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2009 DIGILAW 488 (GAU)

Malendra Debbarma v. State of Tripura

2009-07-24

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. Heard Mr. M.K. Roy, learned Counsel for the Appellants. Also heard Mr. R.C. Debnath, learned Special PP for the State. 2. By this appeal, the judgment and order dated 3.6.2005 passed by the learned Addl. Sessions Judge, West Tripura, Khowai in ST No. 20 (WT/K) of 2004 has been challenged. 3. The prosecution case, in brief, may be stated as follows: On 23.1.2003 at about 5.30/6.00 p.m. about 6/7 miscreants, dressed in Assam Rifles uniform, being armed with fire arms trespassed into the house of Smt. Sadhana Debbarma (informant) at East Tekchhaia village under Champahowar Police Station. The informant could recognize the Appellants and Binode Debbarma (absconder). The said miscreants asked Sri Paresh Debbarma, the husband of the informant as to whether he had raised subscription from the villagers. As the husband of the informant expressed his inability to collect subscription, the said miscreants, who dragged and assaulted her husband, had shot at his back causing serious injury to him. The miscreants aforesaid also assaulted the informant, when she tried to rescue her husband. The injured was immediately taken to hospital for treatment. 4. The Police on receipt of oral information from the wife of the injured reduced the same to written complaint and registered a case under Sections 148/149/326/307 IPC and Section 27 of the Arms Act and launched investigation in to the matter. At the close of the investigation, Police submitted the chargesheet against (1) Sri Kamalakanta Debbarma, (2) Sri Samprai Debbarma, (3) Sri Sukha Ranjan Debbarma, (4) Sri Malendra Debbarma, (5) Sri Bodhijung Debbarma and (6) Sri Binode Debbarma under Sections 148/326/307 read with Section 149 IPC and Section 27 of the Arms Act. Sri Binode Debbarma was shown as absconder. The offences being exclusively triable by the Court of Sessions, the case was committed by the learned SDJM, Khowai to the Court of Sessions. 5. The learned Addl. Sessions Judge framed the charge against the Appellants and three others for the offences under Sections 148/326/307 IPC read with Section 149 IPC and Section 27 (2) of the Arms Act to which the accused persons pleaded not guilty. 6. The prosecution examined 8 witnesses including the Investigating Officer and the Medical officer. At the close of the evidence for the prosecution the accused persons were examined under Section 313CrPC. Denying the allegations brought against them, the accused persons declined to adduce evidence. 6. The prosecution examined 8 witnesses including the Investigating Officer and the Medical officer. At the close of the evidence for the prosecution the accused persons were examined under Section 313CrPC. Denying the allegations brought against them, the accused persons declined to adduce evidence. Considering the evidence on record, the learned Addl. Sessions Judge held that the prosecution failed to establish the charges against the accused persons, namely, (1) Sri Sukh Ranjan Debbarma, (2) Sri Kamalakanta Debbarma and (3) Samprai Debbarma and accordingly, they were acquitted from the liability of the charges brought against them. However, the learned Addl. Sessions Judge found the Appellants guilty of the offences charged against them and accordingly convicted them by the impugned judgment and order for the offence under Sections 147/326/307 IPC read with Section 149 IPC and Section 27(1) of the Arms Act and sentenced them to suffer rigorous imprisonment (hereinafter called RI) for two years for the offence under Section 147 IPC. They were also sentenced to suffer RI for ten years for the offence under Section 307 IPC. The Appellants were further directed to suffer RI for three years for the offence under Section 27 (1) of the Arms Act. 7. Being aggrieved by the said conviction and sentence the Appellants have come up with the present appeal. 8. I have heard the learned Counsels appearing on behalf of the parties and perused the evidence on record. In order to appreciate the evidence on record, it will be appropriate to reproduce, in brief, the evidence of the witnesses. The informant, Smt. Sadhana Debbarma, deposing as PW 1, stated that 7/8 persons including the Appellants entered her house and forcibly dragged her husband from their house and fired at him on the road. She also stated that the Appellants went to their house for asking her husband as to whether he collected subscription from the villagers. In her cross-examination she stated that prior to the occurrence she was present with her husband in their house and that she tried to save her husband. This witness was duly cross-examined on behalf of the defence but nothing could be elicited to render her evidence disbelievable. In her cross-examination she stated that prior to the occurrence she was present with her husband in their house and that she tried to save her husband. This witness was duly cross-examined on behalf of the defence but nothing could be elicited to render her evidence disbelievable. From the evidence of this witness, it appears that the Appellants along with others went to their house and shot at her husband after dragging him to the road from the house on the ground of his refusal to collect money for the said miscreants. PW 2 Smt. Suryalaxmi Debbarma, who was the mother of the injured stated that a group of extremists had stormed into their house and shot at his son after dragging him from the house to the road. She clearly stated, that she heard the sound of firing from her house, that one bullet had hit her son Sri Paresh Debbarma (PW 3) on his back and that, amongst the miscreants, she could identify the Appellants and Sri Binode Debbarma (absconder). The witness at the time of giving evidence in the court stated that, as in the meantime, she had lost her eye sight she would not be able to identify the accused. In her cross-examination she stated that for the last three years things were not clearly visible to her. Though the eye sight of this witness was poor, she clearly stated that she could identify the Appellants and Sri Binode Debbarma. She stated on oath "Now, I have lost my eye sight due to my old age, so I will not be able to identify the accused persons." In view of the above, it appears that at the time of incident, the eye sight of this witness was not so bad. Hence, there is no reason to disbelieve her evidence. Sri Paresh Debbarma i.e. the injured was the star witness in this case. Deposing as PW 3, he clearly stated that on 23.1.2003 in the evening about 7/8 members of an extremist group including the Appellants and Sri Binode Debbarma trespassed into his dwelling house. According to this witness, the miscreants asked him as to whether he had raised subscription from the villagers in the name of the extremist group, namely, BNTC and as this witness declined to collect subscription from the villagers they started beating him. According to this witness, the miscreants asked him as to whether he had raised subscription from the villagers in the name of the extremist group, namely, BNTC and as this witness declined to collect subscription from the villagers they started beating him. He stated that the miscreants dragged him away from his house by force and shot at him on the road, close to his house. He also stated that accused Sri Binode Debbarma had a fire arm in his hand and that he had shot at him as a result of which the bullet hit him on the back of his body. According to this witness he lost his consciousness and regained the same at G.B. Hospital and that he had undergone treatment as an indoor patient for 13 days. This witness could identify the Appellants at the time of giving evidence. During the cross-examination, he denied the suggestion that he had falsely implicated the accused persons. He further stated that he could not remember if he had told the I.O. that he was shot by the extremists on the road. He denied the suggestion that he was not shot at by the extremists on the road. So from his evidence, it appears that he was shot on the road. This witness was duly cross-examined on behalf of the defence, but no contradiction could be brought to discredit his evidence. Therefore, from the evidence of the injured himself it is clearly found that the Appellants along with the others went to his house and dragged him away from his house after assaulting him and that one of the miscreants, namely, Binode Debbarma, who was armed with a fire arm, had shot at him causing injury to him. Therefore, it is clearly found that the accused persons including the Appellants had accompanied Binode Debbarma and others for the purpose of asking the injured as to whether he had raised subscription for the extremist group and that due to refusal of the injured to collect such subscription the accused persons had assaulted, dragged to the road and the accused Sri Binode Debbarma, who was armed with a fire arm, had shot at him causing injury to him. Therefore, it can be found that all the accused persons including the Appellants went to the house of the injured with a common intention of asking the injured regarding collection of subscription and the assault and the injury were caused due to his refusal to collect the subscription. Smt. Sapna Debbarma (PW 4), a niece of the injured stated that on the fateful evening her uncle Paresh Debbarma was shot at by the extremists and that she having heard the sound of gunshot from her house, which was situated near the house of the injured, rushed to the house of her uncle and found that her uncle was already taken to the hospital for treatment. She came to know about the occurrence from her cousin Smt. Piran Debbarma i.e. the daughter of the injured. Smt. Piran Debbarma, daughter of the injured, deposing as PW 5, stated that out of 7/8 extremists, three extremists trespassed into their dwelling house and that one of them was armed with fire arm. She stated that her father was dragged away by them from their house and that he was shot at on the road. She also stated that the Appellants and Sri Binode Debbarma entered into their dwelling house. She identified the Appellants in the Court at the time of giving the evidence. She denied the suggestion that she told the I.O. that the miscreants had shot at her father in their courtyard. From the evidence of this witness it is found that the Appellants and Sri Binode Debbarma along with others went to the premises of the injured and the Appellants and Binode Debbarma entered into the house of the injured. It is also found that her father was dragged from their house and that he was shot on the road. Sri Jatish Debbarma, deposing as PW 5, stated that hearing the hue and cry he rushed to the house of the injured and found him lying on the road with bullet injury on his back. He stated that he was told by the wife of the injured that 7/8 miscreants including the Appellants and Sri Binode Debbarma trespassed into the house of the injured and that Sri Binode Debbarma had shot at the injured. This witness further stated that prior to the occurrence he saw the Appellants and Sri Binode Debbarma moving in the village being armed with fire arms suspiciously. This witness further stated that prior to the occurrence he saw the Appellants and Sri Binode Debbarma moving in the village being armed with fire arms suspiciously. In his cross-examination this witness further stated that he was told by the injured, in the hospital, that the injured was shot by Sri Binode Debbarma and that the Appellants were also present with Sri Binode Debbarma. From the evidence of PW 6, it appears that he had no personal knowledge about the incident. He did not see the accused-Appellants causing the injury. He was informed by the wife of the injured and the injured himself. But there is corroboration in the evidence of this witnesses and the PW Nos. 1, 2, 3, 4 and 5 indicating that the Appellants had committed the alleged offences. The Medical Officer, who was examined as PW 7, stated that on 23.1.2009 he was in the G.B. Hospital and that he had examined the injured after receiving him through the emergency unit of the said hospital. He stated that on examination of the injured he found the following injuries: (1) One circular bullet would measuring 2 cm x 2 cm x cavity depth on back side of right side of chest. The nature of injury was grievous. (2) One lacerated injury measuring 3/4" x 1/2" x 1/4" over left supra orbital region. The injury was simple in nature caused by blunt weapon. X-rays of skull, chest were done. On X-ray chest PA view haemothorax in right lower zone was noticed. X-ray chest lateral view-- there was one pallet inside the chest cavity. The Medical Officer exhibited the injury report submitted by him as Ext. 1. In his cross-examination he stated that no blackish mark was noticed in the injury No. 1 and that the injury No. 1 was an entry wound. He denied the suggestion that he submitted the report without examining the patient. From the evidence of the medical officer, it is found that the injured had sustained one bullet injury on the back side of the right chest and lacerated injuries (simple in nature) caused by blunt weapon. From the X-ray of the chest the Medical Officer noticed one palate inside the chest cavity. From the said medical evidence it is found that the injured sustained bullet injury through the back of his chest. From the X-ray of the chest the Medical Officer noticed one palate inside the chest cavity. From the said medical evidence it is found that the injured sustained bullet injury through the back of his chest. The occurrence took place on 23.1.2009 and the Medical Officer examined and found the said injury on the same day. Therefore, from the medical evidence sufficient corroboration is found in favour of the prosecution version that the bullet injury sustained by the injured was caused by the accused persons. PW 8 SI Manik Deb was the I.O. He stated that Smt. Sadhana Debbarma had made an oral complaint to him at Khowai Hospital which was reduced to a written FIR and that he took her Right Thumb Impression (RTI) in the said FIR. He has exhibited the FIR recorded by him as Ext. 2 and his endorsement thereon as Ext. 2(1). The I.O. prepared the sketch map of the place of occurrence which has been marked as Ext. 3 series. In his cross-examination he stated that 'B', 'C' and 'D' of the sketch map were the huts of the complainant and that the mark 'F' and 'G' were entries to the road to the huts of the complainant. PW 5 denied that she had told the I.O. that the miscreants had shot at her father in their courtyard. The attention of PW 5 was drawn to the said statement made under Section 161 CrPC and the same was marked as Ext. A. The I.O. has confirmed that the said statement (Ext. A) was made by the PW 5. In her evidence given as PW 5 this witness stated that her father was shot at on the road. The sketch map Ext. 3 series reveals that the road 'F' to 'G' was adjacent to the courtyard of the complainant's house. Therefore, considering the facts and circumstances of the case, the said discrepancy found, in the evidence of PW 5, was a minor one. The PW 6 denied that he had told that he learnt from the mother of Sri Paresh Debbarma that Binode and others had shot at Paresh. This statement alleged to be made under Section 161 CrPC was marked as Ext. B and the I.O. confirmed that the said witness had made the same before him. The PW 6 denied that he had told that he learnt from the mother of Sri Paresh Debbarma that Binode and others had shot at Paresh. This statement alleged to be made under Section 161 CrPC was marked as Ext. B and the I.O. confirmed that the said witness had made the same before him. In his evidence given on oath the PW 6 stated that he was informed by the wife of the injured about the incident. As this witness was not an eye witness, in view of the forceful evidence by three eye-witnesses, as stated above, it was not very much material as to who had informed the PW 6. 9. Considering the entire evidence on record it appears that prosecution case is based on the evidence of three eye witnesses, namely, Smt. Sadhana Debbarma (PW 1), wife of the injured, Smt. Suryalaxmi Debbarma (PW 2), mother of the injured and the injured himself. There is sufficient corroboration in the evidence of the said eye witnesses on material points inspiring confidence to believe that the Appellants along with others, being armed with fire arm entered into the premises of the injured to ascertain as to whether he had collected the subscription on behalf of the extremist organization and on being refused by the injured to collect money the said extremists, more particularly, the Appellants and Sri Binode Debbarma assaulted and dragged the injured towards the road adjacent to the house of the injured and shot at the injured on his back. The medical evidence (given by PW 7) has fortified the prosecution version that the injured sustained bullet injury. It has been clearly established that the Appellants had accompanied Sri Binode Debbarma, who was armed with a fire arm. Therefore, it can be safely held that the Appellants, who accompanied Sri Binode Debbarma, who was armed with a weapon, had the clear knowledge that the said weapon would be used against the injured. The evidence on record reveals that the purpose of the visit of the Appellants was to ascertain from the injured as to whether he had collected money. Therefore, there is no doubt that the Appellants had the common intention with Sri Binode Debbarma for causing hurt to the injured for his refusal to comply with their direction. The evidence on record reveals that the purpose of the visit of the Appellants was to ascertain from the injured as to whether he had collected money. Therefore, there is no doubt that the Appellants had the common intention with Sri Binode Debbarma for causing hurt to the injured for his refusal to comply with their direction. It has been established that the injured was shot at the back of his chest, which was a vital part of the body. The medical evidence indicates that there was a pallet in the chest cavity of the injured. It can be safely held that the act of causing injury on the back of the chest, due to firing of bullet through fire arm was done with the knowledge or intention that the said act would have caused death of the injured. Therefore, it was a clear case of attempt to murder. It has been sufficiently established that the said act caused injury to the injured. In view of the evidence as aforesaid the prosecution could successfully prove that the Appellants were guilty of the offence under Section 307 IPC read with Section 34 of the IPC. Therefore, in my considered view the learned Sessions Judge committed no illegality by convicting the Appellants for the offence under Section 307 IPC and thereby sentencing them to undergo RI for 10 years. Hence, I find no merit in this appeal to interfere with the conviction and sentence made under Section 307 IPC. 10. Regarding the conviction and sentence under Section 147 IPC the learned Addl. Sessions Judge, in his judgment at paragraph 20, held that the other three accused persons namely, Sukhranjan Debbarma, Kamalakanta Debbarma and Samprai Debbarma were not found guilty of the offences charged with 148/326/307 read with Section 149 and under Section 27 of the Arms Act. The chargesheet was submitted against six persons and one of them (Binode Debbarma) was declared absconder. Therefore, the charge was framed against the Appellants and three others. The said three other persons have already been acquitted. After the acquittal of the said three persons the number of miscreants/accused involved in the said offence came to four. The chargesheet was submitted against six persons and one of them (Binode Debbarma) was declared absconder. Therefore, the charge was framed against the Appellants and three others. The said three other persons have already been acquitted. After the acquittal of the said three persons the number of miscreants/accused involved in the said offence came to four. Under the provision of Section 141 IPC, "an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-- First -- To overcome by criminal force, or show of criminal force, (The Central or any State Government or Parliament or the Legislature of any State), or any public servant in the exercise of the lawful power of such public servant; or Second -- To resist the execution of any law, or of any legal process; or Third-- To commit any mischief or criminal trespass, or other offence; or Fourth-- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth-- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Therefore, if the assembly is found to be of less than five persons, the same cannot be termed as unlawful assembly and the persons involved in such assembly cannot be convicted under Sections147/148 or 149 IPC. 11. In the case of Rameshwar v. State 2003 Cri. L.J. 3176, the conviction under Sections 302/149IPC was altered to one under Sections 302/34 IPC. Therefore, after acquittal of three of the five accused persons, the ingredients of Section 147 IPC was not available in the present case and as such, the conviction under Section 147 IPC was bad in the eye of law. Hence, the impugned conviction and the sentence made under Section 147 IPC is set aside. 12. Therefore, after acquittal of three of the five accused persons, the ingredients of Section 147 IPC was not available in the present case and as such, the conviction under Section 147 IPC was bad in the eye of law. Hence, the impugned conviction and the sentence made under Section 147 IPC is set aside. 12. Though the Appellants were not charged under Section 34 IPC, but in view of the evidence of the eye witnesses it appears that the injured was assaulted and shot at due to his refusal to collect money. As discussed above, it is found that the Appellants along with Sri Binode Debbarma and others went to the injured's house and asked him if he had collected money. Hence, their visit followed by assault and injury was in furtherance of their common intention. Otherwise, there was no reason to accompany Sri Binode Debbarma by the present Appellants. The said evidence was brought to their notice in their examination under Section 313 CrPC. Therefore, the conviction under Section307 IPC read with Section 34 IPC will not cause any prejudice to the Appellants. 13. The learned Addl. Sessions Judge has also convicted the Appellants for the offence under Section27(1) of the Arms Act. From the evidence on record, it appears that the arm was possessed and used by Sri Binode Debbarma. Section 27(1) of the Arms Act reads as follows: 27(1)- Punishment for using arms, etc. -- (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. 14. There is nothing on record to find that the Appellants had used or possessed any arms and ammunition in contravention of Section 5 of the Arms Act. The learned Sessions Judge also held that there was no evidence on record to show that the Appellants were armed with any deadly weapon and as such this act was not covered by Section 148 IPC but by Section 147 IPC to hold a person guilty of the offence under Section 147 IPC must be proved that there was any unlawful assembly as defined in Section 141 Code Civil Procedure. As discussed earlier no such incidents of unlawful assembly has been established. As discussed earlier no such incidents of unlawful assembly has been established. Therefore, the conviction of the Appellants under Section 27(1) of the Arms Act cannot stand. Hence, the conviction and sentence under Section 27(1) of the Arms Act is set aside and quashed. 15. The learned Addl. Sessions Judge also convicted and sentenced the Appellants under Section 326IPC. In order to hold a person guilty of the offence under Section 326 IPC i.e. the offence of causing grievous hurt by dangerous weapons or means, it must be proved that the hurt caused was grievous. The grievous hurt, as defined in Section 320 IPC reads as follows: 320. Grievous hurt -- The following kinds of hurt only are designated as "grievous". First -- Emasculation Secondly -- Permanent privation of the sight of either eye. Thirdly -- Permanent privation of the hearing of either ear. Fourthly -- Privation of any member or joint. Fifthly -- Destruction or permanent impairing of the powers of any member or joint. Sixthly -- Permanent disfiguration of the head or face. Seventhly -- Fracture or dislocation of a bone or tooth. Eighthly -- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 16. There is nothing on record to find that there was emasculation, permanent privation of the eyes, ears, joint, destruction or permanent impairing of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth of the injured. There is also no evidence to find that the injured, during the span of twenty days from the date of the incident, was in severe bodily pain or unable to follow his ordinary pursuits. PW 3 i.e. the injured clearly stated that he was in the hospital for 13 days only. Of course, the Medical Officer (PW 7) stated that the injury No. 1 i.e. the bullet injury on the back of the chest was grievous in nature. But the said injury does not come within the purview of the definition of grievous injury under Section 326 IPC. An injury caused by fire arm also cannot constitute a grievous injury unless the same is covered by Section 320 IPC. But the said injury does not come within the purview of the definition of grievous injury under Section 326 IPC. An injury caused by fire arm also cannot constitute a grievous injury unless the same is covered by Section 320 IPC. Therefore, there is no evidence on record to hold the Appellants were guilty of the offence under Section 326 IPC. In view of the above, the conviction and sentence under Section 326 IPC was bad in the eye of law and as such the same is liable to be set aside. Accordingly, the said conviction and sentence under Section 326 IPC are set aside and quashed. 17. In the light of the above modification the conviction and sentence under Section 307 IPC as recorded by the learned trial Judge is upheld and the convictions and sentences under Sections 147,326 IPC and Section 27(1) of Arms Act are set aside and quashed. Accordingly, this appeal is partly allowed requiring the Appellants to suffer the sentence awarded under Section 307 IPC. Return the lower court records.