Tun Tun Dass vs State

S. Ravindra Bhat, J.—This appeal is against the order of the learned Addl. Sessions Judge dated 28.02.2011 in SC No. 11/2010. The appellant Tun Tun Dass was convicted for committing the murder of his sister Suman @ Seema on the night intervening 4/5.12.2009. Briefly, the prosecution alleged before the Trial Court that information was received in the early hours of the morning by PS Uttam Nagar about a stabbing incident. The appellant's name was given in the intimation, it was produced as Ex. PW-1/A, the PCR form. This was at 3.20 A.M. The concerned police man went to the spot and recorded the statement of the informant PW-10; the same formed the basis of the FIR. The statement of PW-10(Ex. PW-10/A) alleged that in the early hours of the morning, she was woken up by her niece Kajal, a young girl of five years, who told her that her mother was vomiting. PW-10, the sister of the deceased came downstairs and saw that her sister was lying in a poof of Wood. She also saw that the appellant (her brother) who used to reside in the same premises was in "perplexed" condition. According to PW-10, the appellant was perspiring had blood stains on his shirt and on seeing her, ran away. The statement of PW-10 (Ex. PW-10/A) was recorded at 7.00 A.M.; subsequently, an FIR was lodged.

After the conclusion of investigation, (during the course of which the appellant was arrested on 04.01.2010) Tun Tun Das was charged for committing the offence punishable u/s 302 IPC. He pleaded not guilty and claimed the trial. The prosecution relied on the testimony of 25 witnesses and several other exhibits including post-mortem report as well as the recovery/ seizure memo. After considering this, the Trial Court convicted the appellant and sentenced him to undergo life imprisonment with direction to pay fine.

Ms. Sahila Lamba, the learned counsel for the appellant urges that the conviction recorded by the Trial Court in this case is extremely tenuous and was passed on flimsy grounds. She argued that the conduct of PW-10''s niece (the daughter of the deceased) in waking her (PW-10) up is abnormal unnatural. It was also argued that Kajal, the deceased's daughter was not even examined; her statement even u/s 161 Cr.P.C. was not recorded during investigation. This constituted a serious infirmity in the prosecution's case. Being the first witness to actually see the deceased, her version was vital. The conviction, based solely on the testimony of PW-10 ought not to be sustained. According to the learned counsel, the prosecution could not conclusively prove that the appellant was responsible for the crime, and the only evidence led by the prosecution in the form of the deposition of PW-10 failed to incriminate the appellant.

It was further urged that the prosecution was unable to prove motive in this case and in replies to queries put by the Court in the course of his examination u/s 313 Cr.P.C., Tun Tun Das has stated that, four intruders had attacked the house and threatened him with dire consequence. It was urged that according to the appellant, in his statement u/s 313 Cr.P.C., he became fearful of false implication and therefore, he fled the spot.

Learned APP submitted that the findings in the impugned judgment ought not to be interfered with having regard to the settled law with regard to the Appellate Court's discretion in such matters, it is submitted that the appellant's name was mentioned and proved on record earliest in Ex PW-1/A, the PCR form which was recorded at 3.20 A.M. and incident occurred at 3.00 A.M. according to PW-10. This was not contradicted in her cross-examination. Learned counsel urged that the disappearance of Tun Tun Das from his house and his subsequent arrest on 04.01.2010 could not be explained in the manner as is sought to be done in the present appeal, through no explanation except of his being complicit in the crime. It was argued that recovery of the murder weapon i.e. the knife, through memo Ex. PW-13/A, recovery of blood stained domes at the accused's behest and the circumstance that the blood stains on the knife matched the blood stains seized from the spot, (through earth control (as Ex. PW-19/D), on comparison, with the deceased blood group, by FSL report Ex. PW-24/A) were clear and cogent incriminating circumstances; which could not have been explained, away, as is sought to be done by the appellant. Having regard to these circumstances, the learned counsel urged that the appellant was under a duty to explain his presence which was duly, testified by PW-10. His explanation was improbable, he actually admitted to his presence at the spot when the attack took place. Having regard to the totality of these circumstances, learned APP urged that findings of the Trial Court cannot be reversed and that Kajal's inability to depose in the proceedings also did not demolish the prosecution story.

From the above narrative, it is evident that the incident took place in the early hours of-the morning on 5.12.2009. The earliest intimation about the stabbing incident was given by a neighbor PW-4 Ravi to the police; PCR intimation has been produced as Ex. PW-1/A. The relevant entry was made at 3.20 A.M. It mentioned about the stabbing incident by a brother. The address of the premises is also recorded in the PCR form. According to the prosecution, the earliest intimation took place at 3.30 A.M. (PW-2) followed up with the intimation by PW-19 and PW-20. The statement of the relevant witness PW-10, on the basis of which FIR was lodged, was in fact taken down by 7.00 A.M. The main evidence in this case was that of PW-10. She deposed that she, her parents, Suman and the appellant were all living together. The witness further stated that she used to steep on the first floor whereas Suman and her children as well as parents used to sleep on the ground floor. According to this witness, Kajal went up to her in the morning and stated that her mother was vomiting. She went upstairs; Suman was lying in a pool of blood. She had injuries on her face and neck. PW-10 also claimed to have seen the appellant. Tun Tun Das in a perplexed condition. In the words of the witness, "he was perspiring and had blood on his shirt and on seeing me he ran away from there". The said witness was cross-examined but her statement could not be shaken. In fact, she elaborated that Kajal as well as her younger brother were crying at that time. A comparison between her deposition in Court and Ex. PW-10/A, the earlier statement recorded u/s 161 Cr.P.C. does not reveal any material discrepancy. She however did not mention about the bloodstained shirt worn by the appellant Barring this, there is no other discrepancy in the statement recorded u/s 161 Cr.P.C. PW-10/ A and her deposition in the Court.

The question as to whether there was any significant delay reporting the incident would become relevant if there are suspicious circumstances surrounding the incident. In this case, the earliest intimation Ex. PW-10/A clearly mentioned about the stabbing incident in which the deceased died. Even though the identity of the brother was not disclosed in that document, there is no reason for the Court to suspect that the police would falsely implicate the present appellant. Therefore, the fact that the FIR was registered later or the intimation Ex. PW-10/A was sent later is of no consequence.

As far as the appellant's argument regarding unnatural conduct of the niece in waking up PW-10 is concerned, this Court perceives nothing material in this fact. In fact, Kajal was a young girl of tender age. According to the testimony of the PW-10, Kajal stayed on the ground floor with her mother and the appellant. Whether she was told by the appellant or she saw her mother at the relevant time, the fact remains that at the time of the attack, she was there and she informed her aunt to whom she apparently was close. The evidence on record also shows that all the family members lived under the same roof. Furthermore, we have noticed that the appellant during the course of the statement u/s 313 Cr.P.C. also mentioned having told Kajal that her mother had died.

The veracity of PW-10 is a clinching factor in this case. This witness was clear and, cogent in her testimony and the circumstances in which she observed the deceased; she also deposed how she saw the appellant. Now, we cannot ignore the fact that the appellant was the brother of PW-10 and the deceased was her sister. This is an important aspect because no motive has been ascribed to PW-10 to falsely depose against him. The appellant even in the statement recorded u/s 313 Cr.P.C. does not impute any such allegation. On the other hand, his explanation u/s 313 Cr.P.C. about being present at the spot when attack took place and that he ran away due to fear of false, implication is not only unconvincing but utterly hollow. This Court further notices that the appellant on his own did not return to the premises where he lived, but was arrested on 04.01.2010.

Apart from these circumstances, the Court also notices that the Trial Court based its conclusion on the recovery of the knife, shirt containing blood seized from the spot. The knife was recovered on 04.01.2010 at the time of the appellants arrest. The Trial Court reasoned correctly that this was an incriminating circumstance which the appellant had to explain but he did not, in the Trial Court. Having regard to the above discussion and having considered the totality of circumstances, since we have the benefit of carefully considering the Trial Court records, we are of the opinion that the impugned judgment does not call for any interference. The appeal is consequently dismissed.