Lalit Mohan Ghose and Others vs State of Triupura

P.C. Phukan, J.—This is an appeal directed against the judgment and order dated 8-12-1987 passed by the learned Additional Sessions Judge, West Tripura, Agartala convicting the accused appellants u/s 302/34, IPC and sentencing them there under to imprisonment for life in Sessions Case No. 21(W.T./A) of 1983.

The prosecution case in brief is that on 19-8-1983 in the morning at Madhya Pratapgarh under East Agartala under West Tripura Police Station Pinu alias Uttam Chakraborty (since deceased) was returning home on a cycle from the side of Goal Bazar along Madhya Pratapgarh road. When he reached the front of the roadside house of Lalit Mohan Ghose at about 11 a.m., Lalit and his three sons Ranjan, Sankar and Sajal alias Nanu Ghose armed with Daos and Ballam attacked him. He fell down from the bicycle and started running towards the south. Chased by Lalit and his sons, he fell down on the paddy field of Lalit''s brother Dhiro Ghose where they struck him with Daos and Ballam causing his death on the spot.

On receiving information the police registered a case and started investigation and on completion of investigation charge-sheeted all the above named accused persons under Sections 302/34, IPC. The learned Judicial Magistrate committed the case to the Court of Session under the said sections of law.

In the Court of Session a charge under Sections 302/304, IPC was framed, read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. In the trial the prosecution examined as many as 22 witnesses. The statements of the accused persons, except accused Sajal Ghose alias Nanu who died in the meantime, were recorded u/s 313, Cr. P.C. about 3 years after the occurrence in the month of July, 1986 when Lalit, Sankar and Ranjan gave their age as 65 years, 19 years and 16 years respectively. Accused Lalit Ghose pleaded innocence and added that in 1983 the prosecution witnesses had set-fire to his house and with the help of others murdered his son Sanjeeb Ghose. Accused Ranjars and Sankar denied that they were born in 1964 and 1960 respectively and pleaded innocence. The defence examined one witness. This witness D.W. 1 exhibited school certificate Ext. D-5 showing the date of birth of the accused Ranjan to be 6-1-70.

After considering the evidence on record and hearing the prosecution and the defence the learned Sessions Judge convicted and sentenced the accused persons as stated above, and hence this appeal.

We have considered the record of the case and have heard Mr. A. K. Rhowmik Senior Advocate and Mr. M. K. Bhowmik, learned counsel for the accused appellants, as well as Mr. S. Dass, learned Public Prosecutor, appearing for the State respondent. The learned counsel have taken us minutely through the evidence on record. Such evidence including that of the doctor P. W. 16 who performed the post mortem examination on the dead body of the deceased has amply proved that the deceased was brutally murdered at the time and place as alleged by the prosecution. The question is whether the accused-appellants participated in the commission of this murder. In this regard P.Ws. 1, 2 and 3 claimed to have seen the accused-appellants inflicting Daos and Ballam blows on the deceased causing his death. According to P.W. 1, Satya Ranjan Nandi, one Nirmal Saha, after her husband''s death, requested him to look-after her land, and on the date of occurrence, an auspicious day for transplantation of paddy seedling, after engaging some labourers for transplanting paddy seedling thereon, at about 11 a.m. while returning home he saw the deceased coming on a bicyle towards the south followed by two other boys in two other cycles. When the deceased reached the front of the accused Lalit''s house, Lalit and his three sons armed with Daos and Ballam came out of the house and attacked the deceased who fell down from the cycle and started running towards the South. Chased by them, he fell down on the road side paddy land of accused Lalit Ghose''s brother Dhiro Ghose where they struck him with Daos and Ballam. On seeing the murderous assault from a distance of 50/55 cubits, P.W. 1cried "cutting! cutting!" and saw Sankar Das P.W. 2, and Jagabandhu Das P.W. 3 standing on the north-eastern corner of the pond of Jiten Paul at a distance of about 100/125 cubits to the South-West. On being asked, P.W. 1 replied to P.W. 2 that Pinu has been hacked. As soon as P.W. 1 replied, accused Sankar and Nanu alias Sajal abused and chased P.W. 1, who while running towards the West, heard Lalit saying "Pinu finished, you flee away" and saw them entering into their house P.W. 1 asked P.Ws. 2 and 3 to go to the house of the deceased for giving information about what had happened. After 2/3 minutes P.W. 1 saw a few persons coming towards the place of occurrence from various directions. P.W. 1 then came near the place of occurrence and saw an empty rickshaw and Dulal Paul (P.W. 11) and Babul Paul (P.W. 12) arriving there. They lifted the body of the deceased to the Rickshaw from the paddy field. P.W. 1 then saw P.W. 8 Minati Cbakraborty, mother of the deceased, along with P.Ws. 2 and 3, and told her that the accused persons struck her son with Daos and Ballam. Babul Paul (P.W. 12) and Provash took the deceased in the Rickshaw to the hospital. In the meantime P.W. 8 became unconscious and P.W. 1 with the help of P.Ws. 2 and 3 took her to her house. P.W. ! returned home at 11-45 a.m. At about 1 p.m. the investigating Police Officer (P.W. 21) came to his house and recorded what he narrated before him about the occurrence and obtained his signature thereon. P.W, 1 exhibited the same as FIR Ext. P(1).

On the day of occurrence, P.Ws. 2 and 3 were transplattng paddy seedlings on the paddy field of Bhola Deb, 200/250 cubits west from the place of occurrence. At about 11 A.M. suddenly they heard cries "cutting! cutting!". P.W. 3 looked at the direction from where the noise came, and told P.W. 2 that someone was being hacked. P.W. 2 corroborated this and said that he also looked at that direction. P.Ws. 2 and 3 corroborated P.W. 1 by saying that they saw the accused Lalit, Sankar and Ranjan armed with Daos and accused Nanu Ghose alias Sajal armed with a Ballam striking a boy on the paddy field of Dhiru Ghose (accused Lalit Mohan''s brother). P.Ws. 2 and 3 further corroborated P.W. 1 by saying that both of them rushed to the north-eastern corner of the pond of Jitu Paul and stood there and from there also they saw the four accused persons still striking the deceased. P.Ws. 2 and 3 further corroborated P.W. 1 by saying that they saw P.W, 1 standing on the road to the south of homestead of accused Lalit Mohan. According to P.W. 2, he asked P.W. 1 as to who had been cut and P.W, 1 replied that it was Pinu, P.W. 3 corroborated P.W. 2 on this point. P.Ws. 2 and 3 corroborated P.W. 1 by saying that as soon as P.W. 1 replied, the accused Sankar and Nanu alias Sajal abused and chased P.W. 1 who started running towards P.Ws. 2 and 3 who then heard accused Lalit Mohan saying that Pinu had been finished and asking other accused persons to flee away. P.Ws. 2 and 3 further corroborated P.W. 1 by saying that they also saw all the accused persons running and entering into their house. So far the evidence is about implication of the accused persons with the alleged offence P.Ws. 2 and 3 also corroborated P.W. 1 by saying that P.W. 1 thereafter asked them to go to the house of the deceased for giving information about the occurrence. P.Ws.2 and 3 deposed that on their way to the house of the deceased they raised hue and cry which attracted a few persons to the place of occurrence and they saw an empty Rickshaw coining towards the place of occurrence. P.Ws. 2 and 3 reported to the deceased''s mother (P.W. 8) that the accused persons struck her son with Daos and Bailam on the paddy field of Dhiro Ghosh (accused Lalit Mohan''s brother). P.Ws. 2 and 3 came back to the place of occurrence with the deceased''s mother (P.W. 8) and found P.W. 1 still there. They corroborated P.W. 1 by saying that P.W, 1 reported to P.W. 8 that the accused persons struck her son P.Ws. 2 and 3 saw Babul Paul (P.W. 12) and Probhas lifting the deceased to the rickshaw and rushed him to the hospital. In the meantime the deceased''s mother (P.W. 8) became unconscious. P.Ws. 2 and 3 corroborated P.W. 1 by saying that they along with P.Ws. 1 and 2 took the deceased''s mother to her house. Thus P.Ws, 1, 2 and 3 fully corroborated one another on the point as to implication of the accused persons with the alleged offence and the evidence of P.Ws. 1,2 and 3 on the other points finds corroboration in the evidence of P.Ws. 8,11 and 12 to the extent indicated above.

Admittedly, P.W. 5 Manohar AH, did not see for himself the accused persons striking the deceased. He was then working as a labourer in the paddy field on P.W. 1. At about 11 A.M. he heard cries of P.W. 1 came to the place of occurrence and saw accused Lalit Mohan and his three sons armed with Daos and spear entering into their house. P.W. 5 deposed that P.W. 1 left the field at about 11 A.M. and a short while before, he saw Pinu coming on a bicycle towards the south and about 3 minutes later heard P.W. l''s cries "Pinu is being killed." Thereafter he saw Pinu lying on the paddy field of Dhiro Ghose in a pool of blood. Thus although P.W. 5 did not see the accused persons striking the deceased, he saw them leaving the place of occurrence armed with lethal weapons immediately after the occurrence and thus corroborated P.Ws. 1, 2 and 3 to that extent. P.W. 9 had to get down from the cycle near a very narrow pool as he was wearing a Lungs. But the deceased went ahead 30/40 cubits and when he reached front of the first road side house to the east of the road, someone came out from that house and tried to hit Pinu with something like a Lathi. Pinu got down from the cycle and ran away and before that P.W. 9 and Bikash crossed the bridge, Learned Public Prosecutor submits that this first road-side house belonged to the accused persons. The evidence of P.W. 9 shows that the occurrence took place in front of the said house and thus brought the accused persons closer to the crime. P. W. 9 could not see the actual occurrence and all the assailants, because he and Bikash crossed the narrow bridge before the deceased started running for his life. P.W. 14 Sub-Inspector of Police reached the place of occurrence at about 12-50 p.m., within two hours of the occurrence and found a bicycle-lying on the paddy field by the side of the road just in front of the house of accused Lalit Mohan and seized the same vide seizure list Ext.P.4. He also found that the accused Lalit Mohan''s house was burning. The doctor P.W. 16 performed the post mortem examination on the dead body of the deceased and opined that the death was due to shock and haemorrhage with laceration of the brain tissues as a result of the fracture of the cranial bone along with perforation of the left lung and right ventrical of the heart due to the injuries received which had been caused by external violence with sharp, heavy and pointed weapons.

Learned counsel for the accused appellants have argued that there were shops and houses on both sides of the Madhya pratapgarh road but none of the inmates thereof has been examined. This argument over looks that once the prosecution case is believed, non-examination of the neighbouring witness cannot throw doubt on the testimony of the witnesses who have been examined and believed by the Court. Learned counsel then has argued that P.W. 1, whose eye witness account figures most primarily in this case, cannot be believed. Learned counsel points out that in his FIR Ext.P-1, he claimed to have been returning from his paddy land at the time of occurrence, but in the trial he deposed that the said paddy land belonged to one Smt. Nirmala. This is not a serious discrepancy. P.W. 1 was looking after the said land since the death of Nirmala''s husband, and this explains why P.W. 1 in the FIR Ext. P-1 referred to the said land as his land. Learned counsel has reiterated the other grounds against accepting P.W. l''s testimony advanced before the trial Court. The trial Court did not believe P.W. 1 on those grounds. First, in his FIR, he said that all the accused persons were armed with Daos, but in the trial he deposed that only accused Lalit and Ranjan were armed with Daos and the other two with weapons like Mallarn. Learned counsel for the accused appellants submits that this improvement was made to make the eye-witness account about the injuries in the person of the deceased conform to the medical evidence. Secondly, he deposed that the bicycle was lying at a distance of 9-9V6 cubits to the south from the gate of the accused Lalit Mohan''s house; but according to the seizure list Ext. P-4, the cycle was found lying about 18 cubits North-West from the said gate. And thirdly P.W. 1 saw the deceased being followed by two boys in two bicycles whereas P.W. 9, one of the two boys, deposed that both of them was riding one bicycle. The learned trial Court then concluded that these discrepancies have cast a doubt about his presence at the time and place of the occurrence, We do not agree with the trial Court. We have found clear and categorical evidence of P.Ws. 2,3 and 5 about the presence of P.W. 1 at the time and place of occurrence. P.Ws. 2, 3 and 5 satisfactorily accounted for their presence at the time and place of occurrence, and the trial Court believe them. In the light of their convincing testimony, the evidence of P.W, 1 also merits acceptance notwithstanding the discrepancies, which are not of serious nature, noticed in his evidence. Improvements made by an eye witness in his version at the time of trial Court not necessarily render his whole evidence untrustworthy. Minor discrepancies in his evidence as (o the correct distance to the place where the bicycle was lying, or as to whether the two boys following the deceased rode one or two bicycles is no ground to disbelive an eye-witness. PWs, 1, 2 and 3 have with one voice and with complete unanimity implicated all the four accused persons with the murder of the deceased, P.W. 5, though did not see the accused persons striking the deceased, saw them leaving the place of occurrence with lethal weapons in their hands immediately after the occurrence and thus corroborated the evidence of P.Ws. 1, 2 and 3 to that extent. We find their evidence natural, cogent and trust-worthy on close scrutiny with much care. Their evidence has to be subjected to such scrutiny as the accused Lalit in his statement u/s 313, Cr.P.C. said that the party of the deceased set fire to his house and earlier killed his son Sanjeeb. Enmity is a double-edged weapon providing motive both for the offence as well as for false implication. Past enrrfty between the accused persons and the family of the deceased is a relevant fact to be taken into account for forming an opinion about the existence of common intention among the accused persons to kill the deceased. The manner in which the accused persons came out of their house together armed with lethal weapons and mounted the attack on the deceased, the determination and concert with which the murderous assault was made and the conserted conduct subsequent of the commission of the offence as all of them had left the place of occurrence together after the accused Lalit cried "Pinu finished flee away!" leave no room for doubt that the accused appellants and the accused Sajal alias Nanu (since deceased) killed the deceased in furtherance of their common intention. The trial Court, therefore, rightly convicted them under Sections 302/34, IPC.

There is, however, another aspect which requires consideration in this case. In ground No. XXX V of the Memorandum of appeal it has been submitted that "the appellant Nos. 2 and 3 were minor and yet they were tried in violation of the Children''s Act as applicable in Tripura." This point was raised in the trial Court also by the defence filing an application dated 22-7-86. Admitting this petition for hearing, the trial Court allowed the prosecution and the defence to adduce evidence as to the age of the accused persons. Observing that the evidence so adduced was not sufficient, the trial Court opined that the Court as the final authority should come to a decision as to age from the appearance of the persons and held that at the time of occurrence the accused Sankar, Sajal and Ranjan were aged 18/19, 16/17 and 15 years respectively but expressed inability to give benefit of the Tripura Children Act, 1983 to any of them as the said Act was not brought into force and rejected the above mentioned application with an assurance to invoke the principle of Section 24 thereof, if they were found guilty vide order dated 22-7-87. By an order dated 12-9-86 in Crl. Revision No. 22 of 1986 the learned single Judge of this Court set aside the aforesaid trial Court''s order dated 22-7-87 to the extent that the Court cannot invoke even principle of any provision of the said Act until the Act is brought into force and that court cannot come to a decision as to the age of the accused persons from their appearance. We fully agree with the learned single Judge. On close scrutiny we have, however, found that there is sufficient evidence including the school Headmaster''s Certificate dated 29-7-85 Ext, D-5 recorded from the admission register and proved by D.W. I to show that: at the time of occurrence the age of the accused Ranjan was less than 16 years. u/s 2(h) of the Juvenile Justice Act, 1986, "juvenile" means a boy who has not attained the age of sixteen years. In (1993) 2 CCR 101 (All) dealing with Section 2(h), it has been held that the age as per school certificate should be accepted as correct unless it is proved that the entries in the School certificate were incorrect, In the instant case such entries have not been proved to be incorrect. ''

The Juvenile Justice Act, 1986 has been brought into force in all the States including Tripura with effect from 2-10-87 vide Government of India, Ministry of Welfare, Notification No. GSR 710(E) dated 13-8-87. Section 26 of this Act reads as under :-

Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Court which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the juvenile has committed the offence.

The proceeding in Sessions Case No. 21(W.T/A) of 1985 in respect of the accused appellant Ranjan, who was 15 years old at the time of occurrence and hence a Juvenile u/s 2(h) of the Act, was pending in the Court of Additional Sessions Judge, West Tripura at Agartala, on 2 -10-87 on which date this Act came into force had rightly continued in that Court as if this Act had not been passed, and since that Court found the juvenile accused Ranjan had committed the offence under Sections 302/34, IPC vide the judgment and order dated 8-12-87, that Court rightly recorded such finding; but should not have passed any sentence against him, and instead should have forwarded him to the juvenile Court which would have passed orders in respect of him in accordance with the provisions of this Act as if such juvenile Court had been satisfied on enquiry under this Act that he had committed the offence. If the accused-appellant Ranjan is now forwarded as aforesaid, the Juvenile Court cannot pass an order u/s 21(1)(d) of this Act for sending him to a Special Home as he is now about 30 years old. The second proviso to Section 21(1)(d) prohibits a delinquent juvenile from staying in such, a Home after he attains the age of eighteen years. As regards other orders like one for release on probation that may be passed u/s 21(1)(d) by the juvenile Court, it has to be born in mind that more than a decade has elapsed since he was convicted on 8-12-87 for the offence he committed as far back as 19-8-83.

In Bhoop Ram Vs. State of U.P., it was held (para 8 of Cri LJ):-

Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved School under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra and another Vs. State of Uttar Pradesh, that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "Child" u/s 2(4) of the U. P. Children Act and sent to an approved School and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed in the accused and direct his release forthwith. Accordingly in this case also we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith.

In Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., it was held (paras 3 and 4)

It is, thus, proved to the satisfaction of the Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U. P. Children Act instead of being sentenced to imprisonment on conviction under Sections 302/34 of the Act.

Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U. P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charge framed against them, we quash the sentences awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms.

In a judgment and order dated 24-10-97 passed by the Apex Court in Criminal Appeal Nos. 1826 to 1828 of 1996 Bhola Bhagat Vs. State of Bihar, dealing with the children accused who ceased to be children long before the matter came to the Apex Court, it has been held (paras 15 to 17):-

Following the course adopted in Gopinath Ghosh Vs. The State of West Bengal, Bhoop Ram Vs. State of U.P., and Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., while sustaining the conviction of the appellants under all the charges quash the sentences awarded to them.

The appellants Chandra Sen Prasad, Mansen Prasad and Bhola Bhagat, shall, therefore, be released from custody forthwith, if not required in any other case. Their appeals succeed to the extent indicated above and are partly allowed.

The conviction and sentence of the remaining appellants is maintained and their appeals are hereby dismissed.

In view of the above and having regard to the provisions laid down u/s 26 of the Juvenile Justice Act, 1986, the conviction of all the three accused appellants under Sections 302/34, IPC is upheld, the sentence thereunder to imprisonment for life awarded to the accused appellant Lalit Mohan Ghosh and Sankar Ghosh is also maintained. Their appeal stands dismissed. However, the sentence to imprisonment for life under Sections 302/34 IPC awarded to the accused appellant Ranjan Ghosh is quashed and set aside. He stands discharged from his bail bond. Accordingly, the appeal in respect of him is allowed in part.

The bail granted to the accused-appellant Lalit Mohan Ghosh and Sankar Ghosh shall stand cancelled. They shall present themselves before the trial Court within two weeks from the date of this order to serve out the sentence, failing which, the trial Court shall proceed against them according to law.

Send down immediately the lower Court records along with a copy of the judgment and order of this Court.