Mritunjoy Chakma vs State of Tripura

U.L. Bhat, C.J.—Appellant herein has been convicted u/s 302, I.P.C. and sentenced to undergo imprisonment for life for the murder of Subal Chakma.

Prosecution case can be summarised as follows:

Appellant and Subal Chakma owned adjoining paddy fields, separated by a bundh. There was a dispute between them regarding this bundh. It was settled at one stage. A few days before the occurrence, the dispute again cropped up and intervention of Gao Pradhan, P.W. 6, and local M.L.A., P.W. 16 was sought. On the day fixed for settlement talks, Appellant did not attend. On 14.7.80 Subal Chakma went to the house of his uncle, P.W. 2 and sat at the door talking to P.W. 2. At about 2.30 P.M. Appellant armed with Ext. M.O. 2 dagger rushed there, inflicted a stab injury on Subal Chakma in the abdominal region and ran away. The incident was seen by P.W. 2, who alone was present. He called out to P.W. 3 that Appellant had stabbed Subal Chakma and asked him to come. P.W. 3 went there and thereafter called out Subal Chakma''s mother, P.W. 5. P.W. 5 rushed to the scene of occurrence followed by another son, P.W. 4 and a little later by Subal Chakma''s wife P.W. 8. The injured told his mother that the Appellant had stabbed him and he was not going to live. He made similar statement to P.W. 8 also. P.W. 8 went to the market to fetch a doctor. She met P.W. 9 who showed the Gao Pradhan, P.W. 6 to her and she sought his help to get a doctor. P.W. 6 told her that it would not be possible to get a doctor but they can take the injured to hospital. He engaged a vehicle and both of them came to the scene of occurrence and found that Subal Chakma was dead.

Meanwhile Appellant left the scene with the dagger, met P.W. 7 on the way and told him that Subal Chakma had been finished. He sought the help of P.W. 7 to meet P.W. 6. Both of them went to the market. P.W. 7 returned from the market. Meanwhile P.W. 4 went to the market, met P.W. 1 and told him about the occurrence. Both of them went in search of P.W. 6. Meanwhile, P.W. 15, A. S. I. of Police of Kanchanpur Police Station had been sent to the market to look after law and order since that was a Rathajatra day in the market. P. Ws. 1 and 4 met P.W. 15 and the latter was informed about the occurrence. Meanwhile Appellant saw P.W. 15 in the market and made a confession to him and also handed over M.O. 2, dagger to him. This was witnessed by P. Ws. 1,4,6,12,14 and 15. P.W. 15 seized the dagger under Ext. P. 12 attested by P. Ws. 12 and 15. P. Ws. 6, 15 and others went to the scene of occurrence and found the injured dead. P.W. 1, who had reached the scene of occurrence meanwhile gave oral information to P.W. 15 who recorded the same as Ext. P. 1. He held inquest over the dead body and prepared Ext. P. 2, inquest report, witnessed by P.W. 6 and others. He searched the house of the Appellant, seized M. 0.1 shawl belonging to the Appellant and at 11.30 P.M. reached the police station with Appellant, the seized articles, Ejahar and other records. Next day post-mortem was conducted by P.W. 19, Medical Officer in the local hospital. P.W. 17, Officer-in-Charge of the station took up investigation, questioned witnesses, took other steps for investigation and after completing the same laid charge-sheet against the Appellant.

On the Appellant pleading not guilty to the charge, prosecution examined 19 witnesses and marked Exts. P. 1 to P. 8 and some material objects. Defence marked Ext. D-l but did not examine any witness. The Appellant denied the truth of the prosecution evidence and further stated that "at the time of the occurrence he was at the "Rathamella". At that time P.W. 1 came to the Police Officer and told him that Subal Chakma died on account of the injuries in the house of P.W. 2 and as instructed by the officer, P.W. 1 wrote on a paper and gave it to the officer. Thereafter both of them, as also the Appellant, went to the house of P.W. 2. The officer questioned P.W. 2 about the occurrence who stated that his eye sight is weak and he saw two men running. Thereafter the officer threatened P.W. 2 who stated that he knew the two persons. The officer took P.W. 1 some distance away and whispered to him and then wrote Ejahar on a paper and asked P.W. 1 to sign it. Thereafter he arrested the Appellant

P.W. 19, who conducted post-mortem examination on the dead body deposed that there was only one external injury, namely, spindle-shaped injury on the abdominal wall, 3" left to mid-mammary line below the 10th rib on the right side. Corresponding to this injury, the membranous capsule covering the liver was seen ruptured and there was would over the anterior wall of the right lobe of liver and the edges were clean cut and there was a wound in the liver, V2" x 1" x6".

P.W. 19 deposed that cause of death was due to shock caused by internal haemorrhage in the right lobe and the injury was ante-mortem. The injury could have been caused by the weapon like M.O. 2. P.W. 19 was not asked by the prosecutor about the seriousness of the injury. However, from the nature of the injury and the nature of the evidence we are satisfied that the injury would be sufficient in the ordinary course of nature to cause death.

Prosecution relied on the following items of evidence to connect the Appellant with the crime.

(i) Eye-witness testimony of P.W. 2.

(ii) Dying declaration spoken to by P. Ws. 2,4,5 and 8.

(iii) Extra-judicial confession spoken to by P.W. 7 and P.W.I.

(iv) The subsequent conduct of the accused in meeting police officer and handing over M.O. 2 to him.

(v) Medical evidence.

According to the prosecution the occurrence took place in the house of P.W. 2 and in the presence of P.W. 2 and none else was present except a baby who was being fondled by P.W. 2. P.W. 2 is the uncle of deceased Subal Chakma. Subal along with his brother, P.W. 4, and mother, P.W. 5 worked in their paddy field in the forenoon. Thereafter P. Ws. 4 and 5 returned home. Subal went to his uncle''s house and sat there talking with P.W. 2. The evidence of P.W. 2 is that at about 2.30 P.M. Appellant rushed up with a dagger, inflicted the stab injury on Subal and ran away. There was no attempt made in cross-examination of this or other witnesses challenging the location of the scene of occurrence. That being so, P.W. 2 was a natural witness of the occurrence and his evidence indicates that there was no one else present. Hence, the fact that he was related to the deceased is not sufficient to discard his evidence. His evidence is fully supported by the medical evidence. He was questioned without delay, namely, on the very next day. It was suggested to him that Surajoy was responsible for the injury and he denied the suggestion. The evidence of P.W. 5, mother of the deceased, shows that her husband had been killed by Surajoy. It is clear that the Appellant was making a desperate attempt to cast the responsibility on the person who killed the father of the deceased. There are absolutely no circumstances in the evidence to lend any strength to the defence suggestion that somebody other than the Appellant was responsible.

The evidence of P.Ws. 2 and 3 shows that immediately after the occurrence P.W. 2 called out to P.W. 3 who went to the scene of occurrence. The evidence of P. Ws. 2,4, 5 and 8 shows that thereafter P.W. 3 called out to P.W. 5 and she rushed to the scene immediately followed by her son, P.W. 4 and a little later by P.W. 8, wife of the deceased. P.Ws. 2, 4 and 5 deposed that the mother went near the injured and asked him what happened and the told her that Mritunjoy (Appellant) stabbed him and he will not survive. It was suggested in cross-examination of P.W. 4 that he did not mention about this dying declaration to the investigating officer. He denied the suggestion. We find a note made in the deposition by the learned Sessions Judge there was no reference to it in the case diary statement. Of course, it maybe open to the learned Sessions Judge for the purpose of verifying whether a correct suggestion was being put, to look into the case diary statement. However, we do not think it was any part of the duty of the learned Sessions to make a note in the deposition either that the case diary statement contains reference to dying declaration or that it does not contain reference to it. We also find that the witness was not confronted with the case diary statement for the purpose of contradiction. Counsel who defend accused in criminal case would do well to appreciate the requirements of Section 145 of the Indian Evidence Act which postulates two different stages, namely, first stage of cross-examination of the witness as to previous statement made by him and the second stage of contradicting the witness by his previous statement; while in the first stage it is not necessary to call his attention to his previous statement, in the second stage it is necessary to call his attention to those parts of the statement which are to be used for the purpose of contradicting him. If he admits the contradictory statement (affirmative or negative), the Sessions Judge may merely record it. If he denies the contradictory statement, the Sessions Judge will record the denial. The defence counsel would be well advised in the case of a positive contradiction to get the relevant portion marked as well tentatively subject to proof. Of course no part of the statement can be marked in the case of an omission. Where the witness denies the contradictory previous statement, it requires proof through the Investigating Officer who questioned him. No attempt was made to contradict P.W. 4 with reference to omission in the previous statement. We find that no attempt was made to prove the omission when the Investigating Officer was being examined. We would like to point out that even if the defence counsel fails in the discharge of his duty, the learned Sessions Judge cannot be a silent spectator. Where it is obvious to him that there is a contradiction as asserted by a witness, he would do well to alert the defence counsel so that requirements of Section 145 are satisfied. However, in the circumstances, we would not like to rely on the dying declaration spoken to by P.W. 4 but we find no infirmity in the dying declaration spoken to P. Ws. 2 and 5. There is nothing in the evidence to indicate that the injured was not in a position to speak a few words.

P.W. 8, wife of the deceased who reached the scene a little later went to her husband and he told her that he was stabbed by Mritunjoy (Appellant) and he will not survive. Here again an attempt was made during cross-examination to bring out an omission in the case diary statement but the attempt suffers from the same infirmity which we have pointed out with reference to the evidence of P.W. 4. However, we would prefer not to act on the dying declaration spoken to by P.W. 8. But the dying declaration spoken to by P. Ws. 2 and 5, as we have indicated, would stand.

P.W. 7 is a person of the locality. He deposed that at about 2.30 P.M. when he was in his paddy field, Appellant passed near the field and told him'' ''Subal Chakma had been finished". The witness questioned him further but Appellant gave no further particulars. Appellant asked him to go with him to the house of P.W. 6 which he did but when he reached the bazar, the witness did not proceed further. Before he left bazar, he saw Appellant accosting P.W. 1 and talking to him. Prosecution expected this witness to speak to a fuller extra-judicial confession and other incriminating circumstances. He was not prepared to do so. He was cross-examined with the permission of the Court. He was confronted with relevant portions of the case diary statement with reference to the extra-judicial confession. He denied the same.

P.W. 1 is the uncle of Appellant as well as the deceased. He had gone to the bazar to attend Ratha Jatra festival on that day. The evidence of P. Ws. 1 and 4 shows that P.W. 4 met P.W. 1 and told him that the Appellant had stabbed Subal. When they proceeded, they met P. W 15, A. S. I. of Police. P.W. 1 passed on information to P.W. 15. On the way Appellant met P W1 and told him that he had finished Subal Chakma. Learned Sessions Judge was justified, in our view, in accepting the evidence of a dis-interested villager like P.W. 7 and the evidence of P.W. 1 who was equally interested in the Appellant and the deceased. We do not say that the statement attributed to the Appellant by these two witnesses is by itself incriminatory to the fullest extent but it throws some light on the subsequent conduct of the Appellant.

There is evidence of P.Ws. 1, 4, 6, 14, 15 and 16 to the effect that Appellant accosted P.W. 15 in the market and after talking to him handed over M.O. 2, dagger to him. The evidence also shows that P.W. 15 seized the dagger. The seizure list was prepared in a nearby medical shop. We find nothing elicited in cross-examination of this witness to throw any doubt on the veracity of the witness in regard to this aspect of the case.

The above discussion would show that the cogent eye witness testimony given by P.W. 2 is fully supported the evidence given by P.Ws. 2 and 5 regarding dying declarations as also the evidence regarding the subsequent conduct of the Appellant referred to above, we find no reason to hold that the learned Sessions Judge was not justified in accepting the evidence as true.

According to the learned counsel for the appellant the testimony of some of the important witnesses cannot be accepted since they are Tribals not fully conversant with Bengali and the Investigating Officers are Bengalis not fully conversant with Chakma language and that the depositions recorded by the learned Sessions Judge with the help of a member of the Court staff as interpreter also cannot be relied on for the same reason. We are not impressed by this argument. We have no reason to believe that the Investigating Officers did not take the trouble of finding out the true intent of the words of the witnesses before recording the same. Equally we have no reason to believe that the learned Sessions Judge would not have satisfied himself about the capacity of the interpreter before nominating him as such.

The evidence referred to above is sufficient to show that it was the appellant who inflicted the fatal injury on Subal Chakma and caused his death. According to the learned counsel for the appellant, the offence of murder is not established in this case and that at best an offence punishable u/s 304 Part II only can be said to have been established against the appellant. The argument is entirely based on the fact that there was only one injury inflicted and on the theory pro-pounded by the learned counsel that liver is completely protected by the rib cage and the external injury below the rib cage could not have caused internal injury to the liver. Whether infliction of only one injury would lead to an inference regarding commission of murder or culpable homicide not amounting to murder depends on the facts and circumstances of each case. It depends on the back-ground of the case, nature of the weapon used, the manner in which it was, used, the circumstances in which it was used and the site of the injury. From the evidence of P. W. 2 it is clear that the injury was inflicted with deliberation. It was not as if the dagger blow was not aimed at the particular part of the body or that the blow aimed at one part of the body accidentally hit another part of the body. The injury was on a vital part of the body. We accept that this injury was intended to be inflicted. We are not prepared to accept that the liver is protected by the rib cage and the external injury below the rib cage cannot cause injury to the liver. The nature of the injury is such that, as we have already indicated, it was sufficient to cause death in the ordinary course of nature. The act of the appellant therefore falls under "3rdly" of Section 300, I.P.C. punishable u/s 302, I.P.C.

The appeal is dismissed.