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Gauhati High Court · body

2011 DIGILAW 963 (GAU)

Manik Debnath and Ors. v. State of Tripura

2011-12-07

S.C.DAS

body2011
1. This criminal appeal under section 374 of Cr.PC is directed against the judgment and order of conviction and sentence dated 19.5.2004, passed by learned Sessions Judge, South Tripura, Udaipur, in Sessions Trial No. 174 (ST/S) of 2001. Learned Sessions Judge found the convict appellants guilty of committing offence punishable under sections 448/326/304(P-II) read with section 34 of IPC and sentenced appellant No.1, Sri Manik Debnath to suffer RI for five years and also to pay a fine of Rs.5,000 in default of payment to suffer RI for one year and also sentenced him to suffer RI for one year under section 448 of IPC and directed that the sentences shall run concurrently. In respect of appellant Nos.2, 3 and 4, namely, Smt. Putu Rani Debnath, Sri Uttam Debnath and Smt. Ratna Debnath respectively, were allowed to remain on probation for a period of three years and no sentence was imposed on them. 2. Heard learned counsel, Mr. S. Kar Bhowmik for the appellants and learned P.P., Mr. D. Sarkar, assisted by learned Spl. P.P., Mr. R.C. Debnath for the State respondent. 3. A summery of the prosecution case is that on 11.7.2001 at about 11.30 p.m. the accused persons namely, Manik Debnath, his wife, Ratna Debnath and their son and daughter Uttam Debnath and Putu Rani @ Photo Rani Debnath, all armed with dao, lathi, etc., trespassed into the house of victim Ratan Debnath, husband of informant, Malati Debnath and forcibly dragged Ratan Debnath from his hut to his courtyard and assaulted him striking dao and lathi blows, causing multiple injuries including bleeding injury. On the following day in the early morning, the severely injured Ratan Debnath was shifted to Manubazar Hospital and the doctor, after examination and preliminary treatment, referred him to Sabroom HospitaKSub-Divisional Hospital) for X-ray, wherefrom he was referred to Udaipur Hospital and then to G.B. Hospital, Agartala. But Ratan Debnath succumbed to the injuries on 15.7.2001 at G.B. Hospital. While the injured was taken to Manubazar Hospital by his wife Malati Debnath, someone informed Manubazar P.S. and S.I. Raj Prasad Jamatia, as directed by O/C, went to the hospital to whom Malati Debnath narrated the incident and S.I. Raj Prasad Jamatia recorded it as FIR. But Ratan Debnath succumbed to the injuries on 15.7.2001 at G.B. Hospital. While the injured was taken to Manubazar Hospital by his wife Malati Debnath, someone informed Manubazar P.S. and S.I. Raj Prasad Jamatia, as directed by O/C, went to the hospital to whom Malati Debnath narrated the incident and S.I. Raj Prasad Jamatia recorded it as FIR. That FIR was registered as Manubazar P.S. Case No. 17 of 2001 under sections 448 and 326 of IPC and an investigation was taken up by the police of Manubazar P.S. and on completion of investigation charge sheet was submitted against the accused persons for commission of offence punishable under sections 448/326/302 of IPC. Cognizance was taken and in due course the case was committed to the Court of Sessions for trial. 4. In course of trial, learned Sessions Judge examined as many as 9(nine) witnesses and out of them PWs 1, 2 and 3 are the only witnesses to the occurrence and they are the wife, daughter and son of the deceased Ratan Debnath. Out of the other witnesses, PW6 is the Medical Officer of Manubazar Hospital, who examined the deceased at first and PW7 is the Autopsy Surgeon. PWs.8 and 9 are the Investigating Officers. PW4 is a police constable, who guarded the dead body and identified it at the time of P.M. examination. Learned Sessions Judge relying on the evidence of PWs.1, 2 and 3 which is corroborated by PWs.6 and 7 recorded an order of conviction and sentenced accused Manik Debnath as indicated above. 5. For fair appreciation and consideration of the points advanced by learned counsel of the appellants in course of arguments, let us first travel through the evidence of PWs.1, 2 and 3. FW1 in her deposition stated that about 11 years ago in the month of "Asad', i.e., 26th 'Asad' (Bengali calendar month and date), on Wednesday, the accused persons namely, Sri Manik Debnath, Sri Uttam Debnath, Smt. Ratna Debnath and Smt. Putu Debnath, trespassed into her dwelling hut at about 11 p.m. and they dragged her husband Ratan Debnath from her dwelling hut and assaulted him in the courtyard. Accused persons were armed with dao, lathi, etc., Accused Manik, Ratna and Uttam assaulted her husband by lathi and accused Putu hurled dao blows on the head of her husband. Her husband sustained grievous injuries. He was removed to Manu Hospital. Accused persons were armed with dao, lathi, etc., Accused Manik, Ratna and Uttam assaulted her husband by lathi and accused Putu hurled dao blows on the head of her husband. Her husband sustained grievous injuries. He was removed to Manu Hospital. Since condition of her husband was precarious he was initially shifted to Sabroom Hospital, wherefrom he was again shifted to Udaipur Hospital. Since his condition did not improve after three days he was again shifted to G.B. Hospital at Agartala. Her husband died at G.B. Hospital at dawn on the same date of admission. On the following morning of the incident she informed the matter in the Manu Police Station. One police officer reduced her Ejahar into writing and after writing the contents were read over to her and on being satisfied that it was written as per her version, she put her signature. She duly proved the FIR. In course of cross-examination, only one contradiction was marked as Ext. 'A' that she did not state to the I.O. that on the night of the incident Manik Debnath called her husband and in reply her husband came out from the room. That portion of the statement was also proved by I.O. There is no other material in the cross-examination except some denial and suggestions. PW2 in her deposition stated that 21/2 years ago on 26th 'Asad' Wednesday at about 11/11.30 p.m. the accused persons Manik Debnath, Uttam Debnath, Ratna Debnath and Putu Debnath, being armed with dao, lathi, etc., trespassed into their dwelling hut and dragged her father to the courtyard and assaulted him by dao, lathi, etc., Putu Debnath hurled a dao blow on the head on her father. She was in the room when the accused persons trespassed and dragged her father to the courtyard. She has seen the incident from her room. Her father was removed to Manubazar Hospital and then to Sabroom Hospital and thereafter to Udaipur Hospital and lastly at G.B. Hospital, Agartala. Her father succumbed to the injuries at G.B. Hospital after four days of the incident. The weapons of offence, namely, one dao and three lathies by which her father was assaulted by the accused persons were lying in the house of her uncle Manik Debnath and she had shown the weapons to the police officer. There is nothing material in the cross-examination of the witness. The weapons of offence, namely, one dao and three lathies by which her father was assaulted by the accused persons were lying in the house of her uncle Manik Debnath and she had shown the weapons to the police officer. There is nothing material in the cross-examination of the witness. PW3 in his deposition has stated that about 21/2 years ago on a certain Wednesday on 11thday of English calendar month about 11 p.m. his uncle accused Manik Debnath, his daughter Ratna Debnath and son Uttam Debnath and his wife Patu Debnath, on being armed with dao, lathi, etc., trespassed into his dwelling hut. They dragged his father to the courtyard and started assault on him. Manik Debnath and Ratna assaulted him by lathi and Patu hurled dao blows on the head of his father. He has seen the incident from his room. Firstly, his father was shifted to Manubazar Hospital and then to Sabroom Hospital and from there to Udaipur Hospital and lastly at G.B. Hospital, Agartala, where he breathed his last. His father died after four days of the incident. There is nothing material in the cross-examination. 6. Let us now see the medical evidence on record. PW6, the Medical Officer, Manubazar Hospital at first examined the injured on 12.7.2001 at about 06.50 a.m. and found following injuries:- "(1) One cut injury over the right lower part of parietal of scalp, size 3" x 1/2" x 1/2", simply in nature. (2) Cut injury over the lower oxipital area of scalp, size 4" x 1/2" x 1/2", simple in nature. (3) Swelling over the left arm and left deltoip muscle, simple in nature. (4) Swelling over the left foot with tenderness, simple in nature. (5) Tenderness over the abdomen and back, simple in nature." He has further stated that the patient was needed immediate X-ray for the diagnosis of fracture. Patient was referred to Sabroom Hospital on 12.7.2001 at 11.30 a.m. for X-ray and necessary treatment. He proved the injury report submitted by him which is marked as Ext.5. PW7, the Autopsy Surgeon has stated that he conducted the P.M. examination over the dead body at G.B. Hospital and found the following : - "(1) Regourmotis-present in all major joints of the body. (2) P.M. staning present over back. Eye and mouth were closed. Abdomen was distended. Anti Mortem injury. PW7, the Autopsy Surgeon has stated that he conducted the P.M. examination over the dead body at G.B. Hospital and found the following : - "(1) Regourmotis-present in all major joints of the body. (2) P.M. staning present over back. Eye and mouth were closed. Abdomen was distended. Anti Mortem injury. (1) Lacerated injury (healing) 5 cm x 1 cm x bone deep present over occipital region of scalp 2 cm. above occipital protuberance. (2) Lacerated injury (healing) 4 cm x 1 cm x 1 cm present over occipital region of scalp 4 cm. below the injury. (3) Bruise 7 cm x 3 cm present over upper anterior part of left leg 6 cm below the knee joint. (4) Perforated wound 2.5 cm present over anterior wall of first part of duodenum and 3 small purported wound each measuring 3 cm present over ileum, i.e., lower part of small intestine. The greater omentum and peritoneum are thicken hard and shrinked. Peritoneum cavity contained about 3 litres of instentine fluid mixed with figure metre." In his opinion, the cause of death was "septicaemia shock due to peritonitis following rupture of upper gestro intestinal track, consequent upon blunt trauma abdomen. All the injuries are anti-mortem in nature and about four days duration. Injury No.4 is fatal and sufficient to cause death in ordinary course of nature. The injury No.4 could be done by any blunt weapon like lathi. Even if the pressure was 120/80 one injured may die gradually due to injury caused on the vital part of the body." 7. On perusal of the impugned judgment passed by learned Sessions Judge, I find that the learned Sessions Judge has made a fair appreciation of the facts and circumstances and the evidence on record and arrived at a reasonable finding of guilt of the accused persons and sentenced accused Manik Debnath with imprisonment and fine and released the other convicts on probation, considering their age and other factors. 8. The first point argued by learned counsel, Mr. Kar Bhowmik is that except the wife, daughter and son of the deceased, no other witnesses were examined by the prosecution, and, therefore, prosecution case is liable to be disbelieved. On the contrary, learned P.P. has submitted that the deceased Ratan Debnath and the convict Manik Debnath are full-blood brothers. 8. The first point argued by learned counsel, Mr. Kar Bhowmik is that except the wife, daughter and son of the deceased, no other witnesses were examined by the prosecution, and, therefore, prosecution case is liable to be disbelieved. On the contrary, learned P.P. has submitted that the deceased Ratan Debnath and the convict Manik Debnath are full-blood brothers. The incident occurred in a remote village at about 11.30 p.m. There is nothing on record that any other witnesses were available and under such circumstances there is no reason to disbelieve the evidence of PWs 1, 2 and 3. It is an admitted fact that the deceased Ratan Debnath and the convict Manik Debnath are full-blood brothers and their houses situated side by side. There was no other house of any independent witnesses. In the depositions of PWs1, 2 and 3 there is noting that any other persons were present when the incident occurred. Since the incident occurred at about midnight, the inmates of the house are the natural witnesses. There is nothing in law that a family member or a relative cannot be a witness of truth. There is also no rule that unless an independent witness is examined and the independent witness corroborates the family members and relatives, who are eye witnesses of the case, such evidence is to be discarded. Evidence Act states that no particular member of witness shall, in any case, be required for proof of any fact. The Supreme Court repeatedly held that it is the weight of evidence and not the member of witness, which the court ought to consider. It is the settled principle that the evidence is to be weighed and not to be counted. There is also no rule that a relative or a family member is always to be termed as an "interested" witness. The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus against the accused or for some other reasons. Unless corroboration is insisted upon by a statute, the court should not insist on corroboration except in cases where the nature of the testimony of a single witness or a relative witness itself requires as a rule of prudence, that corroboration should be insisted upon. Unless corroboration is insisted upon by a statute, the court should not insist on corroboration except in cases where the nature of the testimony of a single witness or a relative witness itself requires as a rule of prudence, that corroboration should be insisted upon. For example, in the case of child witness, or of a witness, whose evidence is that of an accomplice or often analogous character. Whether corroboration, is or is not necessary, must depend upon facts and circumstance of each case and general rule can be laid down. In this case, accused Manik Debnath along with wife and children, armed with dao, lathi, etc., trespassed into the house of his brother and dragged him out his room at about 11-11.30 p.m. of the night and beaten up him with a lathi and striking blows with dao, causing bleeding and blunt injuries and under such circumstances, there was little possibility of having any other people present to see the occurrence and to be a witness in the case. Under such circumstances, 'there is no reason to disbelieve PWs 1, 2 and 3 regarding the occurrence, specially, in the circumstances, where their depositions have not been shaken in any manner. As it appears, PW1 with her two children and her injured husband was at home in a remote village and she was not in a position to shift her husband to the hospital during night time and one cannot expect to lodge an FIR immediately after the incident. So the submission of learned counsel that the FIR was not lodged in that night itself carries no merit at all. In the facts and circumstances of the case, I am of the considered opinion that PWs1, 2 and 3 are worthy enough to evaluate the facts and circumstances of the case and learned trial Judge rightly arrived at a conclusion relying on the depositions of those witnesses. The hon'ble Apex Court in the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150 ; AIR 2007 SCW 1835 has held that a close relative cannot be characterized as an "interested" witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be passed on the "sole" testimony of such witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be passed on the "sole" testimony of such witness. Close relationship of witnesses with the deceased or victim is no ground to reject the evidence. On the contrary, close relative of the deceased would normally be much reluctant to spare the real culprit and falsely implicate an innocent one. From the medical evidence we find corroboration of the evidence of PWs1, 2 and 3. Multiple injuries were inflicted on the person of Ratan Debnath by all the accused persons. The weapons of offence were seized by the I.O. during investigation. The seizure list is proved by I.O. but the article seized has not been proved by the prosecution. Any way, in the facts and circumstances of this case, even if those weapons of evidence seized by I.O. were not produced, I find nothing to doubt the core of the case for the lapses of the prosecution. The credible evidence of the witnesses overwhelmingly established that the accused persons had beaten up the deceased Ratan Debnath, causing injuries and consequent to such injuries the deceased died. 9. The next argument advanced by learned counsel of the appellants is that there was possibility of recording dying declaration of the deceased but that has not been done. Learned P.P. has submitted that where eye witnesses of the occurrence were available the recording of dying declaration was not at all necessary for the prosecution. From the evidence on record I find that the deceased was able to speak when admitted in the hospital. Apparently there was no visible grievous injury on the person of the deceased when he was admitted in the hospital. The fatal injury was inside his abdomen which caused his death. There was, therefore, no apparent cause of recording the dying declaration of the deceased. However, in the facts and circumstances of this case, considering the evidence on record, I find no reason to attach any importance in this argument of learned counsel for the appellants. 10. The next argument advanced by learned counsel, Mr. Kar Bhowmik is that all the injuries were simple in nature. Admittedly there was a tenderness found by PW6, the Medical Officer of Manubazar Hospital in the abdomen of Ratan Debnath. 10. The next argument advanced by learned counsel, Mr. Kar Bhowmik is that all the injuries were simple in nature. Admittedly there was a tenderness found by PW6, the Medical Officer of Manubazar Hospital in the abdomen of Ratan Debnath. Tenderness is a very simple and superficial injury and that cannot suggest that a grave injury was caused in the abdomen. If Ratan Debnath sustained any severe injury he would have shifted on that night itself. On the following early morning he was shifted to hospital and that suggests that for some other reasons the deceased might have died for which the appellants cannot be held guilty. 11. Learned P.P. has submitted that in the family of the deceased except his wife and two minor children, there were none. The incident-occurred in a remote village. The accused persons were the next door neighbour and the close relatives. They did not come forward to take the deceased to hospital after the incident and their conduct was so cruel. The helpless woman had taken her husband to the hospital in the early morning and the doctor on examination found as many as five injuries and immediately referred him to Sub-Divisional Hospital for X-ray and better treatment. Under such circumstances, there is no room at all to suspect the prosecution case and the accused persons cannot gain any benefit. I have considered the submission of learned counsel of both sides. PW6 found five injuries on the person of the deceased. The Autopsy Surgeon found those similar injuries and opined that the injury No.4 was grievous, which was an internal injury in the abdominal organ and that injury was sufficient to cause death in ordinary course. I find nothing to disbelieve the opinion of PW7. Let me refer here the observation made by H.W.V. Cox in Medical Jurisprudence and Toxicology, 6th Edition at page 309, where the author stated regarding the 'wounds of the abdomen', which runs, thus : "Puncture of the stomach may lead to death from chemical peritonitis and puncture of the intestines may also lead to a septic or faeculent peritonitis. The large blood vessels in the centre of the abdomen are vulnerable as there is little protection overlying them except mesentery and intestines. Stab wounds of the central abdomen may puncture the abdominal aorta or inferior vena cava. The kidneys may also be injured by lateral wounds in the loins. The large blood vessels in the centre of the abdomen are vulnerable as there is little protection overlying them except mesentery and intestines. Stab wounds of the central abdomen may puncture the abdominal aorta or inferior vena cava. The kidneys may also be injured by lateral wounds in the loins. In the lower abdomen, injuries to the groin may cause torrential haemorrhage from damage to the iliac or femoral blood vessels. Apart from stab wounds, blunt injuries to the abdomen may cause many lesions. Kicking is particularly dangerous and ruptures of the liver, spleen, mesentery or intestine may occur. Severe or fatal internal haemorrhage may occur without any sign of injury on the abdominal wall such as bruising or abrasions, especially if clothing overlies the area. A particular injury, sometimes seen in the "battered child syndrome", is a blow to the central abdomen which crushes the duodenum against the front of the spinal column, sometimes transecting it almost as cleanly as if it was cut by a scalpel. This naturally leads to haemorrhage and peritonitis. Kicking in the loin may rupture a kidney and in the lower abdomen, injuries to the genitalia in the male may cause massive haemorrhage into the scrotum. Sometimes the neurogenic shock element of a blow or kick in the genitals may cause sudden instantaneous death." In view of the oral and opinion evidence on record, which is not shaken in any manner, I find no reason at all to consider the submission of learned counsel, Mr. Kar Bhowmik and in my considered opinion the finding of the learned trial Judge was absolutely right and should not be disturbed. 12. On careful perusal of the evidence on record, I am of the opinion that the accused persons had no intention to commit murder. They have for the reasons best known to them assaulted the deceased causing injuries. They had beaten up the deceased causing injury in the abdomen and the injury was severe, which may cause death in ordinary course. So it is to be presumed that the accused persons had the knowledge that such injury likely to cause death of the deceased and, therefore, they have committed culpable homicide, which does not amount to murder. Learned Sessions Judge carefully considered that aspect and arrived at a finding of guilty of the accused persons under section 304, Part II of IPC. 13. Learned Sessions Judge carefully considered that aspect and arrived at a finding of guilty of the accused persons under section 304, Part II of IPC. 13. The next point of argument by learned counsel, Mr. Kar Bhowmik is that the learned Sessions Judge mechanically examined the convicts under section 313 of Cr.PC Similar questions were put to all the witnesses and the questions were of Xerox copies in separate sheets. Such mechanical examination of the accused persons under section 313 of Cr.PC has deprived the accused persons in giving reasonable explanation of the circumstances appearing in the evidence against them. In support of his contention, learned counsel referred the decisions of this court Sh. Lalsangzuala v. State of Mizoram, 2011(1) GLT 47l and Gopal Goraik v. State of Assam, 2011 (2) GLT 425. In those reported cases, certain material circumstances were not at all put to the accused persons and thereby the accused persons were deprived of explaining the circumstances. But in the present case, though, similar questions were put to all the witnesses, I find that all the material facts and circumstances appearing in the evidence were put to the accused persons. The evidence on record as already reproduced above shows that a single set of incriminating evidence regarding the assault by all the accused persons together was brought on record, and, therefore, similar questions were put to all the accused persons. I find nothing that any prejudice was caused to the accused persons and that the incriminating evidence was not put to them in course of examination under section 313 of Cr.PC. The ratio of those decisions, therefore, is not applicable in the present case. 14. The last argument advanced by learned counsel, Mr. Kar Bhowmik is that the convict Manik Debnath has been differently treated by learned Sessions Judge. While other convicts were given the benefit of section 360 of Cr.PC the convict Manik Debnath was deprived of it. Learned counsel, therefore, prayed for giving the benefit of section 360 of Cr.PC, if the judgment and order of conviction is upheld by this court. Learned P.P. has submitted that the convict, being a full-blood brother, had severely beaten his brother and even did not take him to hospital. There is also nothing on record that even after hospitalization and after death any step was taken by the convict towards the family of the deceased. Learned P.P. has submitted that the convict, being a full-blood brother, had severely beaten his brother and even did not take him to hospital. There is also nothing on record that even after hospitalization and after death any step was taken by the convict towards the family of the deceased. There was no repentance of the convict and under such circumstances the trial Judge rightly refused benefit of section 360 of Cr.PC to convict Manik Debnath. I have considered the submissions of learned counsel of both sides. The finding of learned Sessions Judge in refusing the benefit of section 360 of Cr.PC to the convict Manik Debnath, in my considered opinion, was rightly rewarded. The convict being a full-blood brother assaulted his brother in dead hours of night and thereafter even did not consider for shifting the deceased in hospital. There is also no evidence that he attended the hospital, while the deceased was under treatment or that he took care of the family of the deceased after his death. The convict stated nothing in course of examination under section 313 of Cr.PC as to under what circumstances he had committed the offence. No defense evidence adduced. The conduct of the convict Manik Debnath does not deserve a lenient consideration. The trial Judge has already taken a most lenient view regarding the sentence and I find no reason to disturb it. 15. For the foregoing reasons I find no merit in the appeal and the appeal accordingly stands dismissed. Send back the LC Records along with a copy of the judgment. The convict must surrender immediately and serve out the sentence.