Sri Shetoi Sema vs The State Of Tripura
2021 Latest Caselaw 571 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA
                             CRL. A.(J) 27 of 2019
 Sri Shetoi Sema,
 son of Sri Akhabi Sema, resident of Mongsu Mog Para,
 P.S. Santirbazaar, District- South Tripura
 (now undergoing imprisonment in Kendriya Sansodhanagar,
 Bishalgarh, District- Sepahijala, Tripura)
                                                   ----Appellant(s)
               Versus
 The State of Tripura                        ----Respondent(s)

For Appellant(s) : Mr. S. Bhattacharjee, Legal Aid Counsel For Respondent(s) : Mr. S. Debnath, Addl. PP Date of hearing : 28.04.2021 Date of delivery of judgment & Order : 19.05.2021 Whether fit for reporting : Yes BEFORE HON'BLE THE CHIEF JUSTICE AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH Judgment & Order (Arindam Lodh, J.) This appeal has been directed against the judgment and order of conviction and sentence dated 11.02.2015 passed by the learned Sessions Judge, South Tripura, Belonia in case No. S.T. 23 (ST/B) of 2014 whereby and whereunder the appellant was sentenced to undergo rigorous imprisonment for LIFE and to pay a fine of Rs. 5,000/- with default stipulation for the offence punishable under section 302 IPC and also sentenced to suffer rigorous imprisonment for 3 (three) years alongwith a fine of Rs. 2,000/- with default stipulation for the offence punishable under Section 201 IPC.

2. The prosecution case, as projected by the learned Sessions Judge, may be set forth hereunder:

2.1. One Smt. Prabha Reang (Bhowmik) lodged a written ejahar on 16.01.2014 at 1425 hours to the Santirbazar P.S. inter alia, stating that on that Page 2

date at about 10 a.m. while she came to Manpathar Bazaar she came to know that her husband Dipak Bhowmik, who was working as police constable in the Police department, Sabroom was murdered and the dead body of her husband was lying in the rubber corporation garden situated at Mangsu Mog Para. She also stated that some miscreants had committed the offence.

2.2. The aforesaid complaint was registered vide Santirbazaar PS case No. 03 of 2014 under sections 302/34 IPC. Investigation was carried out. The investigating officer recorded the statements of various witnesses and collected material objects and apprehended the appellant. After completion of investigation, the investigating officer filed charge-sheet under Section 302/34 IPC against the appellant and one Sunil Chakma (now deceased). After commitment, the learned Sessions Judge had framed charge against the appellant under Sections 302/201 IPC, to which the appellant pleaded not guilty and claimed to be tried.

2.3. In course of trial, the prosecution examined as many as 22 witnesses and introduced material objects and documents, marked as exhibits, on proof. The arguments, as advanced by the learned counsel appearing for the parties, were heard and on being considered, the learned Sessions Judge convicted and sentenced the appellant, as aforestated.

3. Feeling aggrieved and dissatisfied with the said judgment and order of conviction and sentence, the convict-appellant has preferred the instant appeal before this Court.

4. While deciding the charges levelled against the convict-appellant, the learned Sessions Judge had taken into consideration the following points:

"(i) Whether the accused person on or about the 15.01.2014 to 16.01.2014 at anytime at Mangsu Mog Para under Santirbazar police station did commit murder by intentionally causing the death of Dipak Bhowmik?

(ii) Whether the accused person on or about the same date, time and place, knowing or having reason to believe that certain offence to wit murder, Page 3

punishable with imprisonment for life or death, having been committed, did cause certain evidence of the said offence to disappear, to conceal the dead body of Dipak Bhowmik in the rubber plantation jungle, with intention of screening the offender i.e. yourself from legal punishment?"

5. We have perused the findings and reasonings arrived at by the learned Sessions Judge in convicting and sentencing the appellant.

6. As we have seen, the conviction of the appellant is mainly based upon the "principle of last seen together", as surfaced from the prosecution witnesses. In view of this, let us make a survey of the evidences and materials brought on record, to test the sustainability of the findings of guilt and the conviction thereof, as held by the learned Sessions Judge.

7. PW-4, PW-6, PW-7, PW-8, PW-9, PW-10, PW-14, PW-18 and PW- 21, are relevant witnesses to the facts in issue relating to the "last seen together" theory and other ancillary circumstances.

7.1. Firstly, PW-6, Sri Abuiya Chakma, deposed that he alongwith other villagers on 16.01.2014 having heard a dead body was found in the rubber garden went there and came to learn that it was the dead body of Dipak Bhowmik, a constable, who was known to him as husband of Prabha Reang (the informant) of their village. Noticeably, at that time itself, PW-6 had passed on a valuable information to police officials that on 15.01.2014 at about 11.30 am, he had seen Dipak Bhowmik proceeding towards the house of Sunil Chakma, one of the accused (now dead). He further deposed that on the same day at about 3.30 pm (afternoon) he found Dipak Bhowmik, Sunil Chakma and Shetoi Sema together at Madhu Chandra Chakma para and they were proceeding towards the Takma Bazaar. On the same date at 9.00 pm (night), Sunil Chakma, Shetoi Sema and Dipak Bhowmik came to his house Page 4

when Sunil Chakma asked him to provide country made liquor, which he provided to them. Thereafter, they went away. After seeing the dead body on 16.01.2014, PW-6 disclosed that the „woolen chaddar‟ that was found nearby the dead body was being used by Shetoi Sema and the wrist watch belonged to Sunil Chakma.

7.2. PW-4, Sri Uttam Debbarma, while deposing before the court stated that at the spot itself, he heard from Abuiya Chakma (PW-6) that on the previous night, Shetoi Sema, Sunil Chakma and Dipak Bhowmik went to his house to bring country made liquor. He also deposed that Shetoi Sema was known to him as he was a surrendered Naga extremist.

7.3. PW-18, Amir Hossain, supporting the version of PW-6, deposed before the court that he had seen Dipak Bhowmik, Shetoi Sema and Sunil Chakma proceeding towards south Takmacherra market. Thereafter, at about 7.00 pm, he noticed that Shetoi Sema was quarreling with Dipak Bhowmik who had given a fist to Dipak Bhowmik. PW-18, asked them why they had been quarreling, when Shetoi Sema told him that Dipak Bhowmik demanded Rs. 500/- from him and threatened that if he does not pay Rs. 500/, then, he would be arrested by police. PW-18, further deposed that he tried to pacify them consequent to which they went away. On the following day i.e. on 16.01.2014 in the afternoon, he heard that Dipak Bhowmik was killed. He further deposed that after the incident, Sunil Chakma and Shetoi Sema had absconded and on 20.01.2014 he heard that Shetoi Sema was arrested by police from Garji and hearing the news of his arrest, Sunil Chakma had committed suicide. The said witness had confirmed that Shetoi Sema was a surrendered extremist.

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7.4. Again, we find that PW-21, Smt. Chimraching Mog, deposed that on 15.01.2014, at noon time, Sunil Chakma accompanied by one Bengali police and one surrendered extremist, namely, Sema, came to her house and they asked for country liquor. She told them that it was not available. All of them went away, but, again they came with bottle of country liquor and they consumed sitting in her courtyard. Thereafter, they left, but, in the evening time they again came to her house and requested her to cook meat, which she refused. But, they themselves cooked the meat and she helped them in preparing the spices. They also brought country liquor and consumed the same sitting in her courtyard. She further deposed that while they were sitting in her house, at that time, the Bengali police told her that Sema had assaulted him by fist and blow. She asked, why Sema assaulted him, when the Bengali police told her that he asked for Rs. 500/- from Sema. He also threatened him to arrest.

7.5. What have been crystallized from the deposition of PW-6, PW- 4, PW-18 and PW-21, that since noon time of 15.01.2014, both the accused persons, namely, Shetoi Sema (the appellant herein) and Sunil Chakma (now deceased) alongwith deceased Dipak Bhowmik, the husband of the informant were seen together. They went to the house of PW-18 for consuming liquor which was not available in her house. At about 3.30 pm, afternoon, PW-6 had seen all of them together proceeding towards Takmacherra bazaar. PW-18, also had seen them in the afternoon of 15.01.2014 proceeding towards Takmachara market. He also had seen Shetoi Sema quarreling with Dipak Bhowmik at about 7.00 pm for Rs. 500/-. He had pacified them and, accordingly they went away. All of them again went to the house of PW-21 in Page 6

the evening time when they consumed liquor at her courtyard and requested her to cook meat and on her refusal, they themselves cooked meat, though she had prepared the spices. She was informed by the Bengali police i.e. Dipak Bhowmik, that Shetoi Sema had assaulted him by fist as he had demanded Rs. 500/- from him. In furtherance thereof, from the evidence of PW-6, it reveals that on 15.01.2014 at 9.00 pm (night) all of them went to his house and demanded country liquor. He provided country liquor to them and they went away.

(a)

7.6. We have taken into account the aforesaid circumstances, as the „first episode', for convenience.

8. To start with the next episode, we find that PW-7, Dickson Chiru, deposed that on 15/16.01.2014 at night at about 12.30 am (dead night) Sunil Chakma and Shetoi Sema, the appellant herein, knocked the door of his room and after opening he found the blood soaked hands of Shetoi Sema when they confessed that they had killed one Bengali constable. Shetoi Sema asked for water to his wife for cleaning his hands and feet which his wife had given. The name of his wife is Paiu Mog (PW-8). He further deposed that on the following morning, he heard that dead body of Dipak Bhowmik was lying in the rubber garden of the corporation. Interestingly, he identified the „woolen chaddar‟ which Shetoi Sema used to wear and the wrist watch was being used by Sunil Chakma, who committed suicide.

8.1. PW-8, Smt. Paiu Mog, corroborated the versions of PW-7, her husband.

8.2. PW-9, Sri Abu Mog, deposed that accused Shetoi Sema was staying in the house of PW-7 as a tenant and PW-7 was his brother-in-law. He went to the house of PW-7 on 15.01.2014 and stayed there on that night. He Page 7

further deposed that he heard that PW-7 and his mother were scolding Shetoi Sema, the appellant herein.

8.3. PW-10, Sri Devid Zeling, deposed that on 16.01.2014 at about 9.30 am when he went to the house of Dickson Chiru (PW-7), he found Shetoi Sema was sleeping in that house. The wife of Dickson Chiru i.e. PW-8 told him that on yesterday night Shetoi Sema and Sunil Chakma came to their house with blood soaked hands and feet. PW-10 was further informed by PW- 8 that both Sunil Chakma and Shetoi Sema had confessed before them that they had killed one police constable and they also asked for water for cleaning their hands and feet which PW-8 had given them.

8.4. PW-14, Sri Kamal Mog, deposed that on 17.01.2014 he came to know from Paiu Mog (PW-8) that on the night of 15.01.2014 her tenant boy came in her house on late night with having mud on his body.

8.5. The aforesaid circumstances may be considered as the "second episode", for convenience in our effort to consolidate the entire chain of circumstances connecting the appellant to the crime.

9. Next circumstance began, when the police went to the rubber garden of the corporation, in response to a telephonic information from one Birmani Debbarma that a dead body was lying in the said rubber garden. The said information was entered into GD being No. 295 dated 16.01.2014. The information was passed on to SDPO and Officer-in-Charge of Santirbazaar police station. The dead body was identified by Smt. Prabha Reang Bhowmik (PW-2), the wife of the deceased Dilip Bhowmik. Inquest of the dead body was conducted and the report (Exhibit 3/2) was prepared. On search, some articles, such as, one woolen chaddar, one handkerchief, one golden wrist watch and one hand bag were recovered. Handsketch map with index were prepared (Exhibit 8 and 9 respectively) Page 8

10. If we look back to the evidences of PW-3, PW-6, PW-7, PW-9, PW- 10, then, it comes to light that the „woolen chaddar‟ and the wrist watch (Exhibit MO-2 series) were being used by Shetoi Sema, the appellant herein and Sunil Chakma, the deceased-accused, respectively. Since the articles were identified by PW-3, PW-4, PW-5, PW-6, PW-9, PW-12 and PW-13 (two police constables), these circumstances of recovery of wearing apparels (Exhibit MO-2 series) from the place of occurrence, and subsequently, confirmation by the prosecution witnesses, may be considered as the 'third episode', for convenience.

11. Next, coming to the consideration of the medical evidence, we find that PW-16 and PW-17 conducted the post-mortem of the deceased where they opined that the cause of death was due to fatal intracranial hemorrhage that might have occurred due to infliction with blunt and heavy object. The report, as a whole, was marked as Exhibit-6.

12. PW-22, Sri Sadhan Majumder, the Investigating Officer in his examination-in-chief has stated that in the forensic report the result was that the blood stained found in the 'woolen chadar' which was used by the accused Shetoi Sema was found matching with the blood stain collected from the deceased. Another important feature that comes out from the post-mortem report is that the time of death was between 28 to 36 hours, and time of post- mortem examination was 1.20 pm of 17.01.2014. So, from the medical evidence, it is crystal clear that the deceased Dipak Bhowmik was killed in the intervening night of 15.01.2014 to 16.01.2014. Next striking point that has been surfaced in the case in hand, is that, the appellant in reply to question no. (22), during his examination under Section 313 Cr.P.C. has substantially admitted the circumstances narrated at „first episode' and 'second episode'. Question no. (22) and the answer may be reproduced here-in-below, in verbatim, for convenience:

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"Q. No. 22. PW-21, Smt. Chimraching Mog deposed that the incident took place on 15.01.14 and on that date in the noon time you, Sunil Chakma and one Bengali police came to her house and asked for country made liquor to her but she told that there is no liquor available in her house. Thereafter, you and others went away and again came with bottle of country made liquor and consumed country made liquor sitting in her courtyard. In the evening time, all of you were again came to her house and requested her to cook meat but she refused to cook. Thereafter, you were cooked the meat and she also helped you in preparing spice and at that time you were also brought country made liquor and consumed the alcohol sitting in her courtyard. While all of you were sitting in her house, at that time, Bengali police told her that you assaulted him by fist then she asked, why you assaulted him then Bengali police told her that he asked for Rs. 500/- from you and also threatened him saying that he will catch you for police arrest. What do you want to say about the above evidence of the prosecution witness?

Ans. Partly true. I did not assault Bengali Police and he did not ask for Rs. 500."

The question no. (8) and question no. (9) of the examination of the appellant under Section 313 Cr.P.C. and the answer thereof are also relevant, which are reproduced here-in-below, for convenience:

"Q. No. 8. PW-6, Sri Abuiya Chakma deposed that on 16.01.2014 at about 9 a.m. while he was going towards his house nearby the rubber garden of Mangsu Mog Para found a gathering and also a dead body was lying there. At that time, Member Bishu Debbarma told that it was the dead body of Dipak Bhowmik who was a constable. PW-6 knew Dipak Bhowmik as husband of Prabha Reang of his village. He also told darogababu that on the previous day (15.01.14) at about 11.30 a.m. he found Dipak Bhowmik was proceeding towards the house of Sunil Chakma and on the same day at about 3.30 p.m. (afternoon) he again found Dipak Bhowmik, Sunil Chakma and you together at Madhu Chandra Chakma Para were proceeding towards the Takma Bazaar. On that date at 9 p.m. you, Sunil Chakma and Dipak Bhowmik came to his (PW-6) house and Sunil Chakma asked him (PW-6) to give him country made liquor, accordingly PW-6 gave country made liquor and all of you went away. On spot i.e. on 16.01.14 PW-6 found one woolen chadar, one golden colour wrist watch, one handkerchief and black coloured bag were lying nearby the dead body. The woolen chadar was being used by you.

What do you want to say about the above evidence of the prosecution witness?

Ans. Partly true. I did not use the woolen chadar."

"Q. No. 9. PW-7, Sri Dickson Chiru deposed that on 15.01.2014 at night at about 12.30 am (dead night) you and Sunil Chakma knocked the door of his room and PW-7 opened the door and found there was a blood stained and mark in your hands and they told that they had killed one Bengali constable. Then PW-7 asked both of you why you have come to his house in this dead night. Thereafter, you asked water to the wife of PW-7 for cleaning your hands and feet and his wife gave you water. On the following morning PW-7 heard the dead body of Dipak Page 10

Bhowmik was lying in the corporation rubber garden and he find a woolen chadar which was being used by you, a golden wrist watch which was belong to Sunil Chakma and handkerchief and a black coloured bag was lying near the spot where the dead body was found.

What do you want to say about the above evidence of the prosecution witness?

Ans. Partly true. But I did not tell that I have killed one Bengali constable. I went to his house as I was his tenant."

So, the episodes that we have discussed in 'first episode' and 'second episode' have been substantially admitted by the convict-appellant.

13. Now, on overall assessment of the evidences and materials on records, if the circumstances, as surfaced in the 'first and second episode‟ coupled with the „third episode', it can safely be inferred that the deceased Dipak Bhowmik was seen together with Shetoi Sema, the appellant herein and Sunil Chakma (another accused, now deceased) since 11.30 am (noon) to 9.00 pm (night) of 15.01.2014. The appellant could not offer any reasonable explanation about his whereabouts and activities in the intervening period i.e. from 9.00 pm on 15.01.2014 to 12.30 am of 16.01.2014.

14. Another striking feature, the prosecution has been able to establish, is motive. PW-18 had seen the accused-appellant, Shetoi Sema and deceased Dipak Bhowmik were quarreling each other as demand by Dipak Bhowmik who further threatened to even arrest the appellant, if he failed to pay the same. The altercation took such serious turn that the appellant had given a fist to Dipak. Dipak Bhowmik also narrated the said incident to PW-21 which came to fore from the deposition of PW-21.

15. In the case in hand, there was no eye witness and prosecution had sought to establish the case against the appellant from circumstantial evidence. In a case based on circumstantial evidence, it is trite to say that the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established, but, all the circumstances so established should be of conclusive nature and consistent with the hypothesis of guilt of the accused.

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Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Further, it needs to be emphasized that in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning. Reverting to the present case, proven circumstances, if demand of Rs. 500/- (rupees five hundred) only from the appellant by the accused coupled with the threat to arrest him manifestly constitute motive.

16. In that eventuality, it was the liability upon the appellant to come forward with a possible and plausible explanation to shake the prosecution evidences, which the appellant failed to discharge. The medical evidence further corroborates the injuries, as sustained by the deceased. Even, if we do not give any importance to the extra-judicial confession, which the appellant made before PW-7 and PW-8, then also, all the proven circumstances of the principle of „last seen together‟ theory coupled with the corroborative evidences out of recovery of wearing apparels used by the accused persons and the medical evidences give rise to an irresistible conclusion that the appellant and his co-accused, Sunil Chakma were the real perpetrators of the crime. The complicity of the appellant is further fortified by the answer given by him in his examination under Section 313 Cr.P.C., as reproduced here-in- above, which leads us to draw an inference that it was none but the appellant and deceased Sunil Chakma who has committed the gruesome murder of Dipak Bhowmik, the husband of the informant.

17. In view of this, it is very difficult to swallow the submission of Mr. Bhattacharjee, learned legal Aid counsel appearing for the appellant that the circumstances of „last seen together theory‟ has not been established

18. We are in full agreement with the submission of Mr. S. Debnath, learned Additional PP that the deceased Dipak Bhowmik was seen together since noon of 15.01.2014 upto night 9.00 pm and in that situation, it was the Page 12

obligation of the appellant to explain what they did after 9.00 p.m. before their appearance in the house of Dickson Chiru (PW-7) at about 12.30 am on that night, which the appellant failed to discharge.

19. In our ultimate analysis, the prosecution has been able to successfully establish the two circumstances against the appellant, namely, (i) motive and,

(ii) last seen together coupled with all the „episodes‟ as discussed and encapsulated here-in-above.

20. Having viewed thus, the instant appeal preferred by the appellant, Shetoi Sema, stands dismissed, being devoid of merit. The judgment and order of conviction and sentence, recorded by the learned Sessions Judge, is hereby upheld and affirmed.

Send down the LCRs immediately.

         (ARINDAM LODH,) J                                      (AKIL KURESHI), CJ




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