Tripura High Court
Convict vs The State Of Tripura on 5 August, 2021
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HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) No. 26 of 2019
Sri Rajesh Urang,
Son of Sri Sunil Urang, resident of Murticherra No.10 (Urangpara), P.S.-
Kailashahar, District-Unokoti Tripura.
----- Convict Appellant(s)
Versus
The State of Tripura
-----Respondent(s)
Crl. A. (J) No. 26 of 2020
Sri Sunil Urang,
Son of Late Jagannath Urang, resident of village-Murticherra No.10 (Urangpara),
P.S.-Kailashahar, Unakoti District.
----- Appellant(s)
Versus
The State of Tripura
-----Respondent(s)
For Appellant(s) : Mr. P. Majumder, Advocate.
Ms. R. Purkayastha, Advocate.
For Respondent(s) : Mr. S. Debnath, Additional Public Prosecutor.
Date of Hearing : 12th March, 2021.
Date of Pronouncement : 5th August, 2021.
Whether fit for reporting : Yes No
√
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B_E_F_O_R_E_
HON'BLE MR. JUSTICE ARINDAM LODH
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
[Per S.G. Chattopadhyay, J]
Since both the appeals arise out of the same judgment and the facts
and law, involved, are also same, they are clustered together for disposal by this
common judgment. By means of filing these criminal appeals, appellants have
challenged the judgment and order of conviction and sentence dated 14.02.2019
whereby and whereunder appellant Rajesh Urang and his appellant father Sunil
Urang were convicted under section 302 of the Indian Penal Code (IPC hereunder)
and sentenced to imprisonment for life and a fine of Rs.10,000/- each with default
stipulation for having committed offence punishable under section 302 read with
section 34 IPC.
[2] The factual background of the case is as under:
Narayan Urang [PW-15], brother of the deceased, lodged the FIR
with the officer in charge of Kailashahar police station alleging, inter alia, that on
02.07.2012 at about 10 O'clock in the night, daughter of the deceased informed
him that appellant Rajesh Urang along with his appellant father Sunil Urang and
uncle Mohan Urang was assaulting the deceased with dao, lathi etc. in front of the
house of Jadu Lal Urang in their neighbourhood in Urang Para at Murticherra.
Having heard the news, informant rushed to the spot along with his younger
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brother Ruplal Urang and some of his neighbours and found that his brother Raju
Urang was lying dead with multiple injuries in his head and various other parts of
his body. The Pradhan of the Gram Panchayat [PW-13] reported the matter to
police over telephone at about 11 O' clock in the night. Police arrived at the spot
immediately and received the written FIR from Narayan Urang [PW-15]. When
police came, body of the deceased was lying at the spot. SI Sri Biswajit Debbarma
[PW-18] held the inquest and after holding inquest he sent the dead body to
Kailashahar hospital through police staff. The wearing apparels of the deceased
were seized and the crime scene was inspected by said Biswajit Debbarma [PW-
18]. Raid was also conducted in the house of the appellants who were found
absconding. Said Biswajit Debbarma [PW-18] then returned to the police station
and submitted the written FIR of Narayan Urang [PW-15] to the officer in charge
of Kailashahar police station who registered the case as Kailashahar PS case No.
166 of 2012 under sections 302 read with section 34 IPC against appellant Rajesh
Urang, his father Sunil Urang and his uncle Mohan Urang and endorsed the case to
said Biswajit Debbarma, SI of police [PW-18] for investigation.
[3] In the course of his investigation, the IO conducted several raids in
the house of the accused at Murticherra. He came to know that accused Mohan
Urang was admitted in hospital and the other two accused were hiding at
Natingcherra tea garden. On the basis of such information the IO arrested
appellant Sunil Urang from Natingcherra. Accused Mohan Urang was arrested
after his release from hospital. Appellant Rajesh Urang surrendered in court after
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his father and uncle were arrested by police. The material witnesses of the case
including the informant were examined and their police statements were recorded
under section 161 Cr.P.C. Having completed the investigation of the case, the IO
[PW-18] submitted Challan No. 49 of 2013 dated 30.04.2013 against the
appellants and accused Mohan Urang for having committed offence punishable
under section 302 read with section 34 IPC.
[4] Having taken cognizance of offence, the Chief Judicial Magistrate,
North Tripura vide his order dated 20.12.2013 committed the case to the court of
Sessions for trial. Trial commenced in the court of the Sessions Judge at
Kailashahar with the framing of the following charge of offence against the three
FIR named accused of this case:
"That you, on 02-07-2012 at about 2200/2230 hours at
Murticherra Urang Para under Kailashahar P.S in
furtherance of common intention did commit murder by
intentionally causing the death of Raju Urang by means of
dao, lathi and that, you, thereby commited an offence under
section 302 read with section 34 of the Indian Penal Code and
within my cognizance.
And I do hereby direct that you be tried on the said charge by
this Court of Sessions."
[5] During trial, as many as 18 (eighteen) prosecution witnesses were
examined, 9 (nine) documents were introduced as Exhibits 1 to 9 and 2 (two)
material objects were identified and marked as Exbt. MO1 & Exbt. MO2. The
appellants were then separately examined under section 313 Cr.P.C after splitting
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up the trial against accused Mohan Urang who absconded during trial. In their
reply, appellants denied all incriminating evidence appearing against them and
claimed that they were innocent and the charge of murder was foisted on them.
They declined to adduce any evidence on their defence. The trial court discussed
and assessed the evidence of witnesses and examined the contentions raised by
the counsel of the parties and on appreciation of evidence held the appellants
guilty and convicted them for having committed offence punishable under section
302 read with section 34 IPC and both of them were sentenced to imprisonment
for life.
[6] Both the convicts have challenged the impugned judgment mainly
on the following grounds:
(i). The trial court did not take note of the material discrepancies appearing in
the evidence of prosecution witnesses and erroneously held them guilty.
(ii). The trial court did not appreciate the fact that most of the witnesses
deviated from their police statements and made improved statement at the trial.
(iii). The involvement of the appellants in the alleged offence is not proved
beyond reasonable shadow of doubt.
[7] In the course of arguments on behalf of the appellants, Counsel
have contended that in the given case prosecution has presented two sets of
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evidence which are contradictory to each other. One set of the PWs is supporting
the prosecution case whereas the other set of PWs have given a contradictory
version. Counsel contend that in such situation, it would be appropriate to extend
the benefit of doubt to the appellants. In support of their contention Counsel have
relied on the decision of the Apex Court in Harchand Singh & Anr. Vs. State of
Haryana reported in (1974) 3 SCC 397: AIR 1974 SC 344 wherein the Apex
Court allowed the appeal against the judgment of conviction and sentence and
acquitted the appellant from the charge of section 302 IPC because prosecution
presented two contradictory sets of evidence which created doubt in the mind of
the court about the veracity of the prosecution case. Learned counsel have further
contended that during police investigation of the case, no weapon of offence was
recovered from the possession of any of the accused persons though the
prosecution came out with a case that the assailants used dao and lathi for killing
the deceased. Even no blood stained earth or any other incriminating material
could be recovered from the crime scene. Even the wearing apparels which were
later seized from the possession of the appellants were not sent for forensic
examination. In such circumstances, the prosecution case against the appellants is
highly doubtful and the appellants deserve benefit of doubt and acquittal. It has
been further contended by learned counsel that the trial court did not appreciate
the fact that after the death was reported at the police station, police appeared
within a hour at the crime scene and at that time the blood stained dead body was
still lying there. Moreover, one of the accused was stated to have received injury
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and the said injured accused also shed blood at the PO but no blood stain could be
collected by the investigating agency from the crime scene. Ms. R. Purkayastha,
learned counsel emphatically argued that non-recovery of weapon of offence and
absence of blood stain at the PO creates serious doubt about the veracity of the
prosecution case. Relying on the decision of the Apex Court in Hem Raj & Ors.
Vs. State of Haryana reported in (2005) 10 SCC 614 counsel submits that in
similar circumstances, the Apex Court acquitted the convict from the charge of
murder observing as under:
"10. One more aspect which deserves notice is that at the
alleged scene of offence, no blood-stains were found by the IO,
though he made a search. The surmise of the High Court that
the blood stains at the public place would have disappeared in
view of the time gap between the incident and the IO's
inspection may not be correct, especially, in view of the fact
that it is a metal road, as shown by PW 8 in the site plan and it
was night-time. It is difficult to believe that traces of blood
would fade out by the time of the visit of IO. This is one of the
circumstances that has to be kept in mind while appreciating
the prosecution case.
..................................................................................................
12. No weapons were recovered from any of the accused. The
recovery of knife from Kala at the time of surrender has been
rightly disbelieved by the trial Court.
..................................................................................................
14. On a consideration of the evidence on record and the broad
probabilities, we come to an irresistible inference that there is a
reasonable possibility of some accused who were not involved
in the attack having been convicted. It is difficult to sift the
grain from the chaff. The High Court missed to notice certain
crucial aspects adverted to above. It is a case in which benefit
of doubt has to be accorded to the appellants. It is unnecessary
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to consider the question whether in the absence of charge
under Section 34 IPC, the conviction can be sustained.
15. In the result, the appeals are allowed and the conviction
and sentence of all the appellants is set aside."
Counsel therefore, urges the court for allowing the appeal.
[8] Mr. S. Debnath, learned Additional Public Prosecutor on the other
hand contends that evidence of the PWs with regard to the involvement of the
appellants in the commission of murder of deceased Raju Urang is quite
consistent, corroborative and coherent and the trial court correctly held the
appellants guilty on the basis on their evidence. It has been further contended by
learned Additional Public Prosecutor that the appellants could not impeach the
eye witness version of the daughter of the deceased [PW-1] and that of Jaba
Urang [PW-17] who clearly stated that following the cry of the deceased, they
went there and saw the appellants along with Mohan Urang assaulting Raju
Urang with lathi and dao near the house of Jadu Lal Urang in their
neighbourhood. It is contended by Mr. Debnath, learned Additional Public
Prosecutor that the appellants killed the deceased without the slightest
provocation and therefore they have been rightly punished by the trial court.
Learned Public Prosecution urges the court for dismissing the appeal.
[9] Firstly, it is to be seen, how far the prosecution has proved the death
of the deceased to be homicidal in nature. Dr. Debashish Bhadra [PW-14]
conducted autopsy over the dead body of the deceased for one hour from 11.30
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am to 12.30 pm on 03.07.2012 after the body was brought to hospital at about 11
O'clock in the morning. According to the PW, death of said Raju Urang occurred
within the last 24 hours and during autopsy the following external injuries were
found:
1. A lacerated wound over left parietal region of scalp. Size of the wound
was 10 cm x 4 cm x cavity depth.
2. Brain matters came out through the wound and clotted blood was found
adjacent to the edges of the wound.
3. Exploration of parietal cavity behinges was found lacerated at the site of
the injury. Laceration of brain matters of left cerebral hemisphere was also
found.
4. There were multiple comminuted fracture at the parietal bone.
About the cause of death, PW-14 opined in his report that "shock
due to injury of vital structure in brain caused the death which was anti mortem
and homicidal in nature". In his testimony at the trial, the doctor confirmed the
injuries recorded in his post mortem report and also confirmed the cause of death.
The accused could not impeach his evidence to any extent by cross examination.
PW simply stated in cross examination that nature of weapon used by the
assailants was not recorded in the post mortem report. He denied the suggestion
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of the appellants that he mechanically held the post mortem examination. Such
suggestion does not have any probative value in absence of materials to
substantiate the suggestion. Doctors' evidence is unflinchingly corroborated by
the inquest report [Exbt.2] and the oral evidence of PW-18 who held the inquest.
[10] The inquest report [Exbt.2] prepared by the investigating officer
[PW-18] at the spot also indicates that during inquest, deep wound was found in
the head of the deceased and blood was oozing out from his ear and nose. This
apart, it was also stated in the inquest report that there were external injury marks
all over his body.
During cross examination of the investigating officer who held the
inquest, appellants did not dispute the findings recorded in inquest report
[Exbt.2].
[11] The post mortem examination report [Exbt.6] read together with the
inquest report [Exbt.2] and the evidence of doctor [PW-14] has successfully
proved that death of the deceased was homicidal in nature which resulted from an
incident of assault.
[12] As to the involvement of the appellants in the said assault of the
deceased, Ms. Saina Urang [PW-1] aged 16 years told the trial court that at about
10 O'clock in the night she heard her father crying for help. Following the cry of
her father she along with the sister [PW-17] of her mother rushed to the spot and
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noticed the appellants along Mohan Urang were assaulting his father with a lathi.
She tried to rescue her father from his assailants but the assailants having
terrorized her, she along with her aunt [PW-17] returned to their uncle Narayan
Urang [PW-15] and informed him that the appellants were assaulting his father.
Along with her uncle they returned to the spot and found her father lying dead.
She also stated in her examination in chief that about 4/5 years back, his deceased
father assaulted accused Mohan Urang but she was not aware of the reason as to
why her father assaulted Mohan Urang. The PW stated that his father used to
work in Murticherra tea estate where the appellants were also engaged as tea
garden labourers.
The appellants tried to impeach her evidence in cross examination.
She stated in her cross examination that when she and her aunt Jaba Urang [PW-
17] arrived at the place of occurrence there were none other than her father and
his three assailants. It was suggested to her that she could not identify the
assailants of his father during night because it was not a moonlight night. She
denied the suggestion. It was also suggested to her that out of political enmity and
out of previous enmity between Mohan Urang and her father, accused Mohan
Urang, his appellant brother Sunil Urang and his son Rajesh Urang were falsely
implicated in the case. The said suggestion was also denied by the PW. A critical
examination of her evidence would reveal that appellants could not shake her
evidence to any extent by cross examination. She stuck to her statement that the
appellants along with Mohan Urang killed her father by assaulting him.
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[13] Having turned to the evidence of PW-17 who is the other eye
witness of this case we find that she along with PW-1 rushed to the place of
occurrence following the cry of the deceased and found the appellants along with
Mohan Urang were assaulting the deceased with dao and lathi near the house of
Jadu Lal Urang. She stated that she could identify the assailants of the deceased
in moonlight. She along with the daughter [PW-1] of the deceased tried to prevent
the accused persons from assaulting the deceased. Since they paid no heed to their
request, they met Narayan Urang, brother of the deceased and informed him
about the occurrence. When they returned to the spot along with Narayan Urang
and others, Raju Urang already died and his body was lying there. None of the
accused was found there at that time. Police was informed immediately. Police
came and removed the body to hospital.
Nothing could be extracted from her during cross examination to
impeach her examination in chief. A few suggestions were made to her on behalf
of the appellants. It was suggested to the PW that she implicated the appellants
since they belonged to Congress party and she was a supporter of CPI(M) party.
The said suggestion was denied by the PW. It was also suggested to her that she
did not see the appellants assaulting Raju Urang and she did not also try to
prevent them from assaulting Raju Urang. All these suggestions were denied by
the PW.
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As such, her evidence could not be demolished by the appellants in
cross examination. No material has been brought on record to disbelieve her
evidence. She has lent a consistent and corroborative support to the evidence of
PW-1 with regard to the fact that she and PW-1 witnessed the appellants and
Mohan Urang assaulting the deceased and immediately thereafter he was found
dead.
[14] Evidently, there is no other eye witness to the case. Sri Jadu Lal
Urang [PW-16] came to the spot after the occurrence and found Raju Urang lying
dead. Similarly Sri Ruplal Urang [PW-3] also told that when he arrived at the
spot he found Raju Urang lying dead. The Gram Pradhan namely, Prasenjit Goon
[PW-13] informed the police. Police came and removed the body to hospital.
[15] Sri Dharanjit Urang [PW-4] also saw the dead body of the deceased
immediately after the occurrence.
[16] Sri Tharka Urang [PW-5] is a seizure witness who signed the
seizure list as a witness after police seized the wearing apparels of the deceased.
[17] Question may arise as to why wife of the deceased did not rush to
the spot despite hearing the cry of her husband particularly when her daughter
[PW-1] and sister [PW-17] rushed to the spot from the same house.
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[18] Smt. Baishakhi Urang [PW-6], wife of the deceased removed the
doubts by saying that she recently delivered a child and due to delivery she was
very feeble at that time. She stated that she also heard her husband crying.
Immediately, her daughter Saina and her sister Jaba rushed to there. After lapse of
few minutes, the horrified PW left for the place of occurrence. Near the house of
Jadu Lal Urang she saw a large gathering of local people including her daughter
Saina and her sister Jaba and her brother in law Narayan Urang and others. Her
daughter informed her that the appellants along with Mohan Urang had killed her
husband. She also stated that 5/6 years back her husband and accused Mohan
Urang assaulted each other over a land dispute and following that occurrence
Mohan Urang lodged a case against her deceased husband and her husband was
in custody for a few days during investigation of the case.
In her cross examination, she denied the suggestion that she falsely
implicated the appellants and the other accused persons in the case.
[19] Sri Rabi Urang [PW-7] is the cousin brother of the deceased. At
about 10 O'clock in the night on 02.07.2012, Saina [PW1] and Jaba [PW-17] met
him at his house and called him. He was then sleeping. He woke up from sleep
when Jaba and Saina told him that the appellants were assaulting Raju Urang near
the house of Jadu Urang. The place of occurrence was at ten minutes' walking
distance from his house. He went there along with Saina and Jaba and found Raju
Urang lying dead.
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In his cross examination, he stated that he belonged to CPI(M) party
but the accused were supporters of Congress party. It was suggested to the PW
that Saina and Jaba did not inform him about the occurrence. The PW denied the
suggestion. His evidence lends circumstantial support to the fact that PW-1 and
PW-17 namely, Saina and Jaba who witnessed the occurrence and immediately
informed their neighbours including the PW about the attack on the deceased.
Following the information, the PW visited the place of occurrence and found the
deceased lying dead.
[20] Sri Tapash Sukla Baidya [PW-8] was informed about the
occurrence by the local Panchayat Pradhan and he was requested to visit the place
of occurrence. The PW rushed to there and on arrival he noticed a large gathering
where Raju Urang was lying dead with cut injury on his head and other parts of
his body. Police came and prepared a report. The PW identified his signature on
the inquest as [Exbt.2/1].
[21] The evidence of Sri Anukul Mallakar [PW-9] is not significant.
However, it is relevant to the extent that he received the FIR of this case at
Kailashahar police station and based on the said FIR, he registered the case and
endorsed the matter for investigation to Biswajit Debbarma [PW-18].
His cross examination was declined by the accused.
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[22] Similarly, evidence of Sri Uttam Kumar Datta [PW-10] is not of
much relevance. He is a seizure witness in whose presence police seized the
wearing apparels of the deceased after his post mortem examination was over.
[23] Sri Sankar Sharma [PW-11] shifted the dead body of Raju Urang
from the crime scene to RGM hospital for post mortem examination and after
post mortem examination he handed over the dead body to his kin.
[24] Sri Santosh Kumar Dubey [PW-12] is a neighbour of the deceased.
He went to the spot after receiving information about the occurrence. At the
request of Narayan Urang, brother of the deceased he wrote the FIR on behalf of
said Narayan Urang [PW-15] and submitted it to police.
In his cross examination, it was suggested to him that he conspired
with Narayan Urang [PW-15] and authored a false and fabricated FIR against the
appellants. He denied the suggestion.
[25] The evidence of Sri Prasenjit Goon [PW-13] also goes to state that
he was the Panchayat Pradhan of Samrur Gao Panchayat at the material time. At
about 10.30 pm on 02.07.2012, Narayan Urang, brother of the deceased informed
him over telephone that his brother was killed. He informed the matter to police.
When police appeared, he was also called to there. Thereafter, he accompanied
the police team to the place of occurrence.
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[26] The evidence of Dr. Debasish Bhadra [PW-14] who held the post
mortem examination has already been discussed above.
[27] Sri Narayan Urang [PW-15] is the elder brother of the deceased
who lodged the FIR. In his examination in chief, he stated that at the material
time he found his deceased brother lying on road with injuries in front of the
house of Jadu Lal Urang. He did not see the assailants of his deceased brother. At
the instance of prosecution lawyer, the witness was declared hostile and he was
cross examined by the prosecution lawyer.
In his cross examination he stated that daughter of the deceased and
sister in law of the deceased did not meet him and tell him that his brother Raju
was being assaulted by the appellants. This statement of him does not appear to
be true because most of the witnesses stated that they came to know about the
occurrence from him and they saw him at the spot after they arrived there.
[28] Sri Jadu Lal Urang [PW-16] in front of whose house the occurrence
took place also stated that he was sleeping at home at the material time. Having
heard hue and cry he woke up from sleep and came out of his house. He saw that
the deceased was lying injured in front of his house. The PW was also declared
hostile at the instance of the prosecution and he was cross examined by the
prosecution lawyer.
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In his cross examination, the PW stated that he did not see the
appellants and the other accused assaulting the deceased.
[29] The evidence of Smt. Jaba Urang [PW-17] who is the sister in law
of the deceased has already been discussed.
[30] SI Sri Biswajit Debbarma [PW-18] is the investigating officer who
stated in his examination in chief that he conducted the inquest and prepared the
inquest report [Exbt.2]. Thereafter, he examined the witnesses and recorded their
statements under section 161 Cr.P.C. He prepared hand sketch map of the crime
scene along with an index thereof indicating the material locations at the map. He
also seized the wearing apparels of the deceased and in the course of investigation
he arrested accused Mohan Urang and his brother Sunil Urang. Accused Rajesh
Urang surrendered in court. According to the PW, all the accused persons were
absconding to evade police arrest.
In his cross examination, the PW stated that despite interrogation of
the accused persons in police custody, he could not recover the weapon of
offence. It was also stated by him in his cross examination that accused Mohan
Urang was hospitalized on the date of occurrence for treatment of injury.
[31] Learned counsel appearing on behalf of the appellants contended
that the evidence of the investigating officer demonstrated that Mohan Urang, one
of the FIR named accused persons, sustained injury and he was hospitalized due
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to the injury and since prosecution could not offer any explanation as to how the
accused sustained such injury, the prosecution case has become doubtful and the
benefit of doubt should be given to the accused persons.
[32] It is true that non explanation of injuries sustained by accused
affects the prosecution case. But in this context the Apex Court in Dashrath alias
Jolo & Anr. Vs. State of Chhattisgarh reported in (2018) 4 SCC 428; AIR 2018
SC 1133 has succinctly held that there is no invariable rule that whenever an
accused sustains injury from the same occurrence, the prosecution is obliged to
explain the injury and on failure of the prosecution to do so, the prosecution case
should be disbelieved. It is held by the Apex Court that non explanation of the
injury by the prosecution may affect the prosecution case only when the court is
satisfied that the injury caused was of serious nature and such injury was caused
at the time of occurrence.
[33] In the present case, no prosecution witness has told anything about
such injury allegedly sustained by the accused. No evidence is led about the
nature and extent of injury and as to how such injury was caused to the accused.
Only the investigation officer stated during his cross examination that he could
not arrest accused Mohan Urang immediately after the occurrence because he was
hospitalized and said Mohan Urang was arrested only after he was discharged
from hospital. During his cross examination it was stated by him that said Mohan
Urang was hospitalized due to injury. No material is made available on record to
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hold that the injury sustained by said Mohan Urang was serious in nature or such
injury was received by him from the said occurrence. Even during their
examination under section 313 Cr.P.C, the appellants did not focus any light on
this aspect. Nowhere they stated that accused Mohan Urang was assaulted by the
deceased or he received such injury while he was defending him from the assault
of the deceased in exercise of his right to private defence. In such situation, injury
of Mohan Urang is of no relevance.
[34] Further contention raised by the counsel of the appellants is that the
two eye witnesses on the basis of whose evidence the appellants have been
convicted and sentenced were members of the family of the deceased and they
were partisan witnesses and the courts below should not have convicted the
appellants on the basis of their statement. In this regard, the Apex Court in Ashok
Kumar Pandey Vs. State of Delhi reported in (2002) 4 SCC 76; AIR 2002 SC
1468 has observed that it is well settled that evidence of a witness cannot be
discarded merely on the ground that he is either partisan or interested or both, if
otherwise, the same is found credible. [Emphasis supplied].
[35] In a later decision in Ganapathi & Anr. Vs. State of Tamil Nadu
reported in (2018) 5 SCC 549; AIR 2018 SC 1635, the Apex Court held that
relationship is not a factor to affect the credibility of a witness if his evidence is
found otherwise reliable. Observation of the Apex Court in this regard is as
under:
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"15. Merely because the eyewitnesses are family members their
evidence cannot per se be discarded. When there is allegation
of interestedness, the same has to be established. Mere
statement that being relatives of the deceased they are likely to
falsely implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent and credible. Relationship
is not a factor to affect credibility of a witness. It is more often
than not that a relation would not conceal actual culprit and
make allegations against an innocent person. Foundation has
to be laid if plea of false implication is made [Maranadu v.
State (2008) 16 SCC 529]."
[36] In view of the ratio decided by the Apex Court in the judgments
cited to supra, merely because PW-1 & PW-17 were the family members of the
deceased, their evidence cannot be discarded particularly when the PWs have
given very consistent, corroborative and coherent statements before the trial court
supporting the fact that following the cry of the deceased who is the father of
PW-1, both of these witnesses rushed to the spot and saw with their own eyes that
the appellants along with accused Mohan Urang were assaulting the deceased.
The helpless witnesses having failed to save the deceased from his assailants then
rushed to PW-15 for help. PW-6, wife of the deceased has also supported the fact
that she sent her daughter Saina [PW-1] and sister Jaba [PW-17] when she heard
her husband crying. The PW herself could not go because she recently delivered a
baby but when she saw that her daughter and sister were not returning, the
worried PW despite her difficulties left her home for the place of occurrence
where she saw her husband lying dead. Even though counsel of the appellants
tried to contradict PW-1and PW-17 with their previous statements recorded under
section 161 Cr.P.C, no such contradiction was recorded as per procedure and no
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such contradiction was marked during trial for confirmation by the investigating
officer. Otherwise also, for such minor discrepancies, the evidence of these two
PW's could not be discarded particularly in view of the fact that they have given
very clear, clinching and trustworthy evidence.
[37] Counsel appearing for the appellants also raised objection about the
non recovery of the weapon of offence. It was contended by Ms. R. Purkayastha,
learned counsel that for non recovery of the alleged weapon of offence and for
non production of the same during trial and in absence of any explanation from
the side of the prosecution with regard to said non recovery and non production of
the weapon of offence, prosecution case should have been disbelieved and the
accused appellants should have been given the benefit of doubt by the learned
trial court.
[38] It is true that non production of the weapon allegedly used by the
accused in committing the offence and absence of explanation from the side of
the prosecution about such non recovery is an omission on the part of the
prosecution but for such omission the entire prosecution case cannot be
disbelieved particularly when there is direct and unimpeachable evidence of eye
witnesses. The Apex Court in Sudha Renukaiah & Ors. Vs. State of Andhra
Pradesh reported in (2017)13 SCC 81;AIR 2017 SC 2124, held that mere non
showing of the weapon of offence to the post mortem doctor at the time of his
deposition before the trial court was inconsequential and in no manner weakens
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the prosecution case when there is concurrent finding of the trial court and High
Court as regards homicidal death of the deceased based on the testimony of the
post mortem doctor coupled with the evidence of other witnesses.
[39] In a later decision in the case of Mritunjoy Biswas Vs. Pranab alias
Kuti Biswas & Anr. reported in (2013) 12 SCC 796, the Apex Court having
reiterated the ratio decided in earlier cases also held that where there is ample,
unimpeachable ocular evidence corroborated by medical evidence, non recovery
of the weapon of offence does not affect the prosecution case. Said observation of
the Apex Court is as under:
"34. In Lakshmi v. State of U.P [(2002) 7 SCC 198] this Court
has ruled that: (SCC p.205, para 16)
"16. Undoubtedly, the identification of the body, cause of death
and recovery of weapon with which injury may have been
inflicted on the deceased are some of the important factors to
be established by the prosecution in an ordinary given case to
bring home the charge of offence under Section 302 IPC. This,
however, is not an inflexible rule. It cannot be held as a
general and broad proposition of law that where these aspects
are not established, it would be fatal to the case of the
prosecution and in all cases and eventualities, it ought to result
in the acquittal of those who may be charged with the offence
of murder. It would depend on the facts and circumstances of
each case. A charge of murder may stand established against
an accused even in absence of identification of body and cause
of the death."
35. In Lakhan Sao v. State of Bihar [(2000) 9 SCC 82] it has
been opined that: (SCC p.87, para 16)
"18. The non-recovery of the pistol or spent cartridge does not
detract from the case of the prosecution where the direct
evidence is acceptable."
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36. In State of Rajasthan v. Arjun Singh [(2011) 9 SCC 115]
this Court has expressed that: (SCC p.122, para 18)
"18...........mere non-recovery of pistol or cartridge does not
detract the case of the prosecution where clinching and direct
evidence is acceptable. Likewise, absence of evidence regarding
recovery of used pellets, bloodstained clothes, etc cannot be
taken or construed as no such occurrence had taken place."
Thus, when there is ample unimpeachable ocular evidence and
the same has been corroborated by the medical evidence, non-
recovery of the weapon does not affect the prosecution case."
[40] As discussed, PW-1 and PW-17 by their convincing, coherent and
clinching evidence established the fact that the two appellants along with Mohan
Urang assaulted the deceased and immediately thereafter his dead body was
recovered from the place exactly where the appellants were found assaulting him.
Their evidence is also supported by the circumstantial evidence of the other
witnesses who discovered the dead body of the deceased at the place of
occurrence immediately after the occurrence. The autopsy surgeon [PW-14] who
held the post mortem examination of the deceased also proved the post mortem
examination report at the trial and confirmed that death of Raju Urang was
homicidal in nature. The injuries, external and internal, detected during the said
post mortem examination also confirmed that it was a homicidal death. In these
circumstances, for minor discrepancies in the evidence of the prosecution
witnesses and for some omissions on the part of the investigating agency not
creating any doubt in the mind of the court, entire prosecution case cannot be
disbelieved and appellants cannot be let off from the charge of murder.
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[41] Commenting on the effect of unmerited acquittal, the Apex Court in
the case of Shivaji Sahabrao Bobade & Anr. Vs. State of Maharastra reported in
(1973) 2 SCC 793; AIR 1973 SC 2622 made the following observation:
"6................... The evil of acquitting a guilty person light
heartedly as a learned author(1) has sapiently observed, goes
much beyond the simple fact that just one guilty person has
gone unpunished. If unmerited acquittals become general, they
tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions
against indicted 'persons' and more severe punishment of those
who are found guilty. Thus, too frequent acquittals of the guilty
may lead to a ferocious penal law, eventually eroding the
judicial protection of the guiltless. For all these reasons it is
true to say', with Viscount Simon, that "a miscarriage of
justice may arise from the acquittal of the, guilty no less than
from the conviction of the innocent.........". In short, our
jurisprudential enthusiasm for presumed innocence must be
moderated by the pragmatic need to make criminal justice
potent and realistic."
[42] Therefore, considering the nature of offence committed by the
appellants and the evidence available on record, particularly the eye witness
version of PW-1 and PW-17 supported by the medical evidence of PW-14 and the
circumstantial evidence of the other witnesses and in the light of the ratio decided
by the Apex Court in the judgments cited to supra, we are of the considered view
that guilt of the appellants was proved at the trial beyond reasonable shadow of
doubt and the learned trial court by a reasoned judgment rightly convicted the
appellants and sentenced them to imprisonment for life for the charge of murder
punishable under section 302 IPC. We find no reason to interfere with the
impugned judgment.
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[43] In terms of the above, both the appeals are dismissed. The
appellants who are in jail shall serve out the sentence.
Send down the LCR. Pending application(s), if any, shall also stand
disposed of.
(S.G. CHATTOPADHYAY, J) (ARINDAM LODH, J)
Rudradeep
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