Crl. A(J) 45 of 2013 and Crl. A 4 of 2014. Case: Shyamal Malakar and Ors. Vs The State of Tripura and Ors.. Tripura High Court
| Case Number | Crl. A(J) 45 of 2013 and Crl. A 4 of 2014 |
| Counsel | For Appellant: Somik Deb and S. Lodh, Advocates and For Respondents: A. Ghosh, P.P. and S. Deb (Gupta), Advocate |
| Judges | T. Vaiphei, C.J. and S.C. Das, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 232, 313, 374, 378(1)(b); Indian Penal Code 1860, (IPC) - Sections 302, 34 |
| Judgement Date | January 09, 2017 |
| Court | Tripura High Court |
Judgment:
S.C. Das, J., (At Agartala)
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Both the appeals were heard together on the prayer of learned counsel of the parties, since, directed against the same judgment and order dated 26.11.2013, passed by learned Addl. Sessions Judge, Court No. 5 (Fast track Court) West Tripura, Agartala in Sessions Trial No. 183 of 2012.
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By filing Criminal Appeal (J) No. 45 of 2013, under Section 374 of Cr.P.C. the convict-appellant Shyamal Malakar challenged the judgment and order of conviction and sentence dated 26.11.2013 whereunder he has been found guilty of the charge framed against him under Section 302 read with Section 34 of IPC and sentenced him to suffer R.I. for life and to pay fine of Rs. 5000/-, in default, to suffer R.I. for three months.
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By filing Criminal appeal No. 4 of 2014, under Section 378(1)(b) of Cr.P.C., the State of Tripura, appellant, challenged the same judgment and order dated 26.11.2013 whereunder the accused-respondent Suman Malakar has been acquitted from the charge framed against him under Section 302 read with Section 34 of IPC.
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Heard learned counsel, Mr. Somik Deb for the appellant in Criminal Appeal (J) No. 45 of 2013 and for the respondent in Criminal Appeal No. 4 of 2014.
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Simultaneously, heard learned P.P., Mr. A. Ghosh for the respondent in Criminal Appeal (J) No. 45 of 2013 and learned counsel, Ms. S. Deb (Gupta) for the appellant of Criminal Appeal No. 4 of 2014.
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Shyamal Malakar, the appellant of Criminal Appeal (J) No. 45 of 2013 and Suman Malakar, the respondent of Criminal Appeal No. 4 of 2014 were full blood brothers. They along with another Indrajit Das were charge-sheeted by the police in West Agartala P.S. Case No. 212 of 2011 under Section 302/34 of IPC and in course of trial learned Addl. Sessions Judge by order dated 17.12.2013, framed a common charge against them for commission of offence punishable under Section 302 read with Section 34 of IPC to which they pleaded not guilty and claimed to be tried.
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Prosecution case was that accused Shyamal Malakar had a dispute with Surjya Chakraborty at the time of previous Durga Puja festival and thereafter Shyamal Malakar conspired to kill Surjya chakraborty. On 19.06.2011, a Sunday, at about 10/10:30 p.m. Surjya Chakraborty, aged about 22 years, was in his house and was enjoying a TV programme. At that time, the accused Shyamal Malakar and Suman Malakar called Surjya Chakraborty from outside and accordingly Surjya Chakraborty went out of his hut to the road in front of his house and when he reached there, the accused persons Shyamal Malakar and Suman Malakar along with another attacked Surjya Chakraborty and Shyamal Malakar struck repeated 'Dao' blows on the head of Surjya Chakraborty and Suman Malakar also gave 'Shabal"(crow bar) blow on the face of Surjya and as a result, Surya received severe bleeding injuries, raised alarm and hearing his alarm when the inmates of the house of Surjya Chakraborty rushed to the spot, the miscreants fled away.
The injured Surjya Chakraborty was immediately shifted to G.B. Hospital by his full blood brother Sujit Chakraborty (P.W. 1) and accompanied with cousin brother Swapan Chakraborty (P.W. 8) and at G.B. Hospital doctor declared him dead.
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Someone reported about the incident to West Agartala P.S. without giving details and accordingly S.I. Ranjit Debnath of West Agartala P.S. (P.W. 14) along with S.I. Milan Dutta (P.W. 12), O.C. of Ramnagar T.O.P. and O.C. of West Agartala P.S. rushed to the village Lankamura after making a G.D. Entry No. 1287 dated 19.06.2011 at West Agartala P.S. and thereafter on reaching the spot, the police party found that the injured was already shifted to the hospital and S.I. Ranjit Debnath (P.W. 14) started investigation on the spot and the other police officers i.e. P.W. 12 and O.C. of the P.S. went to G.B. Hospital where P.W. 1 Sujit Chakraborty submitted a written FIR to P.W. 12 which was forwarded to the O.C., West Agartala P.S. and on the basis of that FIR, West Agartala P.S. Case No. 212 of 2011 was registered under Section 302/34 of IPC and S.I. Ranjit Debnath was entrusted investigation who conducted the major part of investigation and subsequently on his transfer investigation was entrusted to S.I. Manik Debnath (P.W. 15) of West Agartala P.S. who submitted charge-sheet against accused Shyamal Malakar and Suman Malakar as well as another accused Indrajit Das.
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Prosecution examined 15 witnesses and also proved several documents and materials. The list of witnesses and the list of exhibited documents and materials have been arrayed in Para 4 and 5 of the trial Court judgment.
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After the prosecution evidence was closed, the accused Indrajit Das was acquitted under Section 232 of Cr.P.C. The accused Shyamal Malakar and Suman Malakar were examined under Section 313, Cr.P.C. and in their turn they declined to adduce any defence evidence.
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At the time of cross examination of prosecution witnesses, the accused persons proved some portion of the previous statement of the prosecution witnesses which were marked as Exbt. A to Exbt. D, detailed in Para 6 of the trial Court's judgment.
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Defence case is that of false implication of the accused persons out of previous enmity and quarrel.
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Surjya Chakraborty died a homicidal death, is not in dispute. The accused appellant and the accused respondent of the present appeals denied their involvement in the incident. Burden lies on the prosecution to prove the charge beyond reasonable doubt.
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It is argued by learned counsel, Mr. Deb that the finding of the trial Court in respect of the accused-appellant Shyamal Malakar is based on no legal evidence. According to Mr. Deb, the entire prosecution case in respect of involvement of the present accused persons were seriously doubtful since the FIR was lodged by none but a full blood brother, an inmate of the house of the deceased and in the FIR nothing was stated that the accused persons committed the murder of Surjya Chakraborty. Had any inmates of the house identified the accused at the time of commission of the crime it was natural for them to reflect it in the FIR which was lodged immediately after the occurrence and there was no scope of any development or embellishment. It was simply stated that there was a dispute on an issue occurred at the time of Durga Puja. Nothing was stated in the FIR that Surjya Chakraborty went out of the house on call of the accused persons at the time of occurrence or that any of the inmates of the house found the accused persons inflicting blows on the deceased at the time of occurrence. All the statements of the witnesses were subsequent development and were first time statement before the Court. So, none of the witnesses can be believed to record a conviction. He has also submitted that the trial Court observed that the incriminating part of the evidence of witnesses were improved version but still the trial Court recorded conviction of accused Shyamal Malakar whereas on the same set of evidence, the accused Suman Malakar has been acquitted and the acquittal has been rightly recorded.
It was also argued by learned counsel, Mr. Deb that according to the statement of the witnesses, Shyamal Malakar inflicted 'Dao' (sharp cutting weapon) blows on the head of Surjya but the Autopsy Surgeon found no sharp cut injury and the cause of death was not for any sharp cut injury. The trial Court ignored that part of evidence making some unusual observation based on no evidence at all. The improved version of the prosecution witnesses, according to Mr. Deb, the Trial Court would ignore and would appreciate in the same manner in respect of both the accused Shyamal and Suman and would record an order of acquittal. No basic reason has been assigned by the trial Court in distinguishing the incriminating part of evidence in respect of accused Shyamal and Suman. There is no cogent evidence at all to record an order of conviction and so Suman has been rightly acquitted and the judgment and order of conviction and sentence of accused Shyamal should be interfered and set aside.
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