Shri Elash Kumar Debbarma vs State Of Tripura
2022 Latest Caselaw 319 Tri

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                      HIGH COURT OF TRIPURA
                             AGARTALA
                       CRL.A (J) NO.7 OF 2020

 Shri Elash Kumar Debbarma,
 S/o. Lt. Shib Charan Debbarma,
 R/o Utlabari,
 P.S. Champahour,
 Dist:- Khowai Tripura.
                                               -----Appellant(s)

                                 Versus

 State of Tripura.
                                               -----Respondent(s)

For the Appellant(s) : Mr. S. Sarkar, Sr. Advocate.

Ms. P. Chakraborty, Advocate.

For the Respondent(s) : Mr. R. Datta, Public Prosecutor.

Mr. S. Debnath, Addl. P.P.

    Date of hearing               : 09.03.2022.

    Date of delivery of
    Judgment & Order              : 16/03/2022

    Whether fit for reporting     : YES.




                        BEFORE
         HON'BLE MR. JUSTICE T. AMARNATH GOUD
          HON'BLE MR. JUSTICE ARINDAM LODH


                      JUDGMENT & ORDER

(T. AMARNATH GOUD)

This is an appeal filed under Section 374(2) of the

Code of Criminal Procedure, 1973 against the Judgment and

Order of conviction and sentence dated 05.07.2019 passed by

the learned Sessions Judge, Khowai Tripura in connection with

Case No.S.T. No. (T.1)07 of 2018 convicting the accused-

appellant under Section 376 of IPC to suffer rigorous

imprisonment of 10 years and to pay a fine of Rs.5000/- and

with default stipulation and under Section 302 of IPC to suffer

rigorous imprisonment for life and also to pay a fine of

Rs.10,000/- with default stipulation.

2. The brief facts are that Shri Taradhan Debbarma

(father of the deceased), the informant herein lodged an oral

complaint to the O.C. Champahour P.S. stating inter alia that

on 14.01.2018, at about 14.30 hours (2.30 pm) his daughter

who was suffering from insanity left their house to fed cow and

did not return home till evening. Accordingly, they have

searched in all possible places but in vain. On the next morning

i.e. on 15.01.2018 at about 06.30 hrs (6.30 am) one Kepengrai

Debbarma have seen the dead body of the deceased (Malina

Debbarma) of Utlabari in the rubber plantation of one Samir

Debbarma in half-naked condition. Thus, the informant came to

know and seen the dead body of the deceased-daughter.

3. Based on the said FIR/ejahar Champahour P.S. Case

No.2018 CPH 002 dated 15.01.2018 under Section 302 of IPC

was registered and S.I. Samaresh Chakma took up the case for

investigation. After completion of the investigation, he laid a

charge-sheet vide No.06/2018, dated 12.04.2018 under

Section 341/376/302 of Indian Penal Code,1860 against the

accused-appellant, namely, Elash Kumar Debbarma.

4. Upon receipt of the charge-sheet, cognizance of an

offense punishable under Section 341/376/302 of IPC was

taken against the appellant and thereafter the case was

committed to the Court of learned Sessions Judge, Khowai,

Tripura as the case was exclusively trial able by the learned

Sessions Judge, Khowai Tripura.

5. On receipt of the case record on 08.05.2018, learned

Addl. Sessions Judge, Khowai framed charges under Section

341/376/302 of IPC against the accused Elash Kumar

Debbarma which are as follows:-

" Firstly, That, you on or about 14.01.2018 in the afternoon at anytime after 2.30 P.M. in Village- Utlabari, Police Station-Champahaour, District-khowai Tripura in a Rubber garden of Samir Debbarma wrongfully restrained Malina Debbarma and thereby committed an offence punishable under Section 341 of IPC and within my cognizance.

Secondly- That, you on the afore mentioned date, time and place in the afternoon at any time after 2.30 P.M. in the village Utlabari, P.S. Champahour, District-khowai Tripura in the Rubber Plantation of Samir Debbarma committed rape on Malina Debbarma and thereby committed an offence punishable under Section 376 IPC and within my cognizance.

Lastly- That, you on the afore mentioned date, time and place and in village Utlabari, P.S.- Champahour, District-Khowai Tripura in the Rubber Plantation of Samir Debbarma did commit murder by intentionally causing the death of one Malina Debbarma and thereby committed an office punishable under Section 302 of IPC and within my cognizance."

6. After framing the aforesaid charges, the Trial was

commenced. In the course of the Trial, the prosecution has

examined as many as 20(twenty) witnesses and also exhibited

some documents. All the prosecution witnesses were duly

cross-examined by the defense. After the conclusion of the

recording of the evidence of the prosecution witnesses, the

accused was examined under Section 313(1)(b) of Cr.P.C.,

when he denied all the incriminating materials in prosecution

evidence and also expressed unwillingness to adduce evidence

in his defense.

7. To decide the fate of this case, learned Court below

have taken up the following points for decision:-

"i. Whether on 14.01.2018 in the afternoon any time the present accused wrongfully restrained the victim girl in the rubber garden of Samir Debbarma?

ii. Whether on the aforementioned date and place the accused committed rape upon the victim girl?

iii. Whether on the aforementioned date, and place the accused intentionally committed murder of the victim girl?"

8. Having heard the learned counsel appearing for the

parties, the learned Sessions Judge held the accused person

guilty of committing offenses as stated here-in-above.

9. Being aggrieved by and dissatisfied with the aforesaid

conviction and sentence, the convict-appellant has preferred

the instant appeal before this Court and prayed for the

following reliefs:-

"i) Admit the appeal.

ii) Call for the case records of Case No.S.T.(T.1) 07 of 2018 from the Court of learned Sessions Judge, Khowai, West Tripura.

iii) Notify the Public Prosecutor.

AND

iv) After hearing both sides Your Lordship would be kind enough to set aside/quash the impugned order dated 05.07.2019 passed by the learned Sessions Judge Khowai, Tripura."

10. Heard Mr. S. Sarkar, learned Sr. counsel assisted by

Ms. P. Chakraborty, learned counsel appearing for the convict-

appellant as well as Mr. R. Datta, learned P.P. appearing for

the State-respondent.

11. Mr. Sarkar, learned Sr. counsel submitted that the

conviction and sentence passed the learned Trial Court suffers

from illegality, impropriety, and irregularity, and as such the

conviction and sentence is required to be set aside and

quashed.

12. Mr. Sarkar, learned Sr. counsel further contended that

P.W.1, the father of the deceased and also the informant of the

present case deposed categorically before the learned Trial

Court that on 14.01.2018 at about 2.00 P.M. his daughter went

to find out their cattle. But, subsequently, she did not return

home by evening and they guessed that she might have gone

to their relatives' house in the same locality. Subsequently, on

the next day morning one Khepengrai Debbarma(P.W.3)

informed him that one dead body of a girl was lying in the

rubber plantation of Samir Debbarma. Accordingly, he along

with other family members went to the place and found that

the dead body of his daughter was lying there without any

wearing apparel and a pair of slippers was also found lying

there. As deposed by the informant (P.W.1) of the case, on

14.01.2018 deceased went out but did not return home the

whole night. But, the informant was reluctant to find out his

daughter by himself or bring this matter to the notice of the

police which creates serious doubts on the prosecution story

because a girl was missing for the whole night and her inmates

were very much reluctant to trace her out. No attempts were

made on the part of the inmates of the deceased, and they

only guessed that she might have gone to any of the houses of

their relatives. But, surprisingly, the informant did not even

bothered to ask his relative about the deceased and did not

even brought the matter to the notice of any of his relatives to

find out the deceased but the learned Trial Court did not

consider the same.

13. Mr. Sarker, learned Sr. counsel further submits that

P.W.2 deposed before the learned Trial Court that on

15.01.2018 he came to know that the dead body of the

daughter of P.W.1 was found lying in the rubber plantation of

Samir Debbarma. Accordingly, he went to the spot and found

the dead body of the victim lying there, and her wearing

apparel was found lying beside the dead body. He also stated

that his statement was recorded by the police. He further

deposed that the dog squad came there and the said dog

squad identified the convict-appellant going to the house of the

appellant from the spot. But such deposition of P.W.2 totally

contradicts the deposition of P.W.4, P.W-6 of the dog squad of

the CID branch but the learned Trial Court did not appreciated

such facts.

14. P.W.3 deposed that, one morning while he went to the

rubber plantation of one Samir Debbarma he found the dead

body of deceased lying and informed P.W.2. In his cross-

examination, he deposed that, he never made any such

statement to the police which makes the whole deposition of

P.W.3 a first-time statement and improved version, which was

not tenable in the eye of law. But the learned Trial Court did

not consider the same.

15. While passing the judgment and order of conviction

and sentence, the learned Trial Court hypothetically relied upon

the evidence of P.W.8, who deposed before the learned Trial

Court that, a few months back one day when she was returning

home, it was too late and she found the appellant and the

deceased on the village road. Such deposition of P.W.8 does

not throw any light of evidence upon the guilt of the appellant.

But the learned Trial Court did not considered the same.

16. The learned Trial Court below while passing the

judgment and order of conviction and sentence did not

appreciate and considered to cross-examination of P.W.10.

17. From the evidence of P.W.16, it is revealed that no

seminal stain/spermatozoa of human origin were detected by

the learned Trial Court, and without considering the aspects,

the learned Trial Court convicted the present appellant.

18. For the above-mentioned facts, the golden rule of

circumstantial evidence was not followed by the learned Court

below.

19. The owner of the rubber plantation is whose rubber

plantation, the dead body of the deceased was found was not

examined by the learned Trial Court.

20. There are many vital omissions and contradictions in

the deposition of P.W.1,2,3,4,5,7 & 10 but the learned Trial

Court below did not consider the same.

21. Mr. R. Datta, learned P.P. defending the impugned

judgment and order of conviction and sentence relied on the

'last seen together' theory and quoted the deposition of P.W.10

which is reproduced hereunder:-

" On the day of Makar Sankranti I was going to my parents house in the evening, I found Malina Debbarma and Elesh Debbarma over the road approached towards the rubber plantation of Samir Debbarma and it was already 6 p.m............"

22. Mr. Datta learned P.P., thus argued that the statement

of P.W.10, clearly proves the 'last seen together' theory.

23. Learned P.P. further submits before this Court that

though the case is based on circumstantial evidence, but, the

prosecution has been able to establish all the circumstances in

a chain, and especially the DNA report is very much conclusive.

24. In regard to the DNA evidence, learned P.P. has

quoted the evidence of Dr. Subhankar Nath, P.W.18 who is the

Deputy Director of DNA division and he deposed that the

exhibits marked as 6, 7, 10(A), 10(B), 10(C), B, E, 9 receipt

from Rupali Majumder who is the chemical examiner of their

laboratory. Said exhibits were containing light mud like stain

said to be the anal swab of the deceased, a small cotton piece

with very like mud stain said to be the vaginal swab of the

deceased, 3(three) number of cloth pieces with light brown

stain small area to be the wearing apparels of the deceased,

two numbers of pink colored small pieces of cloth with black

stain in small area to be the wearing apparels of the deceased,

4(four) numbers green colored small pieces of cloth with light

black stain in small area to be the wearing apparels of the

deceased, saliva of accused Elesh Kumar collected by Medical

Officer, Khowai in a gauge cloth on 16.01.2018, blood sample

of accused Elesh Kumar and blood sample of deceased victim

collected by Medical Officer, Khowai during post-mortem

examination. All the aforesaid articles were subjected to DNA

extraction by organic extraction method. DNA recovered from

the above exhibits were subjected to multiplex DNA recovered

from the above exhibits were subjected to multiplex PCR

reaction for co-amplification of the 15 STR loci & Amelogenin

using AmpF9STR identifier Plus PCR amplification kit. The

amplified products along with controls were run on the

Automated DNA Sequencer. The sizing of the fragments was

carried out using Gene Mapper ID software V 3.2. with respect

with Gene Scan 500 LIZ size standard. The resultant allelic

distribution for the studied loci in the different exhibits shown

in his table of Annexure-A. After examination, he find that male

genetic profile were generated form Exhibits C and F and in

mixed genetic profile were generated from Exhibits 6 and 7.

Female genetic profile was generated from Exhibits 10(A).

Partial genetic profile was generated form Exhibit 10(B).

Female genetic profile was generated form Exhibit 10(C). Male

genetic profile was generated from Exhibit-9. The alleles of the

amplified loci of male DNA profile generated from Exhibits C, F

and B matches with Exhibit E. The alleles of the amplified loci

of female DNA profile generated form Exhibit 10(A) matches

with Exhibit 10(C) and also matches with Exhibit 9. The alleles

of amplified loci of DNA profile generated form Exhibit 9 are

present in the alleles of the amplified loci of mixed DNA profile

of Exhibits 6 & 7. The alleles of the amplified loci of mixed DNA

profile generated from Exhibit E and present in the alleles of

the amplified loci of DNA profile of Exhibit 6 and 7. The alleles

of the amplified loci of DNA profile generated from Exhibit E are

present in the alleles of the amplified loci of DNA profile of

Exhibit 6. The alleles of the amplified loci of DNA profile

generated form Exhibit E do not matches with the alleles of

the amplified loci of DNA profile of Exhibit-7.

25. Learned P.P. further deposed that evidence of P.W.13

and P.W.14 also clearly point towards the guilt of the convict-

appellant.

26. After considering the arguments of learned counsel as

well as after perusing the evidence on record, we are of the

considered view that. As per the DNA samples and forensic

evidence with regard to the charge under Section 302 of IPC

for murder is concerned, they do not match with the samples

of the accused, and with this, it gives a doubt that there is

some other person which the prosecution has failed to prove.

In view of the same, the charge under Section 302 of IPC as

passed by the learned Sessions Judge, Khowai Tripura in

connection with the Case No. S.T.(T-1)07 of 2018 against the

accused is set aside.

27. With regard to conviction under Section 376 of IPC, as

per the DNA sample and the forensic evidence, the specimens

of the accused and the deceased are proved. Hence, it is a case

of Rape. Accordingly, the conviction of the convict-appellant

under Section 376 of IPC to suffer rigorous imprisonment for

10(ten) years and to pay a fine of Rs.5,000/- as passed by the

learned Sessions Judge, Khowai Tripura in Case No.S.T.(T-1)07

of 2018 is confirmed.

28. Accordingly, this instant appeal stands disposed of in

the terms of the above-mentioned directions and observation.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

         (ARINDAM LODH,J)                   (T. AMARNATH GOUD,J)




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