment, the learned Sessions Judge framed the charge against the respondent U/s 302/34 IPC, to which the respondent pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined 15 witnesses and exhibited five documents to prove its case. Though the respondent did not adduce any evidence, his case is that of total denial to the charge. As already noted, at the conclusion of the trial, the trial court acquitted the respondent. Being aggrieved by this acquittal, the appeal has been preferred by the State.

The trial court recorded the finding that there is not sufficient evidence to bring home the charge against the respondent. The substance of the findings of the trial court is as follows:

"The extra-judicial confession made by the accused lost its credence as because it was made in the presence of the police. The dog tracking evidence is not applied in this case to determine the guilt of the accused. Therefore, on analyzing the evidence on record, it is viewed that the accused person was not involved in the commission of the offence of murder. He did not take part in causing assault on Dilip Majumdar which ultimately caused his death after more than one month. The victim did not say anything within this period. No dying declaration recorded. Thus, Point No.1 is decided against the prosecution.

In order to constitute the offence under Section 302 IPC, the prosecution is to establish death of human being and the death was caused by the accused by assaulting him with intention to cause his death. In the instant case, there is no such evidence to establish that accused Becharam Debnath assaulted Dilip Majumdar by deadly weapon and caused his death with the knowledge that such injury might have been (sic) caused his death. Thus, point No.2 is also decided against the prosecution.

In view of my above findings and decision over 2 points, it is established that accused Becharam Debnath is not involved in commission of offence punishable under Section 302 read with Section 34 IPC. Hence, the accused person is acquitted from the charge labelled against him and set at liberty. His surety stands discharged."

After perusing the evidence on record in the above findings in juxtaposition, we have time and again asked the learned Public Prosecutor to point out any infirmity in the impugned judgment, but he is unable to do so. We cannot but observe that the deceased was alive for about a month after the incident, yet, the IO of the case did not bother to record his statement, which could have eventually been used as dying declaration after his death. As rightly held by the trial court, the extra-judicial confession made by the respondent has lost its credence as because it was made in the presence of the police. PW-9 deposed that on the next day, when he had gone to the house of the respondent, he saw there the police with their dog, which jumped at the respondent again and again whereafter he made the confession that he had assaulted Dilip, cut him down by axe and that the police thereafter arrested him and sized one axe, betel nut cutter and one black jacket. It is thus obvious that such confessional statement made in the presence of the police is hit by Section 25 of the Evidence Act. Moreover, what prevented the police from recording the statement of the deceased when he was alive for one long month, more so, when it is not the case of the prosecution that the deceased was incapable of making a statement while he was alive. In our judgment, the view taken by the trial court in acquitting the respondent cannot be faulted with in any manner.

For the stated in the foregoing, there is no merit in this appeal, which is hereby dismissed.