Ratan Paul vs The State of Tripura

N.G. Das, J.—The accused Appellant Ratan Paul is under a term of life imprisonment imposed on him on 12.4.1984 by the learned Sessions Judge, South Tripura for killing his wife Putul Rani Paul on 7.11.1982 in the village Pitra under R.K. Pur Police Station.

The facts of the case which may succinctly be summarised are that accused-Appellant and deceased Putul Rani Paul, who are residents of village Pitra fell in love with each other and sometime in the month of Jaistha 1389 B.S. they fled away from the village, came to Agartala and got themselves married on swearing an affidavit before an Executive Magistrate on 14.7.1982. In the month of Sravana they came back to the village together and sought shelter in the house of their parents, but neither the father of the boy nor the brother of the girl Chandan agreed to give them shelter. So, they stayed in different houses including the house of Chandan pending settlement of their marriage by village elders. A number of ''Baithaks'' were held, but the village elders could not settle up the matter amicably. So, Putul started residing in the new house of her brother Chandan, which was constructed after his original house was gutted during 1980 disturbance. On the date of occurrence i.e. 7-11-1982 at about noon Putul was found missing from the new house which was situated near the house of the Appellant Ratan. At about 3.00 P.M. Nikhil Paul, the elder brother of Putul got the information from his mother that Putul was missing. So, he along with others went out in search of Putul and during search at about 3.30 P.M. they found Putul lying dead in the jungle situate to the South-East of their home-stead at a distance of 150 cubits. On seeing the dead body of Putul they raised alarm and Nikhil rushed to Pitra Out Post where he narrated the occurrence to the Inchargc Officer who sent an information through wireless message to O/C, R.K. Pur P.S. to the effect that one dead body was found at village Champaknagar under Pitra Out Post.

The O/C, Shri Subhash Sinha (P.W. 37) received the information and entered the gist of the information in the G.D. of the P.S. under Sl. No. 266, dated 7-11-1982 and thereafter he along with his staff came to the village Pitra, visited the place where the dead body of Putul was lying and thereafter recorded the First Information Report (Ext. P/23(2) which was lodged by the informant Nikhil Paul (P.W. 1) to the effect that Putul was lying dead in ''Durki'' forest on a tilla a distance of about 150 cubits to the South East corner of their house and that a noose was tied around her neck. It was also alleged that subsequent to discovery of the dead body of Putul a few villagers presented Monoranjan Paul and his son Ratan Paul in the new house where Ratan confessed to them that he murdered Putul.

After recording the ejahar O/C endorsed the case to Sub-Inspector Shri G.K. Nath for investigation and also sent the ejahar to the P.S. for registration of the case. Accordingly, Sub-Inspector Shri Haripada Bhattacharjee (P.W. 36) filled up the prescribed form of F.I.R. and registered a case u/s 302 of IPC being R.K. pur P.S. Case No. 7(11)/82.

In course of investigation Sub-Inspector Shri G.K. Nath visited the place of occurrence, prepared a hand sketch map thereof with separate index, prepared inquest report of the deceased, seized materials under seizure lists and recorded the statements of the witnesses u/s 161 of Code of Criminal Procedure. He also despatched the dead body to Udaipur Civil Hospital for post mortem examination under the escort of Const. Haradhan Dey and arrested the accused persons, namely accused-Appellant and his father Monoranjan Paul, his uncle Nikunja and one Bidhu Bhusan Paul.

Dr. Smti Tani Bhattacharjee (P.W. 35) conducted the autopsy on the dead body of Putul on 8.11.82 around 2.50 P.M. and found the following injuries:

One ligature with the Sari with a single knot at the right side of the neck. The position of the knot is about 1" below the ear lobule (right) and the mark was about 1" in breadth and blood was oozing out from both the nostrils and mouth cavity.

The doctor did not find any other external injury, but during her cross-examination it was stated by her that abdominal wall was found swollen due to pregnancy about 26 weeks. Both the lungs were found congested and during dissection it was found by the doctor that blood was oozing out of the vaginal panel although there was no sign of injury or ulcer. After dissection of the uterus the doctor found a dead female baby inside the uterus. But the doctor did not find any disease or deformity, fracture or dislocation of mussles, bones end joints. The doctor opined that death was due to asphyxia caused by ligature on the neck and she also stated that it was homicidal in nature.

The Investigating Officer obtained the post mortem examination report and after completing the investigation he charge-sheeted the accused-Appellant, his father Monoranjan Paul, his uncle Nikunja Paul and Bidhu Bhusan Paul for their prosecution u/s 302 read with Section 109 of IPC.

The learned Chief Judicial Magistrate, South Tripura committed the case to the Court of learned Sessions Judge, who after hearing learned Counsel of both the parties framed a charge u/s 302 of IPC against the accused Ratan Paul for having committed murder by causing death of Smti Putul Rani Paul. He also framed separate charge against Nikunja Paul, Bidhu Bhusan Paul and Monoranjan Paul u/s 302/109 and Section 302 read with Section 34 of IPC. The charges were read over and explained in Bengali to the accused who pleaded not guilty and claimed to be tried.

In order to bring home the charges the prosecution examined as many as 39 witnesses and also took the aid of documentary evidence marked as Ext. P/1 to Ext. P/25 & the material objects that were exhibited find marked as M.O. 1 to Ext. M.O. 11 series.

Accused persons led no evidence in their defence. However, their defence as would appear from the trend of cross-examination as well as the statements they gave at the time of examination u/s 313 of Code of Criminal Procedure is that they have been falsely implicated due to enmity which cropped up on account of Chandan''s sale of his possession of the home-stead inspite of resistance of Monoranjan. It was also alleged that Chandan gave a proposal of marriage of his sister Putul wiih Ratan but Monoranjan, the father of Rafan did not agree to that proposal and since then the enmity cropped up. Learned Sessions Judge after elaborate discussion of the evidence found the accused Monoranjan Paul, Nikunja Paul and Bidhu Bhusan Paul not guilty and accordingly acquitted them of the charges. But he found the Appellant Ratan guilty u/s 302 IPC and sentenced him to undergo imprisonment for life. Hence the present appeal.

Now admittedly there is no eye witnesses to the occurrence. The case rests purely on circumstantial evidence. In this context, it may be remembered that it is well settled that an accused can be convicted on circumstantial evidence only if every other reasonable hypothesis of guilt is completely excluded and the circumstances are wholly inconsistant with the innocence of the accused. The burden of establishing guilt of the accused is throughout on the prosecution and the prosecution must prove every link in the chain of evidence against the accused from the beginning to the end.

The learned Sessions Judge has placed implicit reliance upon the following circumstantial evidence, namely, both the Appellant and Putul were found going towards the place of occurrence some time before the occurrence; (2) extra-judicial confession; and (3) post occurrence conduct of the accused Appellant. As regards motive it was held by the learned Sessions Judge that the accused Appellant was victim of circumstances. It was stated that on the one hand, he was under pressure from the side of the parents to leave the girl and on the other hand, from the side of the deceased girl to take her. So, to sort out the problem the accused Appellant took this extreme step. But here we would like to mention that in cases where the case of prosecution rests purely on circumstantial evidence motive plays an important part in order to tilt the scale against the accused. Motive is a state of mind which has to be gathered from the facts proved by the prosecution. In the instant case from the hading of learned Sessions Judge made under para 58 of the judgment it is found that it seemed to the learned Sessions Judge that there was no way left for the accused other than to kill his beloved to get rid of the pressure of both sides. But there is nothing on record to show that their relation was not cordial. There is no proof as to what was his reaction when he heard that Putul was murdered. What is admissible u/s 8, Evidence Act is the conduct. Though silence may in certain circumstances amount to conduct, there is no proof even of a possible silence which may convincingly be taken to be conduct. Learned Sessions Judge''s finding in this regard is "it seems to me that the accused finding no other alternative to solve the problem faced by him thought it wise to wipe out the girl." This seems to be a very weak motive for the Appellant to kill his wife whom he married very recently. Not a single witness did even say that their relation became strained or it was bad. There is, therefore, no basis to make such a finding. So, in view of the evidence on record we are constrained to hold that the circumstantial evidence is so balanced that it is difficult to make a finding that accused Appellant had such a motive.

Coming now to the ''last seen theory'' it is found from the finding of the learned Sessions Judge that he mainly relied on the evidence of P.W. 14, P.W. 15, P.W. 16 and P.W. 22.

P.W. 14 is Smti Jyotsna Rani Paul, the younger sister of the deceased. She was 12 years of age on the date i.e. 14-3-84 when she gave evidence in the court. The occurrence look place on 7-11-82. So, at the time when her statement was recorded by the Investigating Officer she was about 10 years 8 months only. She deposed that on the date of occurrence the deceased and she were in the new house and on that date her mother (P.W. 2) who was also residing in the same hut left for Udaipur to sell milk, and after the departure of her mother the deceased was stitching a blouse. P.W. 2 Smti Snehabala Paul, who is the mother of the deceased also stated in her deposition that on the date of occurrence deceased, her younger daughter Jyotsna and herself were staying in the new house. That on the date of occurrence these 3 were staying in the new house is not disputed. But it has been quite vehemently argued that her statement that she saw Ratan near the house cannot be accepted in absence of any corroboration. According to P.W. 2 (the mother of the deceased) she returned to the house around 2.30 P.M. when her other daughter Sandhya Rani Rudra Paul (P.W. 16) told her that Putul was missing from the house. But neither from her evidence nor from the evidence of P.W. 16 it appears that PW 14 told any of them that after the departure of her mother she saw accused-Appellant near their house. So, in absence of any corroboration it is difficult to accept the version of P.W. 14 that after the departure of her mother for Udaipur she saw the accused Appellant near their house. We are of the considered view that in absence of corroboration her such version cannot be accepted as such a witness can easily be prevailed upon or tutored to give false evidence under the undue influence of their relations with whom they live.

We find support from the Division Bench authority of Allahabad High Court in Ram Hazoor Pandey Vs. State, wherein it was observed as follows:

The difficulty with child witness often is that they can be made to believe in things which they themselves have not seen and this belief, when once it gets hold of a child witness, is difficult to shake. It is also well known that child witnesses can be tutored much better than adults and further that when once a child witness has been properly tutored then such a child witness cannot easily be shaken in cross examination.

Although there is no bar in accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act or the un-corroborated child witnesses whether sworn or unsworn. While dealing with these aspects of the case, their Lordships of the Privy Council in Mohamed Sugal Esa Mamasan Re Alalah, Appellant v. The King reported in AIR 1946 P.C. 3 observed as follows:

...in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.

In view of the decisions quoted above we are of the view that the statement of P.W. 14 that she saw the accused-Appellant near their house after the departure of her mother cannot be accepted in absence of corroboration.

This P.W. 14 stated that after the departure of her mother deceased was stitching some blouse. The Investigating Officer P.W. 38 seized one blouse, two pieces of cloth, one needle and a piece of thread from the but and this seizure being proved by the Investigating Officer, the learned Sessions Judge held the view that on the date of occurrence Putul was residing in the new hut. We have already held that it was not disputed that on the date of occurrence Putul along with her sister and mother was residing in the new hut. But we would like to observe here that this seizure of blouse etc. cannot be considered to be an incriminating evidence.

As regards the ''last seen theory'' the learned Sessions Judge placed implicit reliance upon the testimony P.W. 22 Rakhal Chandra Sarkar who deposed that on the date of occurrence around 12.30 P.M. when he was returning after collecting fire-wood he was passing beside the house of Chandan Paul and at that time he found Ratan and Putul going towards the ditch of the tilla situated near the new house of Chandan. During cross examination be stated that the road along which he was returning is at a distance of about 1 kani to the west of the house of Chandan Paul. So according to him road is not adjacent to the house of Chandan Paul. He also deposed that at about 4 P.M. on that day when he met mother of Nikhil he told her that he saw Putul and Ratan were going towards the ditch. But P.W. 2 Smti Snehabala Paul did not say that P.W. 22 told her that he saw Putul and Ratan going towards the ditch. During cross examination it has been elicited from him that be did not state to Nikhil or his mother that he found Ratan and Putul going towards the ditch. It has also been elicited from him during cross-examination that he did not state this fact to any other although he started in his cross-examination that in the afternoon he went to the place where the dead body was lying and there be met Subhash Sarkar (P.W. 17), Satyendra Bardhan (P.W. 19) and Monoranjan Sarkar and others. He did not give any explanation as to why he did not disclose this fact to any of those witnesses.

That apart the evidence of P.W. 14 does not show when she went to their old house which according to the evidence on record is not far. The exact distance between the new house and old house is however not available in the record. Rather during cross-examination she stated that she left for their old house at about 12 noon. P.W. 22 deposed that he saw the deceased and the accused-Appellant going towards the ditch at noon (12.30 P.M.). Both the witnesses gave the time on surmise. Further during cross examination P.W. 14 stated that she finished taking her meal around 1/1.30 P.M. So, in absence of any corroboration of the evidence of P.W. 22 it is difficult to place implicit reliance upon his evidence that around 12.30 P.M. he saw the deceased and the accused-Appellant going towards the ditch. The evidence falls short of proof. It requires no elaboration that when two inferences are possible to be drawn forms the evidence the one which is favourable to the accused must be accepted. In the instant case, it would be apparent from our discussion of P.W. 14 and 22 that there was no definite time when P.W. 14 left the new house where deceased was staying, So, the evidence of P.W. 22 that he saw the accused Appellant and the deceased going towards ditch around 12.30 P.M. cannot safely be accepted in absence of reliable supporting evidence.

Coming now to the extra judicial confession it is found that learned Sessions Judge placed reliance upon the evidence of P.W. 17, P.W. 29 and P.W. 23. P.W. 17 Subhas Ch. Sarkar who appears to be a member of different community deposed that at about 5 P.M. he came to the new house of Chandan where he found so many persons and according to him at that time Ratan confessed in his presence that on that day he killed his wife. This is the simple version he made about the confession of Ratan. During cross-examination he stated that the Investigating Officer recorded his statement after 6 or 7 days. It appears from the judgment that learned Sessions Judge placed reliance upon this witness. But on perusal of his evidence we find that learned Sessions Judge also recorded that after examination of his statement u/s 161 of Code of Criminal Procedure it was not clear whether he was present or not at the time when such confession was made by the accused Appellant.

Next witness who was relied on by the learned Sessions Judge is P.W. 23 Shri Mani Sarkar. This witness deposed that on hearing hue and cry he went to the place of occurrence and found the dead body of Putul lying on a ditch of a tilla. According to him at about 4/4.30 P.M. Harendra, Subal, Satyendra and others and he called Ratan and his father Monoranjan and brought them near the place where the dead body was lying and during their query Ratan confessed that he had killed Putul. Here it may be re-called that PW. 17 stated that Ratan confessed in presence of him and others in the new house. During cross examination attention of the witness was drawn to his statement recorded u/s 161 of Code of Criminal Procedure where it was found that he did not make such statement that they called and brought Ratan and Monoranjan at that place at about 4/4.30 P.M. The relevant portion of bis statement has been marked as Ext. D-2 which shows that about 5.30/6 P.M. Harendra, Subal, Satyendra and others called Ratan and his father and at that time upon their query Ratan confessed that he killed Putul. But Harendra Paul who has been examined as P.W. 9 stated in his deposition that on that day he reached the place where the dead body was lying at about 6.30 P.M. and found many persons including the Police Officer of Pitra. Out Post there, He did not even make a whisper that Ratan made any sort of confession to them. Similarly, Subal Paul who has been examined as P.W. 8 and Satyendra Bardhan, who has been examined as P.W. 19 did not say anything about the confession of accused Appellant. On the other hand P.W. 19 stated in his cxamination-in-chief that he heard the Police personnel asking Ratan as to whether he had killed Putul but Ratan declined. According to him he found the police personnel assaulting Ratan with a branch of a tree. This P.W. 19 stated further that they asked Ratan to confess but he did not agree.

It is, therefore, clear from the evidence of these witnesses that version of P.W. 23 is also not supported by this witnesses.

Next witness relied on by the learned Sessions Judge in respect of extra judicial confession is P.W. 29 Dulal Miah. This witness was examined by Investigating Officer after 5/6 days of the occurrence. The witness deposed that at about 5 P.M. he went to the house of Chandan Paul and therefrom he went to the place where the dead body of Putul was lying. According to him from that place be came to the new house of Chandan where villagers namely, Subhas Sarkar, Harendra Paul, Mani Sarkar and others brought Ratan and Monoranjan Paul in the new house of Chandan and during their query Ratan told that he killed his wife by lying up with the end of Saree around her neck. He therefore, contradicts P.W. 23 who stated that Ratan confessed at the place where dead body was lying. Besides, his statement that Subhas Sarkar, Moni Sarkar, Harendra and others were present is not found in his statement u/s 161 of Code of Criminal Procedure.

On examination of the evidence of P.W. 9 we find that P.W. 9 turned hostile and learned Sessions Judge permitted the prosecution to put to him leading questions and in course of that not only some leading questions were put to him but also prosecution brought a number of his statements recorded u/s 161 of Code of Criminal Procedure by way of contradiction. It does not transpire that this witness was declared hostile. On the other hand, the prosecution was allowed to examine him in the nature of cross-examination and doing so, prosecution brought a number of his statements recorded u/s 161 of Code of Criminal Procedure in the record by way of contradiction. But as per the provision of Section 145 of Evidence Act it is not open to the prosecution to put a question of the nature of cross-examination to their own witness without declaring him hostile and then cross-examining him. We ate of the view that it is improper for the court to allow such question. Before the previous statement can be used the procedure u/s 145 of the Evidence Act must be observed strictly. The witness should be infomed of his particular statement which is to be used to contradict him and he should given an opportunity of explaining what he meant by that portion of the statement. The procedure to be followed would seem to be first, to ask the witnesses whether he made the previous statement. If the witness returns the answers in the affirmative, the previous statement in writing need not be proved and the cross-examiner may, if he so chooses, leave it to the party who called the witness to have the discripency, if any explained in the course of re-examination. If on the other hand the witness denies having made the previous statement attributed to him or states that he does not remember having made any such statement and it is desired to contradict him by the record of the previous statement the cross-examiner must read out to the witness the relevant portion/or portions of the record which are alleged to be contradictory to his statement in court and give him an opportunity to reconcile the same if he can. It is only when the cross-examiner has done so, that the record of his previous statement becomes admissible in evidence for the purpose of contradicting the witness and can be proved in any manner permitted by law.

Mr. S. Roy, the learned amicus curiae has quite vehemently contended that the extra judicial confession relied on by the learned Sessions Judge cannot be based for making any finding of conviction as this extra judicial confession suffers from a number of infirmities such as about the place of occurrence, time of occurrence and presence of witnesses etc. and that none of the witnesses did state what were the actual words of confession. Mr. Roy contends that extra judicial confession if found vague and ambiguous cannot be relied upon. In other words, what he submitted was that the extra judicial confession to be relied on must show the exact words for the reasons thereof etc. In support of his contention Mr. Roy placed reliance on the decision rendered by the Supreme Court in the case of Heramba Brahma and Anr., Heramba Brahma and Another Vs. State of Assam, where Their Lordships held:

Extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed.

In the instant case the witnesses through whom extra judicial confession was brought do not appear to be intimate to the accused-Appellant or that he had such relation that he could repose confidence on them. That apart it appears from the evidence of Shri Satyendra Bardhan P.W. 19 that soon after his arrival at the place where the dead body of Putul was lying the officer-in-charge of Pitra Out Post along with a constable came there and the police constable assaulted Ratan with a branch of a tree us he declined to confess. P.W. 32 A.S.I. Billa Ranjan Deb of Pitra Out Post deposed that at about 5:10/5:15 P.M. he along with staff came to the place where the dead body of Putul was lying. According to him villagers handed over Ratan to him at the place. It is, therefore, clear from the discussion made above that this extra-judicial confession on which learned Sessions Judge placed implicit reliance is not only vague but it is also not clear at which place and before whom the accused-Appellant made such confession. In view of the evidence of P.W. 19 there is no scope to say that Ratan was brought to the new house before handing him over to police. Here it may also be mentioned that P.W. 35 who conducted autopsy on the dead body stated in her cross-examination that self strangulation was possible.

So, on totality of the circumstances discussed above we are of the opinion that this is a case where it is difficult to make a finding that prosecution succeeded in proving the guilt of the accused beyond all reasonable doubt. There can, however, be no doubt that circumstances raise serious suspicion against the Appellant but suspicion however grave it may be, cannot take the place of proof. The circumstances are so balanced that the benefit of doubt must go to the accused.

For the reasons stated above, we are constrained to hold that the prosecution failed to prove the guilt of accused-Appellant beyond all reasonable doubt. The appeal, is therefore, allowed and the conviction and sentence are set aside. The Appellant is acquitted of the charge u/s 302 of IPC in the benefit of doubt and he is set at liberty.