Partly allowed

Billaram Reang v. State Of Tripura

Tripura HC30 Jun 2017Crl.A(J)/40/2013

Case brief

AI extract

What is this about?

Circumstantial evidence established responsibility for a fatal assault, but the court found knowledge of likely death rather than intention to kill. It partly allowed the appeal, converted the murder conviction to Section 304-II IPC and imposed eight years' rigorous imprisonment. The Section 201 IPC conviction and sentence remained undisturbed.

What did the court decide?

Murder conviction converted to Section 304-II IPC; eight years' rigorous imprisonment imposed. Sentences to run concurrently, with adjustment for imprisonment already undergone.

Billaram Reang Vs State Of Tripura — Murder and Culpable Homicide | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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CRIMINAL APPEAL (J) NO.40 OF 2013

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Sri Billaram Reang, S/O. – Lt. Lutihum Reang Of – Ramguna Para, P.S – Pecharthal, Dist. – North Tripura.

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…. Convict Appellant

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-: Versus :-

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The State of Tripura ….. Respondent

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B E F O R E

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THE HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE S. TALAPATRA

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Counsel for the appellant : Mr. Ratan Datta, Advocate, Ms. R. Purkayastha, Advocate. Counsel for the respondent : Mr. R.C. Debnath, Addl. P.P. Date of hearing : 30-05-2017. Date of Judgment & Order : 30-6-2017

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JUDGMENT & ORDER

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[ T. Vaiphei, CJ ]

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This jail appeal is directed against the judgment dated 15-1-2013 passed by the learned Additional Sessions Judge, Dharmanagar, North Tripura in S.T. No. 51(NT/D) of 2012 convicting the appellant U/s 302/201 IPC and sentencing him to life imprisonment with a fine of ₹5,000/- for the offence punishable U/s 302 IPC and to rigorous imprisonment of one year with a fine of ₹2,000/- for the offence of Section 201 IPC.

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The facts leading to the filing of this appeal may be briefly noticed at the outset. According to the prosecution, one Jagaram Reang of Ramgunapara PS, Pecharthal, North Tripura lodged an FIR with the O/C, Pecharthal PS alleging that on the day of Durga Puja Dashami on 6-10-11 at 7/8 PM, his daughter Juthika Reang, aged about 21 years, had gone to Triratna Club at Narayanpur to see function and within one hour, she and

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her elder daughter Nayanbati Reang returned to their house and found her husband making nuisance. Seeing this, Nayanbati went to the house of her younger brother Uttamjoy Reang while Juthika entered the house through the backyard of the house. Seeing the violent mood of her husband, Nayanbati went to inform the villagers but could find nobody. At about 11 PM, she returned to her house but seeing the violent mood of her husband standing on the door, she returned to house of her uncle. The next day on 9-10-2011 at about 6 AM, she returned home and found her husband Billaram Reang sleeping on the bed but Juthika was missing in the house and on being asked, her husband did not give any reply. According to the prosecution, the said Billaram used to assault Nayanbati and Juthika after consuming alcohol used to threaten to kill them. Due to his conduct, the complainant left the house and was residing at the house of her son at Purnajoypara. On 9-10-112 at about 9.15 AM, when Nayanbati was in the house, she noticed bad smell from the well of the latrine and on search found the dead body of Juthika which was partly decomposed inside the well of the latrine. She then raised hue and cry and informed the police. The complainant suspected that it was husband Billaram Reang who killed Juthika by assaulting her on her shoulder by a lathi and put her dead body in the well of the latrine to conceal evidence.

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The oral ejahar of the complainant was recorded by the in-Charge O/C, Pecharthal PS, Mr. Swapan Debbarma, who registered PTL PS Case No. 27/2011 U/s 302/201 IPC and took up investigation of the case. After the investigation was completed, the IO of the case submitted the chargesheet against the appellant U/s 302/201 IPC. On commitment, the learned Additional Sessions Judge, North Tripura, after hearing the prosecution and the appellant, framed the charges U/s 302/201 IPC, to which the appellant pleaded not guilty to the charge and claimed to be tried. The prosecution examined as many as 21 witnesses and exhibited some documents/material objects to substantiate the charges against the appellant. At the conclusion

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of the trial, the trial court passed the impugned judgment of conviction and sentence.

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According to the trial court, the following circumstances formed a chain which led to no other hypothesis than that of the guilt of the appellant and excluded any possibility of his being innocent of the offences charged against him:

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(a) The accused was a habitual drunkard and wife-beater and he used to be violent with the deceased (his sister-in-law) as well.

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(b) The accused was in drunken condition at the relevant time and was in violent mood and making nuisance.

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(d) On being asked, the accused failed to give any reasonable explanation about the whereabouts of the victim.

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(e) The dead body of the victim was found in the well of the latrine of the same house in which both the victim and accused were residing.

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(f) There was extra-judicial confession by the accused in presence of the witnesses and he showed them the danda by which he killed the victim.

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On the basis of the aforesaid circumstances, the trial court held that the facts so established are consistent only with the hypothesis of the guilt of the appellant and that it was not explainable on any other hypothesis except that the appellant was guilty of the murder of the deceased Juthika. The trial court, accordingly, passed the impugned judgment of conviction and sentence. Aggrieved by this, this appeal is now filed by the appellant.

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There can hardly be any doubt that conviction can be based on circumstantial evidence but then it should always be tested on the touchstone of the law of circumstantial evidence laid down by the Apex Court from time to time. The leading authority on this proposition of law is

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the State of Goa v. Sanjay Thakran and another, (2007) 3 SCC 755 . Cautioning that the courts must take utmost precaution since suspicion, howsoever grave, cannot be substituted for proof, the Apex court held that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:

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“( 1 ) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

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

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( 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

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( 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.”

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For better appreciation of the legal position, we may as well profitably quote from Gagan Kanojia and another v. State of Punjab, (2006) 13 SCC 516 , which reads thus:

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9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the

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circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between “may be true” and “must be true”. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on record and analyse and assess the same objectively.

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10. We would proceed on the well-known principles in regard to appreciation of the circumstantial evidence which were noticed by the High Court in the following terms:

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“( 1 ) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

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( 2 ) Circumstantial evidence can be reasonably made the basis of an accused person’s conviction if it is of such character that it

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is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.

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( 3 ) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts.

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( 4 ) On the availability of two inferences, the one in favour of the accused must be accepted.

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( 5 ) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.”

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Having acquainted ourselves with the correct legal position, the first point for consideration for us is whether the appellant was a drunkard and wife-beater and used to be violent also with the deceased. PW-2 is the wife of the appellant and testified that when the deceased (her younger sister) and she returned home (on the date of the incident) from the club, the appellant was in the house in a drunken condition and that he was otherwise also a habitual drinker and used to create nuisance at the house all the times. This part of the testimony of PW-2 is not denied in the cross-examination. It is the deposition of PW-2 that on the fateful night, she along with her children had gone to Triratna Club and, after sometime, the deceased joined her and told her that the appellant was committing nuisance after consuming alcohol. After they returned home, the deceased entered the room while she went to the house of her uncle, Kaku Uttamjoy Reang (PW-4) to inform him about the conduct of the appellant. Though she also informed her brother, nobody came to their house. She then returned her house, but seeing the drunken condition of the appellant, she returned to the house of PW-4 and spent the night there. The cross examination of this witness did not bring out anything to falsify the truthfulness of PW-2 on her aforesaid

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statements. PW-13, who was with PW-2 at Triratna Club on the night of the incident testified that the deceased came and told PW-2 that her brother-inlaw (the appellant) was making nuisance in the house in a drunken condition whereafter they left the club. PW-13 thus corroborated PW-2 in material particulars. PW-4 confirmed that PW-2 stayed at his house on that night. Thus, it can be safely said that the first and second circumstances relied upon by the trial court have been proved to the hilt by the prosecution.

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Coming now to the third circumstance, PW-2 deposed that after returning from Triratna Club, the deceased entered the room, while she went to the house PW-4 to inform him about the conduct of the appellant. She again returned to her house, but seeing the unruly condition of the appellant, she returned to the house of PW-4 and stayed there, but at that time she did not hear the sound of the deceased. When she returned home the next morning, she did not find the deceased except some of her wearing apparels like white dupata. She further testified that as soon as she entered her house, the appellant asked her about the whereabouts of the deceased, to which she countered by asking him as to why he had quarreled with the deceased and also asked him to bring her back. This statement of PW-2 was not shaken in any manner in her cross-examination. On the contrary, the defence elicited a crucial statement from PW-2 in her cross-examination that after returning from Triratna Club, she did not enter her house but the deceased did. In the light of this evidence, the prosecution has also proved to the hilt the third circumstance that the deceased was staying in that house with the appellant on the night of the incident.

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Coming now to the fourth circumstance, i.e. the failure of the appellant to give reasonable explanation about the whereabouts of the deceased even though he was last seen with her. It is seen from the evidence of PW-2 that the deceased came to Triratna Club on the night of the incident

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and informed her that her husband (husband of PW-2) was committing nuisance after consuming alcohol. She further testified that while the deceased entered their house at that time, she, however, proceeded to the house of her uncle (PW-4) to inform him about the conduct of her husband. She also informed her brother, but nobody came to her house as it was in the night. She then returned home, but seeing the unruly condition of her husband (appellant), she returned to the house of PW-4. At that time, she did not hear any sound of the deceased. She deposed that when she returned home the next morning, she did not find the deceased except some of her wearing apparels like white dupata and that as soon as she entered the house, the appellant asked her the whereabouts of the deceased, to which she countered him by asking him as to why he quarreled with the deceased and asked him to bring her back. There is no denial of those statements made by PW-2 in her cross-examination. PW-4 in his crossexamination corroborated the statement of PW-2 in her examination-in-chief that she stayed at his house on that night. From the cross-examination of PW-2, it surfaced that the appellant did not like her sister (the deceased) to stay with them on the ground that she did not allow her to do any work. This certainly proved the motive of the appellant in causing harm to the deceased. The dead body of the deceased was found in the well of the latrine of the house of the appellant. The categorical statement made by PW-2 that the deceased entered their house when the appellant was there and she did not hear about her even on the same night when she returned home only to leave the house again to spend the night at the house of PW-4 due to the unruly condition of the appellant, have not been denied in the crossexamination. Considering the place where the dead body of the deceased was found, namely, the house of the appellant, which could not be easily accessible to third parties and not in the jungle or on a street, which are accessible to all and sundry and the proof that the deceased entered their house on that night when the appellant was evidently there, the inference is

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irresistible and the conclusion inescapable that the appellant and the deceased were last seen together on the night of 6-10-2011.

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The theory of “last seen together” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the court to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. However, it is not prudent to base conviction solely on “last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. The principle is elaborately explained by the Apex Court in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 in the following terms:

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“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the

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rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re.⁵

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24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.”

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Since the prosecution has clearly established that the appellant was last seen with the deceased in the house they were staying together on the fateful night and that the body of the deceased was also found in the well of the latrine of the appellant, the burden is upon him to prove as to what happened to the deceased after she entered his house inasmuch as her whereabouts thereafter are facts specially within his knowledge. He never offered any explanation even in his examination under Section 313 CrPC as to how the dead body of the deceased was found in the well of his latrine, which was not easily accessible to strangers. As he has failed to do so, it must also be held that he has failed to discharge the burden cast upon him by Section 106, Evidence Act. This circumstance, therefore, provides one of the missing links in the chain of circumstances which could prove the guilt of the appellant beyond the shadow of doubt.

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5 AIR 1960 Mad 218

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This then takes us to the evidentiary value of the extra-judicial confessions made by the appellant to some of the prosecution witnesses. PW-2 deposed that when they returned from the Club, the appellant was in a drunken condition and was otherwise a habitual drunker and also used to make nuisance in the house all the time. She further deposed that he confessed to her that he killed the deceased; that he struck her with a branch of tree and her gold necklace was also missing, which he threw in the latrine. In her cross-examination, she admitted that she was not an eyewitness to the killing, but affirmed that he confessed to her. Unfortunately for the prosecution, the extra-judicial confession made by the appellant to PW-2, who happens to be his wife, for what it’s worth, is not admissible as it is hit by Section 122, Evidence Act. Therefore, no assistance can be derived from her statement by the prosecution to convict the appellant. However, PW-6 in his cross-examination, revealed that there was meeting in his courtyard and that on their asking, the appellant confessed that he committed the murder of the deceased. There is no evidence to show that this confession was made by the appellant before the police or in their presence. He further deposed in his cross that he told the daroga that the appellant confessed before them in the meeting at his courtyard. It is also interesting to note that PW-5, who is the elder sister of the deceased, deposed that the appellant confessed to them. In her cross-examination, she affirmed that the appellant confessed to them about the murder before the arrival of the police when the dead body was discovered in the latrine well and that he had stated to the police that the appellant confessed before them about the murder.

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At this stage, it may be straightaway pointed out that the extrajudicial confession made before PW-10 by the appellant is not admissible in law and cannot, therefore, be acted upon since the prosecution could not establish that such confession was not made before or in the presence of the police. However, PW-11 deposed that the appellant

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told him that he killed the victim by a lathi and put her dead body in the well of a latrine. The credibility of this statement could not be shaken by the defence in his cross-examination. This extra-judicial confession made to PW11 was evidently not made in the presence of the police nor was any suggestion/denial/rebuttal made to that effect. The extra-judicial confession made by the appellant before PW-12 is, however, not admissible in evidence since the same was made before a police officer. Except for the extra-judicial confessions of PW-2, PW-10 and PW-12, the credibility of the evidence of PW-5, PW-6 and PW-11 could not be seriously impeached by the defence. True, extra-judicial confession is a weak piece of evidence in the sense that it cannot be made the basis of conviction. The principles in respect of evidentiary value and reliability of extra-judicial confession were reiterated by the Apex Court in R. Kuppusamy v. State represented by Inspector of Police, Ambeiligai, (2013) 3 SCC 322, which are in the following terms:

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“8. That a truthful extra-judicial confession made voluntarily and without any inducement can be made a basis for recording a conviction against the person making the confession was not disputed before us at the hearing. What was argued by Ms Mahalakshmi Pavani, counsel appearing for the appellant, was that an extra-judicial confession being in its very nature an evidence of a weak type, the courts would adopt a cautious approach while dealing with such evidence and record a conviction only if the extrajudicial confession is, apart from being found truthful and voluntary, also corroborated by other evidence. There was, according to the learned counsel, no such corroboration forthcoming in the present case which according to her was sufficient by itself to justify rejection of the confessional statement as a piece of evidence against the appellant. Reliance, in support of the contention urged by the learned counsel, was placed upon the decisions of this Court in

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Gura Singh v. State of Rajasthan² and Sahadevan v. State of T.N.³

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9. In Gura Singh case (supra), a two-Judge Bench of this Court was also dealing with an extra-judicial confession and the question whether the same could be made a basis for recording the conviction against the accused. This Court held that despite the inherent weakness of an extra-judicial confession as a piece of evidence, the same cannot be ignored if it is otherwise shown to be voluntary and truthful. This Court also held that extra-judicial confession cannot always be termed as tainted evidence and that corroboration of such evidence is required only as a measure of abundant caution. If the court found the witness to whom confession was made to be trustworthy and that the confession was true and voluntary, a conviction can be founded on such evidence alone. More importantly, the Court declared that courts cannot start with the presumption that extra-judicial confession is always suspect or a weak type of evidence but it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful.

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(Underlined for emphasis)

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10. In Sahadevan case (supra) a two-Judge Bench of this Court comprehensively reviewed the case law on the subject and concluded that an extra-judicial confession is an admissible piece of evidence capable of supporting the conviction of an accused provided the same is made voluntarily and is otherwise found to be truthful. This Court also reiterated the principle that if an extrajudicial confession is supported by a chain of cogent circumstances

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2 (2001) 2 SCC 205

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3 (2012) 6 SCC 403

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and is corroborated by other evidence, it acquires credibility. To the

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same effect are the decisions of this Court in Balbir Singh v. State of Punjab⁴ and Jaspal Singh v. State of Punjab⁵ .

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11. It is unnecessary, in the light of above pronouncements, to embark upon any further review of the decisions of this Court on the subject. The legal position is fairly well settled that an extra-judicial confession is capable of sustaining a conviction provided the same is not made under any inducement, is voluntary and truthful. Whether or not these attributes of an extra-judicial confession are satisfied in a given case will, however, depend upon the facts and circumstances of each case. It is eventually the satisfaction of the court as to the reliability of the confession, keeping in view the circumstances in which the same is made, the person to whom it is alleged to have been made and the corroboration, if any, available as to the truth of such a confession that will determine whether the extra-judicial confession ought to be made a basis for holding the accused guilty.”

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In the instant case also, the extra-judicial confession was made by the appellant before PW-5, PW-6 and PW-11 at the time of recovery of the dead body of the deceased. The testimonies of these witnesses in this behalf could not be discredited by the appellant in their cross-examination. No evidence is brought on record by the appellant to show that such confession was made by him before or in the presence of the police. In other words, the statements of PW-5, PW-6 and PW-11 with respect to the extra-judicial confession of the appellant will go a long way in forming one of the missing links in the chain of circumstances to prove his guilt. In fact, such confession also came to surface during the cross-examination by none other than his counsel, which only betrays the credibility and trustworthiness of

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4 1996 SCC (Cri) 1158

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5 (1997) 1 SCC 510

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these witnesses. There is absolutely no evidence to show that the extrajudicial confession of the appellant was made by means of inducement or under duress. In our opinion, we cannot start with the presumption that extra-judicial confession is always suspect or is a weak type of evidence, after all, it would always depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful. Thus, in our opinion, the extra-judicial confession of the appellant made before PW-5, PW-6 and PW-11 does not suffer from any material deficiency, and they do inspires our confidence. That apart, the prosecution has proved the existence of motive with the appellant to cause harm, if not death, to the deceased. This can be seen from the statement of PW-2, who deposed that the appellant did not like the deceased to stay with them as she did not allow her to do any work. Apparently, the indulgence shown by his wife (PW-2) to her sister became a source of resentment for the appellant. Thus, it could be safely said that the appellant had the motive for harming the deceased. The existence of motive can be helpful to the prosecution in a case based on circumstantial evidence. In the instant case, the existence of motive to harm the deceased by the appellant is another chain in the link of circumstantial evidence against him. The principle is reiterated by the Apex Court in Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654 in the following manner:

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“15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of

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circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite v. State of Maharashtra¹ , Hari Shanker v. State of U.P.² and State of U.P. v. Kishanpal³ .”

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Another circumstance which cannot be lost sight of is the manner in which the lathi/danda/a branch of tree was seized allegedly as pointed out by the appellant. This lathi was said to be used by the appellant in the commission of the crime. The IO of the case, who was examined as PW-16, testified that as per the confession of the appellant, he recovered a branch of tree and seized the same by preparing a seizure list bearing dated 20-1011 marked as Exbt. 5/1. He subsequently elaborated his evidence by testifying that he recovered the tree branch from outside the corner of the hut of the appellant as shown by him. PW-10 deposed that the incident had occurred about one year ago from the day of Durga Puja Dashami; that the appellant showed the danda by which he assaulted the deceased and that

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1 (1973) 3 SCC 219

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2 (1996) 9 SCC 40

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3 (2008) 16 SCC 73

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the danda was seized by the darogababu and he put his signature in the seizure list marked Exbt. 5. In cross, he disclosed that the danda was seized after seven days from the incident. PW-12 testified that after ¾ days of the incident, when he was going by the side of the house of the victim, at that time, the police called him and when he had gone there, the appellant showed him how he killed the victim and put the dead body in the well of a latrine and that he told him that he killed the victim with a lathi. He then deposed that darogababu seized a lathi and he put his signature on the seizure list marked as Exhibit-5/1. The IO of the case had deposed that as per the confession of the appellant, he recovered the branch of tree and seized it by preparing the seizure list dated 20-10-11. The incident occurred on 6-10-2011. As per the evidence of the IO (PW-16), the tree branch/lathi was recovered by him on 20-10-2011 as he did not get police remand due to the non-availability of the Magistrate; that was why, he could not interrogate the appellant earlier. He also admitted that he did not record the statement of the appellant, but he made a GD entry of this statement. In the absence of evidence, it is unbelievable that due to the absence of the Magistrate, he could not get a police remand for ten days. There could not have been only one Judicial Magistrate at that time within that area from whom he could have easily obtained a police remand. This appears to be a blatant lie. The law is quite clear: the power of remand can be exercised even by a Magistrate, who does not have the jurisdiction to try the case, for a period of fifteen days in the whole with the rider that he cannot grant successive remands. Thus, the statement of the IO that he could not obtain police remand for ten days due to the non-availability of a Magistrate flies in the face of this legal provision and has, therefore, raised some doubt in the case of the prosecution that the lathi was recovered by him as pointed out by the appellant.

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However, the moot point is whether the failure of the prosecution to prove the seizure of the lathi at the instance of the appellant can otherwise destroy the substratum of their case. In our opinion, failure on the part of the prosecution to prove the recovery of the lathi at the instance of the appellant pales into insignificance, when the other circumstances found by us earlier are sufficient to form the completed chain pointing unerringly to the guilt of the appellant for the death of the deceased. This question reminds us of the following observations of the Apex Court in State of Punjab v. Karnail Singh, (2003) 11 SCC 271 :

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“12. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh¹² .) The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava¹³ .) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.¹⁴ ) .] Vague hunches cannot take place of judicial evaluation. “A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also

¶96

12 (1990) 1 SCC 445

¶97

13 (1992) 2 SCC 86

¶98

14 (1978) 4 SCC 161

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CRIMINAL APPEAL (J) NO.40 OF 2013 Page 18 of 22

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presides to see that a guilty man does not escape. Both are public duties.” (Per Viscount Simon in Stirland v. Director of Public Prosecution¹⁵ quoted in State of U.P. v. Anil Singh¹⁶ , SCC p. 692, para 17.) Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. (See: Shivaji Sahabrao Bobade v. State of Maharashtra (supra) , State of U.P. v. Krishna Gopal¹⁷ and Gangadhar Behera v. State of Orissa¹⁸ .)

¶101

This then takes us to the post mortem examination report of the deceased. The post mortem examination was conducted by two Medical Officers, who were examined as PW-20 and PW-21. As per the post mortem report, the wounds, position, size and character could not be appreciated due to decomposition. Similarly, bruises, its position, size and nature could not also be ascertained due to decomposition. No marks of ligature on neck, etc. were also found. Cause of death was, however, found to be shock due to cervical vertebral fracture injury which might be caused by heavy blunt weapon. No final opinion on the cause of death could be found. The report was confirmed by PW-20 and PW-21 in their evidence. In our judgment, even in the absence of ocular evidence, the oral testimonies of the prosecution witnesses and the following circumstances are sufficient to prove that the appellant caused the death of the deceased, namely,

¶102

The victim and the appellant were alone in the house on the night when she seen alive by PW-2.

¶103

15 1944 AC 315

¶104

16 1988 Supp SC 686

¶105

17 (1988) 4 SCC 302

¶106

18 (2002) 8 SCC 381

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¶108

The appellant was making nuisance in the house in a drunken condition upon which the deceased went to inform her sister (PW-2) about his behavior at their house whereafter they left the club and PW-2 saw the deceased entering their house when the appellant was therein.

¶109

On being asked, the appellant failed to give any reasonable explanation about the whereabouts of the victim even though he was last seen with the deceased on the night she was seen alive.

¶110

The dead body of the victim was found in the well of the latrine of the same house in which both the victim and appellant were residing; there was no possibility of others coming near the latrine.

¶111

There was extra-judicial confession by the appellant in presence of by PW-5, PW-6 and PW-11 that he killed the deceased.

¶112

The prosecution has proved to the hilt the existence of motive on the part of the appellant to assault her due to the princely treatment given to her by her sister.

¶113

The medical evidence also corroborates the case of the prosecution that the injury found on the body of the deceased was caused by a blunt weapon, which was a branch of tree/lathi (Exbt.5/1) .

¶114

Admittedly, there exist certain discrepancies in the statement of prosecution witnesses, but, in our judgment, from the broad features of the case barring the evidence pertaining to the failure of the prosecution to prove recovery of the lathi at the instance of the appellant, the prosecution has successfully established evidence, which are conclusive in nature and consistent only with the hypothesis of guilt and inconsistent with his

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CRIMINAL APPEAL (J) NO.40 OF 2013 Page 20 of 22

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innocence, and they do have the moral certainty to exclude the possibility of guilt by any person other than the appellant. What happened that night was that the appellant, jealous of the royal treatment given to his sister-inlaw by PW-2, decided to punish the deceased by hitting her with blunt weapon, which resulted in her death and thereafter dumped her dead body on the well of their latrine to remove evidence. The last question to be determined is whether the facts established by the prosecution will constitute murder or culpable homicide not amounting to murder. Though the appellant undoubtedly caused the death of the deceased by using blunt weapon as opined by PW-20 and PW-21, which could be a lathi as theorized by the prosecution, there is no evidence to show that he had the intention to kill the deceased. As already noticed, PW-2 in her evidence testified that after she along with the deceased returned home from the club, the appellant was in the house in a drunken condition; he was otherwise also a habitual drunker and used to make nuisance in the house all the time. It may be noted here that PW-2 at the beginning of the examination-in-chief deposed that the deceased had told her that the appellant was committing nuisance after consuming alcohol and that seeing his unruly condition, she returned to the house of PW-4. It may be stated that PW-2 did not earlier enter her house and left behind the deceased with the appellant in their house and had rather gone to the house of PW-4. That was the last time PW-2 saw the deceased.

¶117

Though circumstantial evidence established the involvement of the appellant in the death of the deceased, the last question which falls for consideration is whether, in the absence of any other evidence, it could be said that the appellant had the intention of causing death to the deceased or of causing such bodily injury likely to cause her death. In our opinion, keeping in mind the admitted position that the appellant was in a drunken condition on that night, of the weapon used by him i.e. a branch of

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¶119

tree/lathi and of the absence of multiple injuries on the body of the deceased, it could not be said with definiteness that the appellant had the intention to cause the death of the deceased. However, we can say without fear of contradiction that the appellant assaulted the deceased with a branch of tree/lathi with the knowledge that it was likely to cause her death, which falls within the offence punishable under Part-II of Section 304 IPC. Since no challenge is made to the findings with respect of the conviction and sentence of the appellant under Section 201 IPC, we decline to interfere with the same.

¶120

The result of the foregoing discussion is that this appeal partly succeeds. The conviction of the appellant under Section 302 IPC stands converted to one under Section 304-II IPC, while his conviction and sentence under Section 201 IPC shall remain undisturbed. He is, therefore, sentenced to undergo rigorous imprisonment for eight years for the offence of Section 304-II IPC with a fine of ₹5,000/- and, in default thereof, to suffer another R.I. for 2 years. Both the sentences are to run concurrently. The impugned judgment stands modified to the extent indicated above. The period already undergone by him in jail hitherto shall be adjusted accordingly. Transmit the L.C. record forthwith.

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JUDGE CHIEF JUSTICE

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CRIMINAL APPEAL (J) NO.40 OF 2013 Page 22 of 22

Billaram Reang v. State Of Tripura

Case brief

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Billaram Reang v. State Of Tripura

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