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2011 DIGILAW 941 (GAU)

State of Tripura v. Sunil Oria

2011-12-01

B.D.AGARWAL, SUBHASIS TALAPATRA

body2011
JUDGMENT B.D. Agarwal, J. 1. In this appeal at the instance of the State, the judgment of learned Addl. Sessions Judge, West Tripura, Agartala passed in Sessions case No. S.T. 75(WT/A) of 2002 on 14-11-2006 is under challenge. By this impugned judgment, the learned trial Judge has acquitted all the nine accused persons from the offence of murder. 2. We have heard Mr. R. C. Debnath, learned Special Public Prosecutor appearing for the appellant-State. Also heard Mr. Somik Deb, learned counsel appearing on behalf of the respondent Nos.1 to 6 and Mr. P. Saha, learned counsel appearing on behalf of the respondent Nos.7, 8 and 9. 3. The appeal was heard in part on 28-11-11. On that day also, none represented respondent No. 7, namely, Sri Uttam Sutradhar. Hence, we requested Mr. P. Saha, learned counsel appearing for the respondent Nos.8 and 9 to also represent the aforesaid absentee accused i.e. the respondent No. 7. It was so because Mr. P. Saha is abreast with of all the facts of the case. We have also gone through the impugned judgment and the evidence proffered by the prosecution in the trial court. 4. It is true that ordinarily, the High Court does not interfere in an order of acquittal unless a special case is made out by the appellant or if it is shown to the High Court that material and conclusive evidence were left out of consideration by the trial court. However, in the case of Kilakkatha Parambath Sasi Vs. State of Kerala (2011 CRI. L.J. 3132), the Apex court has observed that High Court can re-appraise the evidence so as to find out as to whether the view taken by the trial court was justified or not and if it finds that the trial court findings were not possible on the evidence, interference must be made failing which there would be a travesty of justice. In the light of this observation of the Apex court, we would now look into the facts and evidence of the case, in brief. 5. The prosecution case is that in the afternoon of 16-4-2001, the deceased was returning home along with PW 14 Nepal Das. On the way, they were initially accosted by the accused Sunil Oria. There was a brief altercation in between PW 14 and Sunil. At that moment, deceased Krishna slapped the accused Sunil. 5. The prosecution case is that in the afternoon of 16-4-2001, the deceased was returning home along with PW 14 Nepal Das. On the way, they were initially accosted by the accused Sunil Oria. There was a brief altercation in between PW 14 and Sunil. At that moment, deceased Krishna slapped the accused Sunil. When the said accused raised alarm, all the remaining accused persons came running to the scene. The accused Debabrata Shil dealt blows upon the deceased with a wooden stuff and the remaining accused persons also started kicking the deceased. The accused Uttam Sutradhar assaulted the deceased with a spear like iron weapon. When PW 14 tried to save the deceased, he was also assaulted with the wooden stuff. 5.1 Somehow PW 14 escaped from the scene and reported the incident to his parents and also the family members of the deceased. Soon thereafter, parents, brothers and other relatives of the deceased as well as that of PW 14 went to the place of occurrence and found Krishna in dead condition at a little distance from the place, where the initial marpit had taken place. 5.2 Thereafter, PW 14 rushed to the East Agartala police station and lodged the FIR at about 7:45 p.m. It was registered as East Agartala PS case No. 78 of 2001 under Sections 302/325/34 IPC. It may be mentioned here that names of the accused persons were specifically mentioned in the FIR. After the investigation, Uttam Sutradhar was also chargesheeted for the aforesaid offences. After the chargesheet, all the nine accused persons were, however, tried for the offences under Section 302 read with Section 34 IPC as well as under Section 323 read with Section 34 IPC. As noted earlier, after the trial, all the accused persons have been acquitted from both the offences. 6. As could be gathered from the record, altogether eighteen witnesses were examined by the prosecution. PW 14 is the eye witness of the incident. PW 6, PW 7, PW 16, PW 17 and PW 18 are the witnesses from the family of the deceased; PW 8 and PW 15 are mother and brother of PW 14, who was in company with the deceased at the relevant time. The other non-official witnesses are from the locality. PW 14 is the eye witness of the incident. PW 6, PW 7, PW 16, PW 17 and PW 18 are the witnesses from the family of the deceased; PW 8 and PW 15 are mother and brother of PW 14, who was in company with the deceased at the relevant time. The other non-official witnesses are from the locality. PW 5 is the Medical Officer who had examined PW 14 and PW 11 is the Doctor who had conducted necropsy upon the dead body. PW 12 and PW 13 are the Investigating officers. 7. After going through the entire evidence on record, we have noticed that the defence failed to project any counter story to take a view that they have been falsely implicated. No suggestion was given to any witness that the witnesses were entertaining any animosity with them. On the other hand, we find that all the relatives of the deceased as well as that of PW 14 came to know about the incident from PW 14. It is true that few witnesses came to know about the names of the assailants little later. However, the oral evidence of all the witnesses except PW 3, PW 4 and PW 10, are almost in tandem to each other, except minor omissions here and there to implicate the accused person in the offence. All the witnesses have given consistent evidence of assault upon the deceased Krishna by the accused persons. 8. The learned counsel for the respondents fairly admitted the fact that it is not a clear case of acquittal. Since the alleged offence took place more than ten years ago, the learned counsel for the respondents/accused persons submitted that the appeal should be decided on merit by this court itself, instead of remanding the case for a fresh trial to the trial court. The learned counsel also submitted that at best it is not a case of murder. 9. The prime witness of the prosecution i.e. PW 14 himself has admitted the fact that initially he had picked up quarrel with the accused Sunil whereupon the said Sunil was slapped by the deceased. Some other witnesses have also stated about altercation and quarrel preceding the assault upon the deceased. Hence, we hold that there was no intention on the part of the assailants to cause murder of Krishna Das. Some other witnesses have also stated about altercation and quarrel preceding the assault upon the deceased. Hence, we hold that there was no intention on the part of the assailants to cause murder of Krishna Das. Having regard to all the aspects, more particularly, the altercation, quarrel and there being no evidence of previous enmity between the deceased and the accused persons, we hereby convict the accused persons/respondents under Section 304 Part-II read with Section 34 of the Indian Penal Code. We do not propose separate conviction under Section 323 IPC for assaulting Nepal Das (PW 14). 10. From the statements of the accused persons recorded under Section 313 CrPC, we noticed that all the accused persons were in their prime youth at the relevant time and they were unmarried. The learned counsel also submitted that in the meanwhile, some of the accused persons must have married and must have been leading a married life. The learned counsel also submitted that the offence was committed in a spur of moment and as such least minimum sentence may be awarded to the respondents. We find sufficient force in the submission of the learned counsel for the respondents. 11. Taking a liberal view, we hereby award 2 (two) years of rigorous imprisonment to each of the accused persons for their conviction under Section 304 Part-II read with Section 34 IPC. In addition to the substantive sentence, the accused persons are also sentenced to pay Rs.2,000/- (rupees two thousand) only each. In default of payment of fine, the accused persons shall undergo further rigorous imprisonment for two months. If the fine amount is paid by the accused persons, half of the amount shall be paid to the deceased family as compensation. Needless to mention here that the period of custody, already undergone by the accused persons during investigation and trial, shall be set off under Section 428 CrPC. 12. All the accused persons/respondents are hereby directed to surrender in the court of Addl. Sessions Judge, West Tripura, Agartala immediately to serve out the sentence as ordered and deposit the fine amount. 13. With the aforesaid observations and directions, the appeal is disposed of. 14. The Registry is directed to return the lower court records with a copy of this judgment to the trial court forthwith.