JUDGMENT
Hrishikesh Roy, J.
1. Criminal Appeal No: 12 of 1999 is preferred by the two appellants challenging the judgment dated 23-2-1999 in ST (Wt/A) 20 of 1994 rendered by the learned Additional Sessions Judge, West Tripura, Agartala, whereby two accused-appellants have been convicted under Section 396 of the I.P.C. On the basis of the said conviction, the learned trial Court has ordered seven years imprisonment and also a fine of Rs. 2,000/- and in default thereof to suffer further imprisonment for six months to the accused-appellants. Criminal Appeal No. 29 of 1999 is preferred by the ‘State of Tripura against the very same judgment of the learned trial Court seeking enhancement of sentence passed against the two accused convicted under Section 396 of the I.P.C.
2. Oh orders passed by this Court, the two appeals were taken up for hearing together)
3. The case arose out of an incident at 0030 hrs. (mid-night) on 25-4-1987, when a gang of criminals armed with deadly weapons raided the house of Haricharan Datta of village Gajaria under Bishalgarh Police Station Cash, gold ornaments, utensils etc. were looted by the miscreants and in the process three persons, namely Haricharan Datta and his two young sons. Anil Datta and Nikhil Datta were killed.
4. The O/C, Bishalgarh P.S. received information about the incident from one Sukhen Datta of Gajaria village, who turned up at the police station at about 03.10 hrs. (night) of 25-11-1987 and reported the death of the aforesaid three persons by miscreants with sharp cutting weapons. However, the informant was not able to furnish any further details. Accordingly, the police made a GD Entry No. 1150 dated 25-4-1987, whereafter the police proceeded to Gajaria village for carryingout investigation of the case.
5. On arrival of the police at the place of occurrence one Sabita Datta (P.W. 1), wife of one of the deceased Nikhil Dutta, gave information to the police at 04.10 hrs. (night) of 25-4-1987 regarding the incident which took place in the village during the night. The information provided by Sabita Dutta was treated as the ejahar of the case and on the basis of the ejahar, Bishalgarh Police Station Case No. 26(4) 87 under Section 396, I.P.C. was registered. The O/C. took up the investigation himself and arranged for postmortem of the dead bodies of the three deceased and preparation of the inquest reports. Site map was prepared and certain articles were also seized from the place of occurrence. The statement of witnesses available were recorded under Section 161, Cr.P.C. in the raids conducted thereafter, certain accused persons were arrested, but accused-Sankar Das could not be apprehended by the police and was treated as an absconder during the trial.
6. The successor of the I/O. submitted charge-sheet under Section 396, I.P.C. against accused-Naresh Das, Shibcharan Das, Kalipada Das, Bibhutibhusan Das and Sankar Das by showing Sankar as an absconder.
7. The learned Chief Judicial Magistrate, West Tripura District, Agartala took cognizance of the offence under Section 396, I.P.C. and made an effort for securing the attendance of accused-Sankar Das, but the said effort failed. Since the case was exclusively triable by the Court of Sessions, it was committed to the learned Sessions Judge, West Tripura, before whom accused-Naresh Das, Shibcharan Das, Kalipada Das and Bibhutibhusan Das appeared and were eventually enlarged on bail.
8. On charge being framed against the four accused persons under Section 396 of the I.P.C. the accused pleaded not guilty and claimed to be tried. Accordingly, case was transferred to the Court of the learned Additional Sessions Judge. West Tripura, Agartala for trial.
9. The prosecution in order to prove their case introduced 18 witnesses and the defence also produced 7 witnesses to prove their plea of innocence.
10. The learned trial Court after consideration of the evidences adduced on behalf of the prosecution and the defence gave a finding that murder of three persons was committed during commission of dacoity and further found that the prosecution has been able to prove the case under Section 396, I.P.C. against accused-Naresh Das and Shibcharan Das alias Sibu alias Dulal beyond all reasonable doubt. In so far as accused-Bibhutibhusan Das and Kalipada Das, the learned trial Court held that the prosecution has failed to prove the case against these two accused beyond all reasonable doubt. Accordingly, the learned trial Court ordered for conviction of the two appellants herein under Section 396, I.P.C., whereas accused-Kalipada Das was ordered to be acquitted by giving him the benefit of doubt and accused-Bibhutibhusan Das was ordered to be acquitted.
11. We have heard Mr. P.K. Biswas, the learned Counsel, who represents the two accused-appellants and Mr. A. Ghosh, the learned P.P. in-charge, who represents the State in these proceedings.
12. Mr. Biswas, the learned Counsel has submitted that in the instant case the G.D. Entry No. 1150 (Exbt. P-14) is the information, which discloses a cognizable offence and accordingly, the said GD Entry recorded on the basis of information given by one Sukhen Dutta should be treated as the FIR under Section 154 of the Cr.P.C. and the information (Exbt. P-1), which was given by P.W. 1, Sabita Dutta before the police at the place of occurrence, should not be treated as the FIR in the case. Mr. Biswas submitted that the information given by P.W. 1 at the place of occurrence was in course of the investigation after the police were informed that a cognizable offence has been committed and accordingly the said information, treated by the police and the prosecution as the FIR, cannot be used as an FIR as the said information is hit by the provisions of Section 162, Cr.P.C.
13. The learned Counsel further submits that the FIR (Exbt. P-1) is not to be relied upon as per the requirement of Section 162, Cr.P.C. The G.D. Entry No. 1150 recorded on the basis of information given at the police station has to be treated as the FIR and the said FIR (G.D. Entry), does not disclose the names of any of the assailants and accordingly, the available evidence has to be weighed against the accused-appellants, by disregarding the contents of the FIR (Exbt. P-l) given by P.W. 1. It may be relevant to note here that in the FIR (Exbt. P-1), P.W. 1 had mentioned about the role of the absconder accused-Sankar in the incident and further claimed that she recognised the two appellants herein, Naresh and Shib charan (Dulal), who are brothers of Sankar, in light of torch.
14. The further submission made by the learned Counsel for the appellants is that there are seven eye-witnessness of the incident on the night of 25-4-1987 and the version given by the eye-witnesses are not sufficient to conclusively establish the guilt of the accused-appellants inasmuch as the incident happened in the middle of the night and the claim of recognition of the accused-appellants by the eye-witnesses by the light of torch or by the sound of their voice is un-believable. The further submission made is that while committing dacoity, it would be highly improbable for the accused to commit a dacoity in a village where they are well known, without covering their faces or with-out making an effort to hide their identities and accordingly, the story put forward by prosecution regarding recognition of the accused by the witnesses is highly improbable and accordingly, the benefit of doubt should be given to the accused-appellants.
15. At this stage, it might be appropriate to refer to the evidences adduced on behalf of the prosecution. In so far as P.W. 1, Sabita Dutta is concerned, apart from being the informant on the basis of whose information the FIR (Exbt. P-1) was registered, the said witness is also the wife of deceased-Nikhil Dutta. In her exarnination-in-chief, P.W. 1 stated that on the fateful night at about 12 mid-night 7/8 persons entered her house by breaking down the door. When she and her deceased-husband-Nikhil woke up after hearing the noise, the miscreants started beating Nikhil with sticks and some of them also started to take away some of the articles from the house. P.W. 1 specifically stated that she saw the absconder accused-Sankar Das stabbing her husband by dagger and also claimed that Sankar was abusing her in filthy language. She further stated that apart from Sankar, she could recognise the two appellants-Naresh and Shibcharan from the light emitted from the torch carried by the miscreants. She further claimed that she could recognise the persons, as they were residents of her locality.
16. P.W. 3,Smt. Milan Rani Dutta, who is also an eye-witness, is the wife of another deceased-Anil Dutta. P.W. 3 in her evidence stated that Sankar Das and Naresh Das entered into her house by breaking open the door and that Sankar (absconder) and appellant-Naresh started chopping her husband by directing strokes by dagger. She stated that she could recognise these two from the focus of torchlights, which were in the hands of the miscreants.
17. So far as P.W. 4, Smt. Rani Bala Dutta is concerned, she too is the wife of another deceased-Haricharan Dutta. She saw Sankar (absconder accused) taking away her deceased son Anil, whereafter she rushed to the nearby BSF Camp.
18. Smt. Laxmi Rani Dutta, wife of Sushil Dutta is P.W. 12 in the case and is the daughter-in-law of deceased-Haricharan Dutta. She claimed that Sankar (absconder) abused her in slang language and claimed that accused-appellant-Naresh was with Sankar at that time.
19. P.W. 13, Sushil Dutta claimed that when he went out his house after hearing the noise of breaking of doors of deceased-Anil Dutta’s house, he saw appellant-Naresh and Naresh abused the P.W. 13 in slang language and also chased him and the P.W. 13 had to take shelter in a nearby jungle. He also stated in his evidence that he saw the other appellant-Shibcharan alias Dulal when Naresh abused him. He further claimed that he heard Kalipada gave a call to Naresh to withdraw from the place and Kalipada was recognisedby his voice.
20. P.W. 14 is Chandan Dutta, a son of deceased-Haricharan Dutta, who was present at the place of occurrence, but did not claim to have recognised any of the assailants by. himself. However, he claimed that P.W. 1 Sabita informed him that she identified Naresh and Shibcharan as well as the absconder accused-Sankar. P.W. 14 further stated that he was informed by P.W. 13, one of the eye-witnesses that the said eye-witness recognised Naresh, Kalipada and Shibcharan as well as. the absconder accused-Sankar.
21. P.W. 15,Gita Rani Dutta although was present near the place of occurrence, did not actually recognise any of the assailants. However, she deposed that she was told by Sushil Dutta, Sabita Dutta and Milan Dutta that they had recognised the two appellants-Naresh and Shibcharan, absconder accused-Sankar and also Kalipada, who was acquitted by the learned trial Court.
22. The other prosecution witnesses, namely P.W. 2, P.W. 4, P.W. 6, P.W. 8, P.W. 9, P.W. 16 and P.W. 17 do not appear to be very material witnesses in the present case.
23. P.W. 10 is the Sub-Inspector of Police, who accompanied the O/C, Bishalgarh Police Station to the place of occurrence and made the inquest.
24. P.W. 11, Dr. Ramesh Ch. Das conducted the post-mortem on the three deceased persons and opined that the death was on account of multiple stab injuries with sharp weapon leading to haemorrhagic and neurogenic shock.
25. P.W. 18, Subhash Sinha, the Officer-in-Chief of Bishalgarh Police Station, who carried out the investigation in the case stated that while recording the G.D. entry (Exbt. P-14) at 3.10 a.m. in the early hours of 25-4-1987, the informant Sukhen Dutta although gave information about the death of three persons in Gajaria village, did not, however, disclose the names of any of the accused persons. He further stated that GD Entry No. 1150 was recorded at 3.10 a.m. on 25-4-1987, whereafter he immediately proceeded to Gajaria village where he reached at about 3.30 a.rn. He further stated that at the site he recorded the statement of witness Sabita Dutta (P.W. 1) and obtained her signature on the said statement (Exbt. P-1) and treated the said statement as the F.I.R. of the case.
26. On behalf of the defence, as many as 7 witnesses were produced. D.W. 1 is a witness, who stated that appellant-Naresh was engaged as a tutor of his son from Monday to Friday. Similarly, D.W. 2, Profulla Ghosh also informed that appellant-Naresh was engaged as a tutor of his daughter in the morning hours from 8-9.30 a.m. The defence by producing these two witnesses tried to cast doubt on the presence of appellant-Naresh at the place of occurrence at night.
27. D.W. 6, Arun Debnath, a pan shop keeper and D.W. 7, Yadav Chandra Das were introduced by the defence in favour of Naresh, as they claimed that they saw appellant-Naresh till about 11 p.m. on the night of the occurrence and defence submitted that it is improbable that Naresh could be present during the raid at Gajaria village.
28. D.Ws. 4 and 5 were witnesses produced by the defence, who vouched for attendance of appellant-Naresh in the office as Naresh was employed as a Draftsman in the Public Health Engineering office at Agartala.
29. D.W. 3, Manoj Kanti Das was introduced to show the absence of appellant-Shib Charan at the place of occurrence as the said D.W. 3 stated that appellant-Shib Charan stayed in his house till 10.15 p.m. (night) and thereafter left D.W. 3’s house by a bicycle.
30. The learned trial Court after considering the evidences adduced by the prosecution held that from the evidences of eyewitnesses the presence of the two appellants along with the absconder accused-Sankar is clearly established at the place of occurrence. He further held that there is no contradiction on material points in the evidences adduced. The learned trial Court also took note of the background of the witnesses, who were not educated and rural inhabitants and opined that as the accused were from the same locality, it can be believed beyond doubt about their identification and presence of the appellants in the dacoity case committed at Gajaria village.
31. In so far as the evidences adduced on behalf of the defence to show that appellant-Naresh could not possibly be present at the place of occurrence as alibi on his behalf has been given by the defence witnesses, the learned trial Court opined that it is not believable that the defence witnesses would distinctly remember the time they were with Naresh, the TV programme witnessed by Naresh, after so many years. The learned trial Court further opined that signature of Naresh in the attendance register in his place of employment cannot by itself indicate that Naresh was present in the office during the entire office hours and accordingly declined to place full reliance on the attendance register produced on behalf of the defence.
32. The learned trial Court further held that there is no enmity of the accused persons with the eye-witnesses and there is no reason for the witnesses to falsely accuse the accused persons in connection with the murder and dacoity committed in their houses.
33. The learned trial Court also observed that since the police reached the place of occurrence by 3.30 a.m. immediately after receipt of information, whereafter the statement of P.W. 1 Sabita Dutta was recorded and was treated as an FIR, the same was rightly treated as an FIR and arguments advanced on behalf of the defence not to treat Exbt. P-l as the FIR was, accordingly rejected.
34. Now, let us consider the submissions made on behalf of the appellants as regards the admissibility of Exbt. P-l as an FIR in the case. An FIR is not a substantive piece of evidence and the law permits the FIR to be used to contradict or supplement other evidences in a case. In the instant case, even if the G.D. Entry 1150 recorded at 3.10 a.m. (Exbt. P-14) is treated as an FIR in the case, where the names of the accused-appellants have not been disclosed, yet that by itself may not be the final word in the matter.
35. It is well settled by the Supreme Court in Supdt. of Police, CBI v. Tapan Kr. Singh that a First Information Report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant, He may not know how the occurrence took place, If the information reveals commission of a cognizable offence, the police has to set in motion the investigation process to collect all the necessary evidence and thereafter to take action in accordance with law.
36. Furthermore, when two informations are recorded and it is contended before the Court that one projected by the prosecution as the FIR is not really the FIR but some other information recorded earlier is the FIR, that is a matter which the Court trying the accused has the jurisdiction to decide.
37. The decisions of the Supreme Court in the case of Chittar Lal v. State of Rajasthan and also in the case of Satnam Singh v. State of Rajasthan can also be usefully referred to understand the consequence of non-mentioning of the names of the eye-witnesses or the accused in the G.D. Entry No. 1150 (Exbt. P-14). It has been held by the Apex Court that omission to mention names in the information first furnished to the police will not justify the rejection of the evidence of eye-witnesses, where the testimony of the eye-witnesses tested on the touchstone of credibility and reliability is found to be reliable. In such situation, there is no legal impediment to convict the accused on such evidences of eye-witnesses.
38. It may also be noted that there is no material contradiction in the contents of G.D. Entry 1150 (Exbt. P-14) where information about dacoity and murder of three persons have been given without giving the names of the accused persons, whereas in the FIR (Exbt. P-1) the names of the accused have also been provided. The incident happened at dead of night and apart from looting of articles as many as three brutal murders have been committed. The miscreants were running amok at dead of night breaking down doors and attacking the inmates with deadly weapons and threatening others and this was going on for nearly an hour in Gajaria village during night time. Obviously, the villagers were panic stricken and even a stout hearted person would find it difficult to keep his composure and give precise information when informations were furnished to the police during night time itself by the informant, When as many as 3 members of a family have been done to death in a brutal manner by multiple stab injuries in a raid conducted in a rural village at dead of night, it would not be unlikely that the informant was under severe psychic trauma at the time of giving the information leading to recording of G.D, Entry 1150. Thus in not tramatic stage, the informant may not have given the names of the attackers and said omission under the circumstances may not be fatal for the prosecution. Unfortunately, the informant Sukhen Debnath on the basis of whose information the G.D. Entry 1150 was recorded, was not produced before the Court as a witness and could not be subjected to question regarding the omission to mention the names of the accused persons when information contained in the said G.D. entry was provided.
39. However, it should be noted that the FIR (Exbt. P-1) was recorded at 4.10 a.m. (night) when the witnesses including the informant P.W. 1 would be expected to be shell shocked by the violent murder of their dear ones as well as the reign terror let loose by the miscreants for nearly one hour at night. This was hardly the time one would expect that the witnesses would confer and decide on bringing forward false allegations in the shape of the information provided and noted down as the FIR at 4.10 a.m. on the night of 25-4-1987. Therefore, it does not appear that the information provided in the FIR by P.W. 1 Sabita Dutta is a case of embellishment or concoction. Therefore, the omission to mention specific details in the GD entry, cannot lead to a conclusion of disbelieving the eye-witnesses, who have submitted consistently on material points in the prosecution case about presence of the two appellants at the place of occurrence as a part of the dacoit group led by the absconder accused-Sankar, who is the brother of the two appellants. There is no contradiction of the evidence on the material points in the prosecution story of dacoity and murder.
40. The Court cannot also be fastidious with mere omissions of witnesses, in the statements recorded under Section 161, Cr. P.C. to which attention of this Court has been drawn by the learned Counsel appearing for the accused-appellants. Such omission in the perception of the Court is not fatal as one has to take into account the traumatic state of mind of the informants when the police recorded their statement Just after the brutal murder of three persons and hour long looting in the victims’ village dring midnight hours. What is more important is that there is no inconsistency in the information given to harbour doubt about the truthfulness of the information,
41. As regards the contents of an FIR, the same can be used only to discredit the informant and not other witnesses and as such the attempt to discredit the eye-witnesses on the basis of omissions in the G.O, Entry (Exbt. P-14) is not acceptable. Even if the said G.D. entry is to be treated as an FIR and the FIR (Exbt. P-1) can’t be relied upon under Section 162 of the Cr. P.C., it cannot lead to a conclusion that the eye-witnesses on their own have not been able to establish the guilt of the accused-appellant beyond reasonable doubt.
42. The submission of the learned Counsel that the accused persons being known to the victims, would hardly be expected to attack without making an attempt to cover their identity, is a submission which does not appeal to this count. The reluctance of this Court to accept this submission stems from the fact that the utterances of the accused during the raid at night, which are extracted hereinbelow indicate, that the accused persons appear to be attacking with an aim to teach the deceased and their family members a lesson. The utterances indicate that the attackers instead of trying to hide their identity, were making utterances towards the victims to make sure that they definitely and positively identify the attackers. This indicates that the accused persons were acting like dare devils and this would explain why they did not make any attempt to hide their identities from the victims. The utterances made in Bengali by the attackers clearly indicate that contrary to normal behaviour, they did not want to conceal their identities.
43. In so far as the bar of Section 162, Cr. P.C. for accepting the contents of the FIR (Exbt. P-1), this Court is of the view that even if the contents of the FIR (Exbt. P-1) are disregarded and only the evidences of the eyewitnesses are taken note of, it can be seen from the evidence of P.W. 1 that she had recognised both the appellants. Similarly, P.W. 3 had recognised appellant-Naresh while he was attacking with dagger. Similarly, P.W, 12, who was abused by the absconder accused-Sankar in slang language also saw appellant-Naresh with Sankar (absconder). P.W. 13 had recognised appellant-Naresh, who had also hurled abuses at the said P.W. and also recognised the appellant No. 2-Sibu, who was standing with Naresh at that point of time.
44. From the evidences of the aforesaid four eye-witnesses, the presence of the two accused-appellants at Gajaria village during the night of 25-4-1987 is clearly established. It is also clearly established that these two accused-appellants were part of the raiding party in the said village, who were involved with killing and looting in the said village, which carried on for nearly one hour at night. Thus, by virtue of their being present and being part of the raiding party, whose attack led to brutal death of three persons as well as looting of goods of the deceased, even though specific role in the offence may not be attributable to the two accused-appellants, the accused-appellants cannot escape their liability for the offence of dacoity under Section 396, I.P.C. committed at Gajaria village. All the essential ingredients of offence of dacoity with murder are present in the instant case. It is clearly established beyond reasonable doubt that the two appellants-Naresh and Shib Charan were a part of a group of more than five who committed dacoity. It is also established that they were acting conjointly. Murder has been committed by one or more persons of this group leading to death of three persons. It is also clearly established that murders were committed in course of dacoity.
45. The death occurred of the three deceased when they were brutally attacked by sharp edged weapons and they died through multiple injunes committed on their persons. The oral evidence of the eye-witnesses adduced are in consonance with the injury report of the deceased persons and accordingly, this Court is of the view that this is not a fit case for allowing the criminal appeal filed by the two accused-appellants. Accordingly, the verdict of guilt pronounced by the learned trial Court against the two accused-appellants is confirmed.
46. In so far as the plea of enhancement of sentence pressed forward through Criminal Appeal No. 29 of 1999, preferred by the State, it can be noted that the learned trial Court had decided to be lenient after taking note of the background of the accused-appellants and also the position of their dependents.
47. But while imposing sentence, various factors are to be kept in mind by a Court and some of the points to be borne in mind by Courts while deciding on the sentence can be culled out from some of the leading judgments of the Supreme Court on the principles of fixing sentences.
48. In Sevaka Perumal v. State of Tamil Nadu the Apex Court held that the facts and circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the arena of consideration. It was further observed that undue sympathy to impose inadequate sentence would do more harm to the justice system, which would undermine the public confidence in the efficacy of law.
49. Similar guidelines have been laid down by the Supreme Court in Surjit Singh v. Nahara Ram and (Sushil Murmu v. State of Jharkhand for deciding on the sentence to be imposed in a given case.
50. The Supreme Court has also reiterated in Dhananjay Chatterjee v. State of West Bengal ; Ravji v. State of Rajasthan ; State of M.P. v. Ghanashyam Singh ; Slate of M.P. v. Munna Choubey and in Deb Narain Mandal v. State of U.P. to the effect that credibility of the justice delivery system is affected when Courts fail to respond to society’s cry for justice against the criminal. A duty is cast on the Courts to impose punishment befitting the crime so that Courts reflect public abhorrence to crime. The Court must not only to keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large, while considering the imposition of appropriate punishment.
51. In the instant case, during the course of a well planned operation conducted at dead of night, while targeting the life and property of the victims, 3 persons closely related to each other have been done to death by inflicting multiple injuries with lethal weapons on the body of the deceased. The deaths do not appear to be incidental or accidental in course of dacoity but appears to be one of the pre-planned objectives of the assailants. The attackers had no hesitation in inflicting fatal blows on the victims in front of their wives and other relations. The attackers also continued thejr relentless attack lasting an hour at the dead of night till they were able to achieve their planned objective. The brutality and motivated nature of attack indicate a well designed evil plot where even though who could save themselves were terrorised into silence. The attackers continued their assault without any effort to hide their identity, possibly with the confidence that they will not have to face the consequences of their crime. Such were the circumstances under which three, a father and two of his married sons have been killed leaving behind their surviving widows and other family members to live through the rest of their lives with the horrific memory of the night of 25th April, 1987.
52. Considered in light of the above circumstances, the leniency shown to the accused by the learned trial Court with reference to the background of the accused and their families appears to be misplaced. Accordingly, the appeal of the State is allowed by directing that the two accused/appellants be sentenced to life imprisonment instead of seven years as has been ordered by the learned trial Court. The sentence is enhanced accordingly.
53. With the aforesaid orders, the two appeals are disposed of.