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2009 DIGILAW 643 (GAU)

Bakul Rani Das v. State of Tripura

2009-09-05

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. Heard Mr. A.C. Bhowmik, learned Counsel along with Mr. A. Bhowmik, learned Counsel for the Appellants and Mr. A. Ghosh, learned Addl. PP for the State. 2. This appeal under Section 374(2) of the Code of Criminal Procedure (for short, 'CrPC') is directed against the judgment and order dated 4.5.02 passed by the learned Addl. Sessions Judge, Belonia, South Tripura in Sessions Trial No. 23 (ST/B)/2001 whereby the Appellants were convicted under Section 326/34 Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to suffer rigorous imprisonment (for short 'RI') for two years each and to pay a fine of Rs. 2,000/- each, in default, to suffer further rigorous imprisonment for six months. 3. The prosecution case, in brief, may be stated as follows: On 6.4.2000 at about 3.30 p.m., when the informant Sri Pabitra Debnath (P.W.1) along with his mother Smt. Shabita Debnath (P.W.4) went to fetch their cow from the field, the accused-Appellants, namely, Smt. Bokul Rani Das, Smt. Kusum Bala Pal and Smt. Purnima Das, being armed with dao assaulted them causing injuries on various parts of their bodies. Sri Pabitra Debnath (P.W.1) in the evening of the same day lodged the FIR with Officer-in-Charge, Belonia Police station. On receipt of the FIR, Police registered a case under Sections 326/307/34 IPC against the accused-Appellants, launched investigation into the matter, got the injured examined by the Medical officer and at the close of the investigation submitted chargesheet for the offences under Section 326/307/34 IPC and forwarded the Appellants to the court to stand trial. The offence under Section 307 IPC being exclusively triable by the court of Sessions, the learned Judicial Magistrate, First Class committed the case to the court of learned Addl. Sessions Judge. 4. The learned Addl. Sessions Judge framed charges against the accused-Appellants for the offence under Section 307 IPC to which the Appellants pleaded not guilty. 5. To bring home the guilt to the accused persons, the prosecution examined as many as ten witnesses, including the Medical officer who examined the injured persons. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 CrPC. Denying the allegations brought against them, the accused persons declined to adduce defence evidence. On the basis of the evidence on record, learned Addl. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 CrPC. Denying the allegations brought against them, the accused persons declined to adduce defence evidence. On the basis of the evidence on record, learned Addl. Sessions Judge came to the finding that though the offence under Section 307 IPC was not established against the Appellants, the prosecution could establish and prove that the Appellants committed the offence under Section 326 IPC. Accordingly, the learned Sessions Judge convicted the accused persons for the offence under Section 326 IPC read with Section 34 IPC and sentenced them to suffer rigorous imprisonment for two years each and to pay a fine of Rs. 2,000/- each, in default, to undergo further RI for six months. It was directed that the period of detention, already undergone by the accused persons, during trial, shall be treated as set off under Section 428 CrPC. 6. Being aggrieved by the said judgment of conviction and sentence, the Appellants have come up with the present appeal on the ground that the learned Sessions Judge committed error by convicting the accused persons for the offence under Section 326 IPC and thereby sentencing them in the aforesaid manner without any substantive evidence on record. 7. Mr. A. Bhowmik, learned Counsel for the Appellants, inviting reference to the evidence on record, more particularly, the Medical evidence submitted that the prosecution failed to establish, by adducing cogent evidence the existence of the ingredients under Section 320 IPC and as such the conviction under Section 326 IPC was bad in the eye of law. Refuting the said argument, the learned Addl. PP submitted that the conviction was based on sufficient substantive evidence. 8. Having heard the learned Counsels appearing on behalf of both the parties and carefully perusing the evidence on record, in order to appreciate the rival contentions, I feel it appropriate to scrutinise the evidence on record to see the correctness of the impugned judgment of conviction and sentence. 9. Smt. Pabitra Debnath, one of the injured deposing as P.W.1 clearly stated that his mother was assaulted by Smt. Purnima Das, Smt. Bokul Rani Das and Smt. Kusum Bala Pal with a dao and that when he intervened to save his mother, at that time, accused Smt. Purnima Das had assaulted him with a dao. 9. Smt. Pabitra Debnath, one of the injured deposing as P.W.1 clearly stated that his mother was assaulted by Smt. Purnima Das, Smt. Bokul Rani Das and Smt. Kusum Bala Pal with a dao and that when he intervened to save his mother, at that time, accused Smt. Purnima Das had assaulted him with a dao. He stated that she gave him dao blows on his right hand and back. He further stated that the accused persons gave dao blows on the right hand, head and back of his mother. The witness was duly cross-examined on behalf of the defence, but nothing could be elicited to render his evidence disbelievable. From the evidence of P.W.1 as well as the prosecution version, it appears that the occurrence took place regarding possession of a cow, which was claimed to be the cow belonging to Sri Pabitra Debnath. The cow was being taken away by the accused persons and as Smt. Shabita Debnath (P.W.4) i.e. the mother of the P.W.1 tried to restrain the accused persons from taking away the said cow, the accused persons had assaulted her with dao. Smt. Jyotirani Shil (P.W.2) stated that hearing a hallah (hue and cry) she went outside and saw that Sri Pabitra Debnath (P.W.1) and his mother Smt. Shabita Debnath were lying on the paddy field of Sri Ranjit Pal with bleeding injuries on their persons. This witness rescued both the injured persons and she along with Sri Kajal Bhowmik (P.W.3) and Sri Parimal Bhowmik (P.W.5) shifted the said injured persons to Belonia hospital, where they were treated by the Medical officer. Sri Kajal Bhowmik (P.W.3) deposing as P.W.3 stated that hearing alarm he went out from his house and found that the Sri Pabitra Debnath (P.W.1) and his mother Smt. Shabita Debnath (P.W.4) sustained injuries on their persons and that on being asked, they told him that they were assaulted by Smt. Bokul Rani Das, Smt. Purnima Das and Smt. Kusumbala Pal. P.Ws.1, 2 and 3 supported the prosecution version regarding the injuries sustained by Sri Pabitra Debnath and Smt. Shabita Debnath. All the said witnesses were cross examined by the defence but no contradiction was established to demolish their evidence. P.Ws.1, 2 and 3 supported the prosecution version regarding the injuries sustained by Sri Pabitra Debnath and Smt. Shabita Debnath. All the said witnesses were cross examined by the defence but no contradiction was established to demolish their evidence. Smt. Shabita Debnath, deposing as P.W.4, stated that as she raised objection regarding taking of her cow by the accused persons, the accused Smt. Purnima Das and Smt. Kusumbala Pal assaulted her with a dao and gave blows on her right hand, head and back by means of a dao as a result of which she sustained injuries on her person. She stated that accused Smt. Bokul Rani Das was holding her while other two were assaulting her. She further stated that alarm being raised, her son Sri Pabitra Debnath arrived there and he was also assaulted by Smt. Purnima Das and Smt. Kusumbala Pal with a dao. This witness was also duly cross-examined, but no contradiction could be brought out to render her evidence disbelievable. P.W.6 Bichitra Mohan Nandy was the scribe of the FIR. He exhibited the FIR, which was written by him on being dictated by Sri Pabitra Debnath. This witness was not cross-examined by the defence. P.W.7 Sri Arjun Pal stated that hearing alarm, he went towards the paddy field of Sri Ranjit Pal i.e. the place of occurrence and saw Smt. Jyoti Shil and Sri Parimal Bhowmik i.e. P.W.2 and P.W.5 respectively escorting the injured Smt. Shabita Debnath and Sri Pabitra Debnath towards the road. According to this witness, he saw Smt. Kusumbala Pal washing a dao in a nearby pond and he took away the dao into his possession from the hand of Smt. Kusumbala Pal. The evidence of this witness indicates that Smt. Kusumbala Pal had a dao in her hand and that she was washing the same after the occurrence. He denied the suggestion that he did not take away the dao from Smt. Kusumbala Pal. Except the said suggestion, no contradiction or discrepancy could be proved to discredit the evidence of P.W. 7. This circumstantial evidence i.e. taking away of the dao from the accused Smt. Kusumbala Pal lends support in favour of the prosecution version regarding the injury caused by Smt. Kusumbala Pal by means of a dao. Except the said suggestion, no contradiction or discrepancy could be proved to discredit the evidence of P.W. 7. This circumstantial evidence i.e. taking away of the dao from the accused Smt. Kusumbala Pal lends support in favour of the prosecution version regarding the injury caused by Smt. Kusumbala Pal by means of a dao. Smt. Kajal Rani Pal deposing as P.W.8, stated that she heard from Babli Das that Sri Pabitra Debnath and his mother Smt. Shabita Debnath were assaulted by Smt. Bokul Rani Das, Smt. Purnima Das and Smt. Kusumbala Pal. This witness did not see the occurrence herself. Sri Nirmal Chandra Dey, SI of Police investigated into the matter and he was examined as P.W. 10. From the examination of the said Investigating officer, no contradictions could be proved in respect of the evidence given by the prosecution witnesses. From the evidence of the aforesaid witnesses, it has been clearly established that the accused persons had assaulted the injured aforesaid by means of a dao, which was a sharp cutting weapon, and thus, caused injuries on their persons. 10. The Medical officer, who examined the injured on 6.4.2000 i.e. on the day of occurrence itself found the following injuries in respect of Sri Pabitra Debnath (P.W.1): One sharp cut fresh injury over the left upper extrimity (near writ), measuring 2"x 1"x 1/2". The said injury was grievous as due to the said injury, ulna, urtery nerve and tendon were seriously effected. The said injury may be caused by any sharp cutting weapon like dao. Some bruises were found over chest, right arm and back of chest and the said injuries are simple in nature, and were also fresh and may be caused by blows. The patient was admitted on 6.4.2000 at 5 p.m. and discharged on 23.4.2000 after treatment. The patient was examined in connection with Belonia PS case No. 58 of 2000 under Section 326/307/34 IPC. In respect of Smt. Shabita Debnath (P.W.4), the Medical officer found the following injuries: One multiple sharp cut injury over the head. The wound was a deep one and as blood was oozing out from the wound I could not take the measurement of the wound. The wound was extended from the frontal portion of the scalp to the posterior part of the scalp. The said wound was a grievous one and caused by any sharp cutting weapon like dao. The wound was a deep one and as blood was oozing out from the wound I could not take the measurement of the wound. The wound was extended from the frontal portion of the scalp to the posterior part of the scalp. The said wound was a grievous one and caused by any sharp cutting weapon like dao. The wound was fresh in nature. One sharp cut injury over back of chest measuring 21/2" x 11/2" and oblique in nature. The injury was near the spinal cord. The said injury was a grievous one and caused by any sharp cutting weapon like dao. The injury was fresh in nature. One sharp cut injury over right arm at the deltoid region measuring 31/2" in length, 3" in depth and the said injury was a slicing one. The injury was a grievous one and caused by a sharp cutting weapon like dao. The nature of the wound was fresh. 11. From the evidence of the said Medical officer, it appears that the injured Sri Pabitra Debnath sustained cut injury on the upper portion of his wrist. Though the Medical officer opined that the said injuries being caused in respect of ulna, artery, nerve, tendon, which were severely affected were grievous injuries, the type of injury sustained by the injured aforesaid does not fall within the definition prescribed by Section 320 IPC. According to the Medical officer, injured Smt. Shabita Debnath sustained cut injury on her head. As there was bleeding, he could not measure the wound sustained by the said injured. The Medical officer opined that the injury sustained by Smt. Shabita Debnath was grievous. The Medical officer, except saying that the injury sustained by Smt. Shabita Debnath was a deep cut injury extending from the frontal portion of the scalp to the posterior part of the scalp, did not state anything if the said injuries were sufficient to endanger the life of the injured. In order to hold a per-son guilty of the offence under Section 326 IPC, it is required to be established that the injured sustained the following injuries, as prescribed by Section 320 IPC: 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. 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. 12. From the evidence of the said Medical officer it does not appear that the injured persons sustained any of the injuries mentioned from first to eighth categories aforesaid. The eighth category of the hurt relates to a hurt which endangers life or which causes the sufferer, during the space of twenty days, in severe bodily pain or unable to follow ordinary pursuits. The Medical officer, in his evidence, stated that the injured Sri Pabitra Debnath and Smt. Shabita Debnath were admitted in the hospital on 6.4.2000 and Sri Pabitra Debnath was released from the hospital on 23.6.2000, while Smt. Shabita Debnath on 24.6.2000. In view of the above, it appears that none of the said injured were required to be in the hospital for undergoing treatment for more than eighteen days. From the evidence on record, there is nothing to find that the said injured suffered severe bodily pain or that they were unable to follow their ordinary pursuits during the period of twenty days from the date of occurrence. The hurt which endangers life is also sufficient to constitute an offence under Section 326IPC. But such hurt should be a hurt of such a nature, which could be reasonably believed to be sufficient to cause danger to the life. The Medical Officer nowhere opined that the injuries sustained by the injured were of such a nature or such a degree, which were sufficient to endanger the life of the injured persons. In the impugned judgment also, the learned Addl. Sessions Judge opined that the said injuries were not likely to cause death. No doubt, the head is a vital part of the body, but any injury sustained on the head cannot be termed as grievous hurt, unless it is shown that there is no evidence to find that the injury caused on the head was sufficient and eminent to cause danger to the life. No doubt, the head is a vital part of the body, but any injury sustained on the head cannot be termed as grievous hurt, unless it is shown that there is no evidence to find that the injury caused on the head was sufficient and eminent to cause danger to the life. The fact that the injury was on the head resulting oozing out of blood cannot be sufficient to hold that the same was an injury endangering life. In order to establish an offence under Section 326 IPC, the prosecution, in such a situation, must adduce reliable and cogent medical evidence indicating that the injury was sufficient to endanger life. In the present case, the prosecution has failed to do so. Considering the above, it cannot be safely held that the injured sustained grievous injuries at the hands of the accused persons. Therefore, in my considered opinion, the conviction recorded under Section 326 IPC was not lawful. The injured persons having sustained cut injury by means of a dao, which is a cutting instrument, the accused persons are found to have committed the offence under Section 324 read with Section 34 IPC. 13. In view of the above, the conviction and sentence recorded under Section 326 IPC are set aside and modified to one under Section 324 IPC read with Section 34 IPC. The learned Addl. Sessions Judge sentenced the accused-Appellants to suffer rigorous imprisonment for two years each and to pay a fine of Rs. 2,000/-, in default, to suffer further rigorous imprisonment for six months under Section 326 IPC. The learned Counsel appearing for the Appellants has submitted that the Appellants suffered detention for about one month during the period of trial, that they are peacefully enjoying their family lives in the society and that there is no complaint against them. It is submitted that the age of Smt. Kusumbala Pal is about 62 years, the age of Smt. Bokul Rani Das is 47 years and the age of Smt. Purnima Das is about 25 years. Admittedly, the occurrence took place due to taking of a cow by the accused persons. There is no previous criminal record against the Appellants. Already nine long years have passed from the date of incident. The occurrence took place on 6.4.02 and the order of conviction and sentence was made on 4.5.02. Admittedly, the occurrence took place due to taking of a cow by the accused persons. There is no previous criminal record against the Appellants. Already nine long years have passed from the date of incident. The occurrence took place on 6.4.02 and the order of conviction and sentence was made on 4.5.02. Considering the entire facts and circumstances of this case, cause of dispute, the present age and the social status of the Appellants, I am of the considered opinion that it would not be appropriate to send the Appellants, who are living in the society peacefully without any complaint for the last eight years, to Jail at this stage. In my considered opinion, considering the gravity of the offence, a sentence in the nature of fine, compensating the injured persons, would be sufficient to meet the ends of justice. 14. In view of the above, the sentence awarded under Section 326/34 IPC is set aside and the Appellants are sentenced to pay fine of Rs. 2,000/- each, default, to suffer rigorous imprisonment for six months each for the offence under Section 324/34 IPC. In the event of realisation of fine the same shall be paid to the injured persons. The learned trial Judge, immediately after realisation of the fine amount, shall issue notice to the injured persons requiring them to collect the said amount. The learned Counsel on behalf of the Appellant has prayed for some time to pay the fine. Accordingly, three months time, from today, is allowed to pay fine amount aforesaid. The Appellants shall deposit the fine amount with the learned Addl. Sessions Judge, Belonia within three months from this date. 15. With the above modification, this appeal is partly allowed.