Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 305 (GAU)

Sujit Shil v. State of Tripura

2009-05-08

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This revision under Sections 397 and 401 Code of Criminal Procedure is directed against the judgment and order dated 7.4.2003 passed by the learned Addl. Sessions Judge, Kamalpur, North Tripura in C.R. Appeal No. 01 of 2003 arising out of the conviction and sentence dated 17.12.2003 passed by the learned SDJM, Kamalpur, North Tripura in GR. Case No. 140 of 1996. The accused Petitioners (hereinafter referred to as the Revision Petitioners) were prosecuted on the basis of a complaint lodged by Smt. Sumitra Das, W/O Sri Sukumar Das on 8.9.96 with the O.C. Ambassa Police Station. The said complaint was registered as an FIR being ABS PS Case No. 42 of 1996 under Section 326 IPC. In the FIR aforesaid it was alleged that in the evening of 7.9.1996, while the complainant's husband Sri Sukumar Das was working in his paddy field, the accused persons, namely, Sri Harimohan Shil, Sri Sujit Shil and Sri Gopal Shil attacked Sri Sukumar Das and Sri Sujit Shil stabbed the victim with a dagger causing injuries to his person. The victim was taken to the hospital for medical treatment. After registering the case aforesaid, the Police launched investigation into the case and submitted chargesheet against the revision Petitioners for the offence under Section 326 read with 34IPC. The learned Magistrate framed charge under Section 326 IPC to which they pleaded not guilty. The prosecution examined as many as 8 witnesses including the I.O. Considering the materials on record, the learned SDJM, Kamalpur convicted the revision Petitioners for the offence under Section 326 read with Section 34 IPC and sentenced Sri Sujit Shil (since deceased) to suffer RI for three years and to pay a fine of Rs. 2,500/-, in default, further RI for three months and Sri Harimohan Shil and Sri Gopal Shil to suffer RI for two years and to pay a fine of Rs. 2,500/-, in default, further RI for three months. Being aggrieved by the said judgment of conviction and sentence the revision Petitioners preferred an appeal before the learned Addl. Sessions Judge, Kamalpur, North Tripura and the learned Addl. 2,500/-, in default, further RI for three months. Being aggrieved by the said judgment of conviction and sentence the revision Petitioners preferred an appeal before the learned Addl. Sessions Judge, Kamalpur, North Tripura and the learned Addl. Sessions Judge having heard both the sides modified the impugned conviction under Section 326 IPC to one under Section 324 IPC and considering the suffering and the mental anxiety undergone by the revision Petitioners since 1996 i.e. the time of institution of the case, sentenced them to undergo SI for three months and to pay a fine of Rs. 1,000/- each, in default, further imprisonment for fifteen days. Being aggrieved by the said judgment of the learned Addl. Sessions Judge the revision Petitioners have come with this revision on the ground that the conviction was based without any legal evidence. 2. I have heard Mr. S. Bhattacharjee, learned Counsel for the Petitioners and Mr. A. Ghosh, learned Addl. PP for the State. 3. Producing a death certificate it is submitted that Sri Sujit Shil, one of the revision Petitioners expired on 26.3.2005 i.e. during pendency of this revision. The learned Counsel for the revision Petitioners submitted that this revision survives against the revision Petitioners Sri Harimohan Shil and Sri Gopal Shil. Learned Addl. PP has supported this contention. In view of the above, we are required to examine if there is legal evidence against Sri Harimohan Shil and Sri Gopal Shil. Learned Counsel appearing for the revision Petitioners submitted that except the evidence of the victim himself there is no other evidence supporting the prosecution version and as such for want of corroboration, the impugned order of conviction and sentence is liable to be set aside. Contesting the said argument, the learned Addl. PP submitted that in a given situation like the present one, the conviction can be based even on the basis of the evidence of the victim, whose statement is found to be reliable. The learned Addl. PP submitted that considering the facts and circumstances of the case, the learned trial Judge committed no illegality by convicting the revision Petitioners on the basis of the evidence on record. 4. The learned Addl. PP submitted that considering the facts and circumstances of the case, the learned trial Judge committed no illegality by convicting the revision Petitioners on the basis of the evidence on record. 4. In order to appreciate the evidence adduced by the prosecution, I feel it proper to briefly narrate the evidence of the witnesses as follows: Shri Sukumar Das i.e. the victim deposing as PW 2 state that on 7.9.96, while he was working in the field the accused persons suddenly attacked him and the accused Sujit Shil had stabbed him by a dagger causing injuries on his throat. He further stated that the accused persons dragged him towards a cherra and that he became senseless. This witness further stated that after regaining sense at Kulai Hospital he narrated the incident to his wife, who lodged the FIR. This witness was duly cross-examined on behalf of the defence and nothing could be elicited to render his evidence disbelievable. He denied the suggestion that for causing damage to the agricultural produce by ducks and goats he had enmity with the accused persons. From the cross-examination of the victim nothing could be brought out to indicate that he had any reason to falsely implicate the accused persons who were his neighbourers. Smt. Sumitra Das, wife of the victim (Sri Sukumar Das) deposing as PW 3 stated that on the fateful evening one Nirod Suklabaidya went to her house and asked her for a shirt and a lungi of the victim for the purpose of taking the victim to hospital. On being so informed, she, after giving the wearing apparels of the victim, rushed to the hospital and found her husband in injured condition. She stated that, on being asked, her husband told her that the revision Petitioners had assaulted him and that accused Sujit Shil had given a dagger blow on his neck. This witness was duly cross-examined on behalf of the defence, but no contradiction could be brought out to discredit her evidence. Rather, a careful scrutiny of the evidence of PW 2 and PW 3 indicates that there is sufficient corroboration in their evidence. Sri Nirod Suklabaidya, who informed the PW 3 was tendered by the prosecution and his cross-examination was declined. Thus, it appears that for the reasons best known to it the prosecution declined to examine him as a witness. Dr. Sri Nirod Suklabaidya, who informed the PW 3 was tendered by the prosecution and his cross-examination was declined. Thus, it appears that for the reasons best known to it the prosecution declined to examine him as a witness. Dr. A.K. Mahapatra deposing as PW 4 stated that he examined the victim Sukumar Das and found the following injuries: Incised penetrating size ½" length anterior aspect of neck right side. Nature of injury was dangerous (grievous). Injury was caused by sharp weapon. The Medical Officer found injury on the anterior aspect of the right side of the neck and opined that the injury was grievous in nature caused by sharp weapon. The said medical evidence lends support in favour of the evidence of the victim regarding the injury sustained by the injured. PW 6 Sajal Pal was tendered by the prosecution and his cross-examination was declined. PW 7 investigated the matter and the PW 8 submitted the chargesheet. From the cross-examination of the said I.O. no contradiction could be proved to disprove the statement given by the prosecution witnesses. 5. Though the learned Counsel appearing for the revision Petitioners submitted that no independent witnesses were examined, there is nothing on record to show that any other person was available at the place of occurrence at the time of incident. In his cross-examination the PW 7 stated that some Mog persons (members belong to the Mog community) were residing near the place of occurrence, that one Buddhist Temple was situated at a distance of about 200 yards from the place of occurrence and that it was raining at that time. This witness nowhere stated that any person residing near the place of occurrence came out to witness the occurrence. In view of the above, circumstances as no body appears to have witnessed the occurrence non-examination of any independent witness is not fatal for the prosecution. 6. From the medical evidence it is clearly found that the victim sustained cut injury on his neck on 7.9.96 and he was examined by the Medical Officer on the same night at 12.25 a.m. The victim himself stated that, on 7.9.96, in the evening, while he was working in his paddy field he was given a blow with a dagger by Sujit Shil. The wife of the victim on being informed by one Nirodh Suklabaidya rushed to the hospital and found her husband in injured condition. The wife of the victim on being informed by one Nirodh Suklabaidya rushed to the hospital and found her husband in injured condition. From the above circumstances, it is clearly found that the victim sustained the said injury in the evening of 7.9.96. Now, the question is as to who had caused the injury. The answer has been given by the victim himself. He clearly stated that the revision Petitioners who were his neighbourers attacked him and Sujit gave him a dagger blow and all of them had dragged him to a cherra. This evidence of the victim remained undemolished. That apart, the victim told his wife, when the latter met him in the hospital, regarding the injury caused by the revision Petitioners. In view of the above, I find sufficient force in the contention of the PW 2 to believe that he was assaulted by the accused persons. From the evidence on record, I find nothing to hold that the victim had any reason to falsely implicate the revision Petitioners, who were his neighbourers. Hence, it appears that the evidence of PW 2 was reliable. In view of the above, I find no reason to disbelieve the PW 2. In the attending circumstances, I do not find any sufficient force in the contention of the learned Counsel for the revision Petitioners that the conviction was bad for want of legal evidence. 7. The learned Counsel for the revision Petitioners further advanced the arrangement that there was a delay in lodging the FIR and as such the conviction was bad in the eye of law. Perusing the FIR it appears that the complaint was received by Police on 8.9.96 and the occurrence took place on 7.9.96 in the evening. The wife of the victim (PW 3) lodged the FIR. She got the information from one Nirodh Suklabaidya in the evening of 7.9.96 that her husband, who was working in the paddy field, was required to be taken to hospital and on receipt of such information she rushed to the hospital where she met her husband in injured condition. The Medical Officer (PW 4) examined the victim at about 12.25 a.m. i.e. in the midnight. Her husband being hospitalized in such a situation it was quite natural on her part to rush to hospital first, instead of going to Police Station and remaining busy with the injured during the night. The Medical Officer (PW 4) examined the victim at about 12.25 a.m. i.e. in the midnight. Her husband being hospitalized in such a situation it was quite natural on her part to rush to hospital first, instead of going to Police Station and remaining busy with the injured during the night. Therefore, filing of the FIR on the next date i.e. on 8.9.96 does not appear to be fatal for the prosecution. Hence, I fail to find force in the contention of the learned Counsel. 8. From the discussions made above, I am of the considered view that the learned Addl. Sessions Judge committed no illegality by convicting the accused persons under Section 324 IPC. Accordingly, the conviction is upheld. 9. The occurrence took place as far back as on 7.9.96 and accused Petitioners were arrested and detained in custody for some time in 1996 itself. On being convicted by the learned SDJM they had to prefer an appeal before the learned Addl. Sessions Judge and being unsuccessful they approached this Court. During this period they have certainly suffered lot of troubles and mental anxiety. During the pendency of the revision petition Sri Sujit Shil (the person who inflicted the dagger blow causing injury on the victim) died. Therefore, it appears that the revision Petitioners have lost one of their brothers also. The learned Addl. Sessions Judge rightly observed, while passing the sentence, that the Appellants/revision Petitioners suffered mental anxiety since 1996. With the above observation, the learned Addl. Sessions Judge modified the sentence and directed them to suffer imprisonment for three months and to pay a fine of Rs. 1,000/- each, in default, to suffer imprisonment for fifteen days. The revision Petitioners, who are peacefully living in the society along with their family for the last fifteen years. Considering the above, if at this stage, they are required to go to Jail for undergoing the imprisonment that too for a short period of three months only, apart from their suffering from inconvenience and mental agony, their family life will be adversely affected. This may have far reaching affect on them as well as the members of their family also. Section 324 IPC has prescribed the provision for imposing the penalty of only fine also instead of imprisonment or both. Therefore, in appropriate cases, accused persons can be awarded the punishment of only fine. This may have far reaching affect on them as well as the members of their family also. Section 324 IPC has prescribed the provision for imposing the penalty of only fine also instead of imprisonment or both. Therefore, in appropriate cases, accused persons can be awarded the punishment of only fine. In my view, considering the entire facts and circumstances of this case, the role played by the revision Petitioners and the mental anxiety already suffered by them, a punishment of only fine will be sufficient to meet the ends of justice. 10. Accordingly, I modify the sentence requiring the revision Petitioners to pay a fine of Rs. 1,000/- (rupees one thousand) each, in default, to suffer imprisonment for fifteen days. 11. With the above observation, the appeal is partly allowed. Bail bonds shall stand discharged. Return the case records.