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2012 DIGILAW 204 (GAU)

Dulal Pal v. State of Tripura

2012-02-14

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. The appellants named above, presenting a Memo. of Appeal, challenged the judgment and order of conviction and sentence dated 25.09.2004, passed by learned Addl. Sessions Judge, Kamalpur, in Sessions Trial No. 38(NT/KMP)2002, whereby learned Addl. Sessions Judge found them guilty of committing offence punishable U/S 447 and S. 304 Part-II read with S. 149 of IPC and sentenced them to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 4,000/- each, in default of payment of fine, to suffer simple imprisonment for four months U/S 304 Part-II read with S. 149 of IPC and also to pay a fine of Rs. 500/- each, in default of payment of fine, to suffer simple imprisonment for one month U/S 447 of IPC. 2. I have heard learned counsel, Mr. P.K. Biswas, appearing for the appellants and learned Addl. P.P., Mr. A. Ghosh, appearing for the State respondent. 3. At the very outset, learned counsel, Mr. P.K. Biswas has submitted that the convict-appellant Dulal Pal has already served out the sentence and now he is insisting the appeal only for accused-appellants, Dilip Pal and Pradip Pal. 4. Briefly stated prosecution case was that accused Dulal Pal had sold a table fan to PW.4, Sankar Deb at a price of Rs. 700/- and Sankar Deb paid Rs. 500/- in cash at once and Rs. 200/- was lying due to be paid. On 25.04.1999 at about 06.00 am, Dulal Pal went to Sankar Deb, who was at that time grazing/rearing his cattle in the courtyard of his brother, Samir Deb and Dulal demanded his due Rs. 200/-, and on that issue, there was an altercation between them and Dulal picked up a piece of brick and attacked Sankar Deb and assaulted him. On seeing it, Anita Deb, W/O Samir Deb called her husband, who was sleeping inside the room and he came out and requested Dulal to cool down and to go away. 200/-, and on that issue, there was an altercation between them and Dulal picked up a piece of brick and attacked Sankar Deb and assaulted him. On seeing it, Anita Deb, W/O Samir Deb called her husband, who was sleeping inside the room and he came out and requested Dulal to cool down and to go away. Dulal went near the road and called his brothers accused-appellants, Dilip Pal and Pradip Pal, and they at once armed with lathi, trespassed in the house of Samir Deb and at that time Kalyani Deb and Milan Bala Deb i.e. sister and mother of Samir Deb tried to resist Dilip and Pradip but Dilip and Pradip assaulted them, and thereafter, Dulal, Dilip and Pradip started assaulting Samir with lathi and Samir snatched the lathi from the hand of Dulal and beaten up Dulal with lathi blows, and at that time Dulal picked up a dao(a sharp cutting weapon, used for cutting vegetables, hereinafter mentioned as "dao") and dealt a blow on the head of Samir, and as a result, Samir received bleeding injury on his head and fell down on the ground. Hearing the cries, nearby people and neighbours came at the place of occurrence, and thereafter, Samir was shifted to Kulai Hospital from where he was referred to G.B. Hospital and Samir died in G.B. Hospital on 28.04.1999. The injured Anita Deb, Kalyani Deb, Milan Balal Deb, Sankar Deb had also undergone treatment at Kulai Hospital. On the basis of an FIR lodged by Anita Deb, W/O Samir Deb, Ambassa P.S. case No. 18/99 was registered on 25.04.1999 at 09.30 hrs. U/Ss 448, 324 read with S. 34 and Section 427 of IPC and the investigation was entrusted to SI Binod Debbarma. After the death of victim, Samir Deb on 29.04.1999, Section 302 was added and on completion of investigation, I.O. submitted charge sheet against the accused appellants for commission of offence punishable U/Ss 448/323/307/427/302 read with S. 34 of IPC. 5. Cognizance was taken on the basis of police report and in due course the case was committed to the Court of learned Addl. 5. Cognizance was taken on the basis of police report and in due course the case was committed to the Court of learned Addl. Sessions Judge, who in turn after compliance of formalities, framed charges against the accused appellants for commission of offence punishable U/S 448 IPC and S. 324 read with S. 34 of IPC and S. 302 read with S. 34 of IPC, to which the accused persons pleaded not guilty and claimed to be tried. Charges, so framed, against the accused persons are as follows: Firstly, that on 25.04.99 at about 6 a.m. at Ambassa Colony in the house of Sri Sankar Deb in furtherance of the common intention of you all entered into the dwelling house of Sri Sankar Deb with intent to commit an offence thereby committed house trespass punishable U/s-448 I.P.C. within the cognizance of this Court. Secondly; that on the said date, time and place you all in furtherance of common intention voluntarily caused hurt to Sri Sankar Deb, Smti. Kalyani Deb, Smti. Anita Deb, Smti. Milan Bala Deb and Sri Samir Deb by means of brick bats and lathi which was used as a weapon of offence thereby punishable U/s-324 read with section 34 I.P.C. within the cognizance of this Court. Thirdly; that on the said date, time and place in furtherance of common intention of you all one of you Sri Dulal Paul did commit murder by intentionally causing the death of Sri Samir Deb thereby committed an offence punishable U/s-302 I.P.C. read with Section 34 I.P.C. within the cognizance of this Court of Sections. 6. In course of trial, prosecution examined as many as 11 witnesses, namely, PW.1 Smti. Anita Deb, PW.2 Smti. Kalyani Deb, PW.3 Smti. Milan Bala Deb, PW.4 Shri Sankar Deb, PW.5 Shri Subhash Das, PW.6 Shri Sunil Debnath, PW.7 Shri Gopal Malakar, PW.8 SI Benode Debbarma, PW.9 Dr. Kishore Kr. Nag, PW.10 Dr. Ranjit Das, PW.11 S.I. Nanda Lal Das. Out of the aforesaid witnesses, PWs.1, 2, 3 and 4 were the wife, sister, mother and elder brother of deceased victim Samir Deb and out of them PW.1 was the informant of the case and all of them were injured in the incident. PWs.5, 6 and 7 were the neighbours and out of them PW.5 was declared hostile by the prosecution, and he was cross-examined by both side. PWs.5, 6 and 7 were the neighbours and out of them PW.5 was declared hostile by the prosecution, and he was cross-examined by both side. PWs.6 and 7 were the witnesses to the seizure of Exbt.MO-1 series i.e. a dao, lathi and piece of brick. There was nothing more material in their depositions. PW.9 was the medical officer of Kulai Hospital, who examined PWs.1, 2, 3 and 4 in the hospital and submitted report. PW.10 was the autopsy surgeon who conducted postmortem examination over the dead body of deceased Samir Deb. PW.11 was the police officer who registered the case and PW.8 was the I.O. of the case. 7. After the closure of prosecution evidence accused persons were examined U/S 313 of Cr.P.C., and on call, they declined to adduce defence evidence. The prosecution witnesses were cross-examined referring to the defence case and in course of cross-examination of PW.8(I.O.), defence exhibited the records of the counter case i.e. Ambassa P.S. Case No. 19/1999, registered on the basis of an FIR lodged by accused Dilip Pal for commission of offence U/S 324 read with S. 34 of IPC, which was marked as Exbt.D.1 and the certified copies of the injury report of the accused persons were marked as Exbt.D.2 series and the certified copy of charge sheet of Ambassa P.S. case No. 19/1999, was marked as Exbt.D.3 series. The defence case was that accused Dulal Pal sold a table fan to PW.4 Sankar Deb at a price of Rs. 700/- and Sankar Deb paid Rs. 500/- and the rest Rs. 200/- was due to be paid. On the date of occurrence, in the morning, Dulal went to the house of Sankar and demanded the amount and on that issue Sankar picked up quarrel with Dulal and at that time Sankar with his brother Samir Deb and Haribilas Deb attacked Dulal and beaten up him. Hearing his cries his brothers Dilip Pal and Pradip Pal also went there to rescue Dulal but they were also beaten up, striking blows on their head with sharp weapons. Dulal was helpless being attacked and beaten up and in course of such assault and he picked up a dao from the veranda of Samir Deb and stuck a blow on head of Samir as a right of private defence and Samir received injury. Dulal was helpless being attacked and beaten up and in course of such assault and he picked up a dao from the veranda of Samir Deb and stuck a blow on head of Samir as a right of private defence and Samir received injury. All the accused persons received severe bleeding injuries on their head and were hospitalized. Dilip Pal lodged the FIR on the basis of which Ambassa P.S. case No. 19/1999 was registered and on investigation police submitted charge sheet against Sankar Deb and his brothers. 8. On perusal of the evidence and materials on record and after hearing learned counsel of both sides, it appears that the accused appellants and the victims were close neighbours and the locality was densely populated. The house of deceased, Samir and his brother PW.4, Sankar Deb were adjacent to each other. The incident cropped up when Dulal went to PW.4, Sankar and demanded due amount of Rs. 200/- which was to be paid by Sankar towards price of a table fan sold by accused Dulal. It further appears that at first the quarrel was cropped up between Dulal and Sankar, and thereafter, all others came to the scene of occurrence. 9. Learned counsel, Mr. P.K. Biswas has submitted that the incident occurred between the accused Dulal on one side and the deceased Samir Deb and PW.4, Sankar Deb on the other side. The accused appellant Dilip and Pradip went there hearing the cries but they had no overt act. Samir received only one injury on his head dealt by accused Dulal in course of his right of private defence, since he was under serious assault by Samir, Sankar and their brother Haribilas. The evidence of all the injured witnesses made it clear that the fatal blow was dealt with by Dulal alone and Dilip and Pradip did nothing. The autopsy surgeon found no other injury on the person of Samir which suggests that Dilip and Pradip neither formed any common intention with Dulal nor were a member of the unlawful assembly to draw aid of S. 149 of IPC. Under such circumstances, conviction and sentence of Dilip and Pradip U/S 304 P-2 read with S. 149 of IPC was absolutely wrong and liable to be set aside. Mr. Under such circumstances, conviction and sentence of Dilip and Pradip U/S 304 P-2 read with S. 149 of IPC was absolutely wrong and liable to be set aside. Mr. Biswas has further submitted that the principal accused Dulal has already served out the sentence and nothing remains for the punishment of the accused appellants, Dilip and Pradip. It has further submitted by learned counsel that the Exbt.D.2 series shows that the accused persons all received severe head injuries and the defence story that they were attacked by the deceased, Samir and his brother PW.4, Sankar and another Haribilas, all accused of counter case, and under such circumstances, while the accused persons received severe head injuries they had a definite right to have a right of private defence of their persons and even if anyone or all of them committed murder, they are entitled to get the benefit of such right of private defence. He has also submitted that in the facts and circumstance, defence case has become more probable than that of the prosecution case, and at best, Dulal Pal may be held guilty of committing offence and as Dulal has already served out the sentence, the appellants, Dilip and Pradip are entitled to get an order of acquittal. 10. I have meticulously gone through the evidence on record. PWs.1 to 4 vividly narrated the incident and there was a searching cross-examination of those witnesses. For a decision of the present case regarding the conviction U/S 304 Part-II read with S. 149 of IPC, let us see the incriminating statements made by those witnesses regarding assault. PW.1 stated in her examination-in-chief that all the three accused persons started beating her husband by their lathies. Her husband, while resisting blows, managed to snatch the lathi of Dulal and gave him a blow for his self defence. Dulal finding no other way picked up a dao lying in her veranda which she used for cutting vegetables and dealt a blow on the head of her husband. Her husband fell down on the ground. They raised cry and all the accused persons left the place of occurrence. PW.2 stated, entering into the house of Samir, the accused persons started beating Samir indiscriminately. Samir managed to snatch the lathi of Dulal to save him and gave some blows. Her husband fell down on the ground. They raised cry and all the accused persons left the place of occurrence. PW.2 stated, entering into the house of Samir, the accused persons started beating Samir indiscriminately. Samir managed to snatch the lathi of Dulal to save him and gave some blows. Ultimately, Dulal picked up the dao lying in the veranda of Samir and gave one blow on the head of Samir. That dao was used for cutting the vegetables in the house of Samir. PW.3 stated, entering into the courtyard of Samir, all the three accused persons started beating Samir. Samir managed to snatch the lathi of Dulal and gave some blows. Dulal picked up the dao lying in the veranda of Samir and gave one blow on the head of Samir. Samir sustained bleeding injury and had fallen on the ground. PW.4 stated, Samir managed to snatch the lathi of Dulal and gave some blows. Dulal picked up the dao lying in the veranda of Samir and gave a blow on the head of Samir and Samir fell down on the ground. 11. The above statements of the witnesses showing the presence of all the three accused persons in the scene of occurrence and Dulal was having with a lathi in his hand and that was snatched away by Samir and Samir dealt lathi blows on Dulal, who having found no other alternative, picked up the dao from the veranda of Samir and dealt a blow on the head of Samir and Samir received the injury. According to the prosecution, Dulal alone went to the house of PW.4 Sankar to get his money, and admittedly, at that time the accused Dilip and Pradip were not with him. It is admitted fact that the altercation/quarrel was picked up between Sankar and Dulal, and thereafter, the other people came to the scene. The allegation that Samir was severely beaten up by all the accused persons with lathi blows cannot be believed as the autopsy surgeon found no mark of other injury on the person of Samir. Prosecution failed to adduce any iota of evidence to show that there was any injury except that of head injury on the person of Samir. PW.1 in her cross-examination stated that the accused persons dealt 10/15 lathi blows on her husband. Prosecution failed to adduce any iota of evidence to show that there was any injury except that of head injury on the person of Samir. PW.1 in her cross-examination stated that the accused persons dealt 10/15 lathi blows on her husband. Had it so, there might have the marks of injuries on the person of Samir, and to prove it, the injury report of Samir was not produced and the postmortem report as well as the evidence of PW.10 discloses nothing that Samir had any other injury. Learned Addl. Sessions Judge has taken the aid of S. 149 of IPC to rope accused Dilip and Pradip along with accused Dulal for the offence U/S 304 Part-II of IPC. Perhaps, the learned Judge missed the very definition of the word, "unlawful assembly" as defined U/S 141 of IPC. Unless there was an unlawful assembly, the principle of common object cannot be applied. Admittedly, the accused persons were three in numbers, which does not constitute an unlawful assembly and since, admittedly, there was no previous meeting of mind and pre-arranged plan and also there was no evidence that they had any intention to kill Samir or to assault him causing injury which resulted in his death, the accused Dilip and Pradip can in no way be held guilty with the aid of S. 149 of IPC. Learned Addl. Sessions Judge, suddenly jumped to the conclusion of applying S. 149 of IPC without discussing the evidence on record to draw the inference of common object. Further Exbt.D.2 series shows that all the accused persons received severe cut injuries on their head whereas the prosecution witnesses stated that Samir dealt some lathi blows to drag him which seems to be not correct. Under such circumstances, while there was case and counter case and both sides received injuries in the mutual fight, it will be improper to hold that the accused persons were the aggressors alone. The incident occurred, as it appears in the house of the deceased Samir. On careful perusal and assessment of all the evidence on record, I am in great doubt and I find no cogent evidence to hold that the accused appellants, Dilip and Pradip also shared common object or formed common intention on the spot with accused Dulal to assault deceased Samir. On careful perusal and assessment of all the evidence on record, I am in great doubt and I find no cogent evidence to hold that the accused appellants, Dilip and Pradip also shared common object or formed common intention on the spot with accused Dulal to assault deceased Samir. They are, therefore, entitled to get the benefit of doubt and are entitled to get an order of acquittal from the charge U/S 304 Part-II read with S. 149 of IPC. 12. This is a hopeless judgment passed by the learned Addl. Sessions Judge. No finding was given on the charge U/S 324 of IPC though PWs.1, 2, 3 and 4 all stated about the injuries received by them and the injury report also proved by PW.9, the doctor of Kulai Hospital. They all were treated in the hospital for the simple injury sustained by them. Unfortunately, the trial court recorded no finding on the charge and the prosecution also preferred no counter appeal before this Court. Under such circumstances, after 12 years of incident, I feel it unnecessary to take recourse for punishment of the accused persons on that charge. Regarding punishment U/S 447 of IPC, I find nothing to interfere. The appellants definitely trespassed in the house of the informant with a view to commit an offence and the finding of the learned Addl. Sessions Judge to that effect does not deserve to be interfered. Learned Addl. Sessions Judge sentenced the accused persons to pay a fine of Rs. 5,000/-, which is abnormally minimum and I find nothing to interfere in it. 13. In the result, the appeal is partly allowed. The judgment and order of conviction of sentence of the appellants, Dilip Pal and Pradip Pal U/S 304 Part-II read with S. 149 of IPC is set aside. The sentence of imprisonment in respect of convict, Dulal Pal U/S 304 Part-II is maintained. The judgment and order of conviction and sentence of all the accused appellants U/S 447 of IPC is also maintained. 14. Send back the LC records along with a copy of this judgment.