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2011 DIGILAW 887 (GAU)

Paritosh Debnath v. State of Assam

2011-11-11

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 12.07.2004, passed the learned Additional Sessions Judge, Belonia, South Tripura in S.T.6 (S/T/B)2004. By the impugned judgment and order, the learned Sessions Judge aforesaid convicted the appellants for the offences under Sections 323 and 447 of the Indian Penal Code (hereinafter referred to as the IPC) and thereby sentenced them after RI for 6 (six) months for their conviction under Section 323, IPC and pay fine of Rs. 500/- (Rupees five hundred) only, in default to suffer simple imprisonment for 2 (two) months for their conviction under Section 447 of IPC. Aggrieved by the said judgment and order, the convicted persons, as appellants, have come up with this appeal. 2. I have heard Mr. Arijit Bhowmik, learned counsel, appearing for the appellants as well as Mr. P. Bhattacharjee, learned Additional Public Prosecutor, representing the State-respondent. 3. The prosecution case, necessary for disposal of this appeal, in brief, may be stated as follows: 4. On 06.10.2000, in between 12 to 13 hours, the appellants, who are neighbours of the informant, had thrown some garbages along with broken pieces of glass into the drain of the informant, to which, the informant raised objection. On being objected by the informant, the appellants chased her, entered her room and assaulted her. The informant was also dragged to the courtyard the appellant namely, Sri Dhananjoy Debnath caught hold of her throat, while the other appellant had beaten her indiscriminately. The appellant also assaulted the mother-in-law and the grand-mother of the informant. The informant found that her gold chain and a pair of ear rings were taken away by the appellants. Alarm being raised, the villages assembled there and the appellants left the place. 5. On the same date, at about 6.00 p.m., the informant lodged an FIR with the Officer-in-Charge, PR Bari Police Station, which was registered as PR Bari PS Case No. 51/2000 under Sections 448/325/307/ 379read with Section 34 of IPC. At the close of the investigation, Police submitted charge-sheet against the appellant for the offences under Sections 448/325/307 and 379 of IPC. Offence under Section 307 being exclusively triable by the Court of Sessions, the learned SDJM, Belonia, committed the case to the Court of Sessions. The learned Sessions Judge framed charges under Sections 448/307 read with Sections 34 and382 of IPC. Offence under Section 307 being exclusively triable by the Court of Sessions, the learned SDJM, Belonia, committed the case to the Court of Sessions. The learned Sessions Judge framed charges under Sections 448/307 read with Sections 34 and382 of IPC. The charges were read over to the accused appellants to which they pleaded not guilty. 6. In order to prove its case, the prosecution examined, as many as, 8 witnesses including the informant (PW.1), the Medical Officer (PW. 7) and the Investigating Police Officer (PW 8). At the close of the evidence for the prosecution, the accused persons were examined under Section 313 of Cr.P.C. The appellants denied the allegations, brought against them and declined to adduce the defence evidence. Considering the evidence on record, the learned Sessions Judge found the accused persons guilty of the offences under Sections 323/447 of IPC. Accordingly, they were convicted and sentenced, as indicated above. 7. Mr. Arijit Bhowmik, learned counsel for the appellants, taking this Court through the evidence on record, has submitted that the prosecution has failed to establish the charges against the appellants under Sections323/447 of IPC and thus, the learned Sessions Judge committed error by recording the conviction and the sentences against the appellants. The learned counsel further submitted that considering insufficiency of evidence against the appellants, the impugned conviction and sentences are liable to be set aside and that the accused persons are entitled to be acquitted. 8. Mr. P. Bhattacharjee, learned Additional Public Prosecutor, controverting the said argument, as advanced by the learned counsel for the appellants, has submitted that the prosecution could establish the charges under Sections 323/447 of IPC against the appellants beyond all reasonable doubt and, therefore, the learned Sessions Judge committed no error requiring interference by this Court. 9. In order to appreciate the counter arguments, advanced by the learned counsel for both the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to, briefly, scan the evidence on record. 10. Smt. Sumati Debnath, who is the informant in this case, deposed as PW.1. She stated that on the date of occurrence, in between 12.00 noon to 1.00 p.m., the appellants had thrown some glasses and dirty things into her land and on being objected by her, the appellant had attacked her. 10. Smt. Sumati Debnath, who is the informant in this case, deposed as PW.1. She stated that on the date of occurrence, in between 12.00 noon to 1.00 p.m., the appellants had thrown some glasses and dirty things into her land and on being objected by her, the appellant had attacked her. She clearly stated that on being attacked, in order to save herself, she rushed towards her house, followed by the appellants, who entered the room and assaulted her, therein. She further stated that Sri Dhananjoy Debnath, pressed her throat with an intention to kill her, as a result of which, she lost her sense. She also stated that after regaining her sense it has found that her golden ornaments i.e. ear rings, chains were missing and that her 'sakhas' (bangles) were broken. According to this witness, she was taken to the hospital by the villagers and she had lodged an FIR with the Police. She exhibited her signature in the FIR as Ext. Page-1/1. 11. This witness was cross-examined by the defence. In her cross-examination, she stated that she was taken to the hospital by one Sri Suklal Debnath (PW.2). She admitted that the appellant, Sri Paritosh Debnath, was also admitted in the hospital for sustaining injury. This witness expressed her ignorance about the assault made on the wife of Sri Paritosh Debnath and also about the injuries sustained by other members of his family. She further admitted that another case was lodged against Sri Suklal Debnath (PW.2), who was her cousin, alleging therein that the latter had assaulted the appellant, Sri Paritosh Debnath and the members of his family. She denied the suggestion that she was not assaulted by the appellants. She also denied the suggestion that PW.2 and others had assaulted the appellants. 12. From her evidence it appears that another criminal case was lodged against the PW.2, alleging, therein, that the PW.2 had assaulted the appellant Sri Paritosh Debnath and the members of his family. It is also admitted position that the appellant Sri Paritosh Debnath also sustained injuries, requiring medical treatment However, the evidence of this witness regarding assault caused by the appellant on her and their entry into her room remains undemolished. 13. PW.2 Sri Sukhlal Debnath, supporting the statement of the PW. It is also admitted position that the appellant Sri Paritosh Debnath also sustained injuries, requiring medical treatment However, the evidence of this witness regarding assault caused by the appellant on her and their entry into her room remains undemolished. 13. PW.2 Sri Sukhlal Debnath, supporting the statement of the PW. 1 clearly stated that on the fateful day, while he was returning from field, he heard hue and cry rushed to the house of PW. 1. He further stated that he saw the appellant Sri Dhananjoy Debnath, holding the throat of the informant and Sri Paritosh Debnath beating her. He further stated that on his arrival in the place of occurrence the said appellants filed the place. He also supported the evidence of the PW. 1 that she was taken to the hospital by him. 14. In his cross-examination, this witness admitted that a case was lodged against him alleging that he along with 7 others had assaulted the appellants and the members of their family. He denied the suggestion that, he along with others, had assaulted the appellants and the members of their family. 15. Carefully perusing the evidence of PW.2, it appears that no contradiction, in respect of his evidence, regarding the assault caused by the appellant, on the informant could be elicited. Hence I find that there is sufficient corroboration in the evidence of the said 2(two) witnesses. 16. Smt. Sindhu Bala Debnath (PW 3), the mother-in-law of the informant, in tune with the evidence of the PW.1 stated that the appellants had chased the informant to her room and assaulted her. According to this witness, though she tried to save the informant the appellant namely Sri Paritosh Debnath had pushed her away, as a result of which, she had fallen down. Supporting the evidence of PW.2, the said witness stated that the PW.2 had taken the informant to the hospital. 17. In her cross-examination she stated that in the afternoon, she had heard that Sri Suklal Debnath, i.e. PW.2 and others had assaulted the appellants and the members of their family. She also denied the suggestion that, in order to save the PW.2, a false case was lodged against the appellants. 18. Smt. Laxmi Debnath, who was a neighbour of the informant, deposed as PW4. She stated that, she heard about the quarrel that took place between the informant and the appellants. She also denied the suggestion that, in order to save the PW.2, a false case was lodged against the appellants. 18. Smt. Laxmi Debnath, who was a neighbour of the informant, deposed as PW4. She stated that, she heard about the quarrel that took place between the informant and the appellants. According to this witness, she came out from her room and saw the appellant Sri Dhananjoy Das, holding the throat of the informant. She further stated that, on being called by her son, she had gone inside her room. From the evidence of PW 4 it is found that the quarrel had taken place between the informant and the appellants and that the appellant namely, Sri Dhananjoy Debnath had caught hold of the throat of the informant. The evidence of this witness clearly indicates that the appellant had entered the premises of the informant and assaulted her. 19. Smt. Niharabala Debnath, another neighbour of the appellant and the informant, deposed as PW. 5. According to this witness, on the date of occurrence, in between 12.00 noon to 1 p.m., while she was in her house, hearing the quarrel and cry, she went to the house of the informant and saw that the appellant, Sri Dhananjoy Debnath, with the help of the appellant Sri Paritosh Debnath, was holding the throat of the informant. Though this witness was cross-examined on behalf of the defence, no contradiction could be elicited to render her evidence unbelievable. From the said evidence of the PW.5, it is clearly found that the appellant had assaulted the informant. 20. Smt. Pratima Debnath, who was a co-villager, deposed as PW. 7. She stated that, on the date of incident, hearing hue and cry, she went to the house of the informant and found that the appellant, Sri Dhanjoy Debnath, was holding the throat of the informant and the other appellant, Sri Paritosh Debnath was beating her with his hands. Supporting the evidence of PW 2 and PW 5, this witness stated that they tried to intervene and that the PWs. 2 and 5 had poured water on the informant. She further stated that the informant was taken to the hospital. 21. This witness was cross-examined on behalf of the defence, but no contradiction could be elicited to render her evidence unbelievable. 2 and 5 had poured water on the informant. She further stated that the informant was taken to the hospital. 21. This witness was cross-examined on behalf of the defence, but no contradiction could be elicited to render her evidence unbelievable. Therefore, considering the evidence of the witnesses, produced by the prosecution, it is found that there is sufficient corroboration in their evidence to believe, that a quarrel had taken place amongst the informant and the appellants, regarding throwing some articles into the drain of the informant and that the appellants had trespassed into the premises of the informant and assaulted her. 22. Dr. Bholanath Saha, a Medical Officer of Niharnagar P.H.C., examined informant on 06.10.2000 i.e. on the date of occurrence itself. Deposing as PW.6, the said Medical Officer stated that he examined the informant and found one radish mark on her throat. According to this witness, no external injury was noticed on the person of the informant. He opined that the radish mark, found on the neck of the informant, might be caused by putting pressure herself or by any blunt object like hand. He exhibited the report, submitted by him, as Exbt.P/2. 23. In his cross-examination, he stated that no mark of any nail or finger tips could be noticed. He also opined that the said marks could be self-inflicted. According to the Medical Officer, said injury was simple in nature. The Medical Officer, who examined the informant, on the date of occurrence itself, indicates that there was some marks of putting pressure on the neck of the informant. Though the Medical Officer, in his cross-examination opined that the said mark may be caused due to self-infliction also, there is no such evidence to suggest that the informant had caused the said radish mark on her throat, herself. 24. From the above discussed evidence of the informant as well as independent witnesses, it has been clearly established that one of the said appellants caught hold of the throat of the informant, while the other had beaten her with his hands. In view of the said evidence, coupled with the above stated medical evidence, there is sufficient corroboration to believe that the radish mark, on the neck of the informant, was caused by one of the appellant i.e. Sri Dhananjoy Debnath. In view of the said evidence, coupled with the above stated medical evidence, there is sufficient corroboration to believe that the radish mark, on the neck of the informant, was caused by one of the appellant i.e. Sri Dhananjoy Debnath. Though, no other mark of injury was noticed by the Medical Officer, all the said witnesses supporting the evidence of PW. 1, stated that the appellants had chased her to her room and assaulted her. 25. In the present case, the prosecution has examined the I.O. as PW 1. The Defence also cross-examined him, but no contradiction, in respect of the evidence rendered be prosecution witnesses, could be elicited to demolish the prosecution version. 26. In view of the above discussed evidence, it is found that there is no difficulty in understanding that the prosecution could successfully establish that the appellants, on the date of occurrence had trespassed into the premises of the informant and assaulted her. Therefore, in my considered opinion, the learned trial Judge committed no error by convicting the appellants for the offences under Sections 323/447 of IPC. 27. The occurrence took place on 06.10.2000. Already 11 years have elapsed from the date of occurrence. Both the informant and the appellants are neighbours. It is on record that the appellant Sri Dhananjoy Debnath, also sustained injuries requiring hospitalization on the date of occurrence. There is no dispute gate that the appellants also lodged an FIR against the PW 2 and others, alleging, therein, that they had assaulted the appellants and the members of their family. PW 2 is the cousin of the informant. In view of the above, I find sufficient force in the submission of the learned counsel, appearing for the appellants that, while facing the litigation, during the last 11 years, appellants have already suffered both mentally and economically. There is no other complaint against the said neighbours of the informant. 28. In view of the above, considering entire aspect of the matter and in the attending fact and circumstances, which gave rise to the occurrence aforesaid, more particularly, keeping in mind the prospect of peaceful living of the neighbours aforesaid, I am of the opinion that no fruitful purpose would be served by sending the appellants to suffer imprisonment for a short period of 6(six) months, at this stage, for their conviction under Section 323 of IPC. Therefore, I am of the considered opinion that the sentence of imprisonment for their conviction under Section 323 of IPC is required to be modified. Accordingly, I modify the same and direct each of the appellants to pay a fine of Rs. 1,000/- (Rupees one thousand) only, in default, suffer imprisonment for 3 (three) months. No modification is made in respect of the sentence to pay Rs. 500/- (Rupees five hundred) only, awarded for their conviction under Section 447 of IPC. 29. Therefore, while upholding the convictions under Sections 323 and 447 of IPC aforesaid, as awarded by the learned trial Judge, the sentence under Section 323 of IPC is modified requiring each of the appellants to pay fine of Rs. 1,000/- (Rupees one thousand) only instead of suffering RI for 6 (months). 30. With the above modification in respect of the sentence under Section 323 of IPC, the appeal is partly allowed. The appellants are directed to deposit the fine amount before the learned Additional Sessions Judge, Belonia, South Tripura, within 3(three) months from this date. 31. With the above modification, the Criminal Appeal is disposed of. Return the LCR.