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2012 DIGILAW 484 (GAU)

Anjali Majumder v. State of Tripura

2012-04-19

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. The convict-appellants, named above, preferred this criminal appeal under Section 374 of Cr.P.C. against the judgment and order of conviction and sentence, dated 16.12.2004, passed by learned Sessions Judge, South Tripura, Udaipur, in connection with Sessions Trial No. ST 21(ST/U) of 2004. Learned Sessions Judge found the convict-appellants Anjali Majumder and Tutan Majumder guilty of committing offence under Section 323 of IPC and sentenced Anjali Majumder to pay a fine of Rs. 1,000/-, in default to suffer S.I. for three months and also sentenced Tutan Majumder to suffer imprisonment for six months and also to pay a fine of Rs. 1,000/- in default to suffer imprisonment for more three months. Learned Sessions Judge also convicted accused-appellant Nirode Majumder for commission of offence under Section 304 Part-II r/w Section 34 of IPC and sentenced him to suffer RI for three years and to pay a fine of Rs. 1,000/-, in default to suffer imprisonment for further three months. Heard learned Amicus Curiae, Ms. D. Bhattacharjee for the appellants and learned Addl. P.P, Mr. P. Bhattacharjee for the State respondent. 2. Prosecution case, in short, is that on 02.03.2003 at about 06.30 am, Khokan Das (PW.2) sent his son Keshab Das (PW.3) to the house of accused Nirode Majumder, situated just opposite to their house, to collect some money from Nirode Majumder, which the accused Nirode Majumder was due to pay to Khokan Das and on that issue, there was an altercation between accused Nirode Majumder and Keshab Das. Nirode was hurling abusive words towards Keshab Das and his father Khokan Das and at that time Monoranjan Majumder, one of the victims(PW.1), a close neighbour of Nirode Majumder along with Nur Islam(PW.4) were passing through the road and Monoranjan interfered in the quarrel between Nirode and Keshab to which Nirode took exception and started abusing Monoranjan with filthy words. Nirode was hurling abusive words towards Keshab Das and his father Khokan Das and at that time Monoranjan Majumder, one of the victims(PW.1), a close neighbour of Nirode Majumder along with Nur Islam(PW.4) were passing through the road and Monoranjan interfered in the quarrel between Nirode and Keshab to which Nirode took exception and started abusing Monoranjan with filthy words. At that time Nirode with his wife, the accused Anjali, and their sons, the accused Shipan and Tutan, started assaulting Monoranjan and, on seeing it, Biswajit Majumder(victim), son of Monoranjan, arrived there to which he was also attacked by the accused persons and on their direction accused Shipan Majumder struck a dagger blow on the belly of Biswajit and Biswajit received severe bleeding injury and he was taken to Tripura Sundari District Hospital, Udaipur immediately thereafter and Biswajit succumbed to the injuries on 07.03.2002 On the basis of an FIR lodged by Monoranjan Majumder on 02.03.2003 itself, the date of occurrence, R.K. Pur P.S. case No. 82 of 2003 was registered under Sections 326 and 307 of IPC r/w Section 34 of IPC and on investigation police submitted charge sheet against the appellants Nirode Majumder, Anjali Majumder, Tutan Majumder and other accused Shipan Majumder for commission of offence under Sections 326, 307, 302 r/w Section 34 of IPC. Cognizance was taken on the basis of the police report and in due course on commitment of the case to the Court of Sessions, learned Sessions Judge on 15.04.2004 framed the following charges against the accused persons: "IN THE COURT OF SESSIONS JUDGE SOUTH TRIPURA : UDAIPUR. CASE NO. S.T. 21(ST/U)/2004 CHARGE I, Sri P.B. Nath, Sessions Judge, South Tripura, Udaipur do hereby charge you:- 1) Sri Nirode Majumder, 2) Sri Totan Majumder, 3) Smti. Anjali Majumder and 4) Sri Shipan Majumder. as follows: 1stly, That all of you on 02.03.2003 at about 6.30 hours at Mog Puskarini under P.S. R.K. Pur, Sub-Division Udaipur, in furtherance of common intention of all Shipan Majumder voluntarily caused grievous hurt to i) Monoranjan Majumder(complainant) and ii) Biswajit Majumder by dagger which is an instrument for stabbing and you thereby committed an offence punishable under Section 326 of the Indian Penal code read with Section 34 of the Indian Penal Code and within my cognizance. 2ndly, that all of you on the same date, time and place as noted in the first charge in furtherance of common intention of all one of you Sri Shipan Majumder commit grievous hurt to Biswajit Manumder by stabbing and as a result died on 07.03.2003 due to injury, at T.S. District Hospital, Udaipur and you all thereby committed an offence punishable under Sec. 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code and with my cognizance. And I hereby direct that you be tried on the said charges by this Court of Sessions. (P. B. Nath) Sessions Judge South Tripura : : Udaipur" 3. In course of trial, prosecution examined 13(thirteen) witnesses and out of them PWs. 1, 2, 3 and 4 are the material witnesses of the prosecution and all of them are eye witnesses of the occurrence. PW.10 is the doctor, who conducted postmortem examination over the dead body. PW.11 is the doctor, who examined the injured Monoranjan Majumder in the hospital. PWs.12 and 13 are the Investigating Officers of the case. PWs.5, 6, 7, 8, and 9 are the formal witnesses to the seizure of wearing apparels and weapon of offence (dagger) and the inquest report, etc. Learned Sessions Judge found the accused appellants Nirode Majumder and his son Shipan Majumder guilty of committing offence under Section 304 Part-II of IPC and sentenced Nirode Majumder as aforesaid and released Shipan Majumder on probation under the Probation of Offenders Act considering that he was minor at the time of occurrence. Learned Sessions Judge also found accused Anjali Majumder and Tutan Majumder guilty of committing offence punishable under Section 323 of IPC and sentenced them as aforesaid. 3. Learned counsel, Ms. Bhattacharjee appearing for the appellants has submitted that the accused persons and the informant Monoranjan Majumder are close neighbours. Monoranjan interfered in the quarrel between accused Nirode and witness Keshab. Thereafter, Monoranjan with his son Biswajit trespassed in the house of the accused persons and assaulted the accused persons causing injury for which the accused persons instituted a police case (R.K. Pur P.S. case No. 83 of 2003) and that was also charge-sheeted by police and the case was also tried by learned Sessions Judge simultaneously, and in that case, however, Monoranjan and his sons were acquitted. Learned counsel, Ms. Learned counsel, Ms. Bhattacharjee has also submitted that in the midst of quarrel accused Shipan, as alleged, struck a dagger blow on the belly of deceased Biswajit and, unfortunately, Biswajit died and Shipan Majumder was held guilty under Section 304 P-II of IPC and that part of the judgment and order of conviction and sentence of Shipan has not been challenged. Learned counsel has further submitted that there is no legal evidence at all to implicate Nirode Majumder for offence under Section 304 P-II of IPC. Regarding offence under Section 323 of IPC as against accused Anjali and Tutan, there is no independent evidence to support the case and so benefit of doubt may be given to all the convict-appellants. 4. Learned Addl. P.P., Mr. Bhattacharjee, on the other hand has submitted that learned Sessions Judge has already taken a lenient view and there is nothing to interfere in the judgment. 5. The alleged incident occurred on 02.03.2003 in the early morning at about 06.30 a.m. FIR was lodged at about 10.35 a.m. The informant Monoranjan Majumder is an illiterate person and put his LTI at the bottom of the written FIR. Contents of FIR have not been proved by examining the scribe and so it cannot be taken into consideration. 6. As already stated earlier, PWs.1, 2, 3 and 4 are only the material witnesses in this case. Learned Sessions Judge held the accused Nirode Majumder guilty of Section 304 P-II r/w Section 34 of IPC. The allegation is that he has shared common intention with accused Shipan Majumder to cause injury to Biswajit with a view to kill him and consequent to such common intention Shipan struck dagger blow on the belly of Biswajit, and as a result of which Biswajit died. On meticulous examination of evidence on record, which has been reflected in the judgment of the trial Court, I find no iota of evidence that there was a previous meeting of mind or a pre-arranged plan between the accused Nirode and Shipan to cause injury to Biswajit with a view to kill him. On meticulous examination of evidence on record, which has been reflected in the judgment of the trial Court, I find no iota of evidence that there was a previous meeting of mind or a pre-arranged plan between the accused Nirode and Shipan to cause injury to Biswajit with a view to kill him. On bare perusal of the evidence on record and consideration of the facts and circumstances it is clear that there was a free fight between the members of two families i.e. Monoranjan Majumder and the deceased Biswajit on one side and Nirode Majumder with his wife and sons on the other, and in course of that fight Shipan Majumder suddenly struck a dagger blow on the belly of Biswajit and that blow became fatal and the life of young Biswajit was taken away. For fair appreciation, let us note here the material part of the evidence in respect of punishment under Section 304 P-II r/w Section 34 of IPC and under Section 323 of IPC. PW.1 stated-"At that time Nirode Majumder threatened me, and other persons i.e. Anjali Majumder, Shipan Majumder and Tutan Majumder assaulted me. They appeared from their house and assaulted me. At that time my son Biswajit was coming towards us. The accused persons Nirode, Anjali and Tutan abused my son by naming "Shuarer Bachcha" and they directed to kill him. At that time Shipan Majumder took one dagger from himself and pushed Biswajit Majumder with it in his belly." The above statement of the witness has not been shaken in the cross-examination. PW.2 stated-"At that time Anjali Majumder appeared there and started assaulting Manoranjan Majumder by sweeping broom. At that time Nirode, Tutan and Shipan appeared there. They are assaulting Manoranjan. At that time Biswajit, the son of Manoranjan arrived there from the west. When he went there to rescue his father at that time Nirode Majumder directed that Biswajit should be caught and assaulted. At that time Shipan Majumder struck a blow with a dagger on the belly of Biswajit. Other persons caught hold of Biswajit and Biswajit was being stabbed by Shipan Majumder." In cross-examination, it was found that the witness did not state to the police officer the statement that Nirode Majumder directed his son Shipan that Biswajit should be caught and assaulted. Other persons caught hold of Biswajit and Biswajit was being stabbed by Shipan Majumder." In cross-examination, it was found that the witness did not state to the police officer the statement that Nirode Majumder directed his son Shipan that Biswajit should be caught and assaulted. PW.3 stated-"At that time Anjali Majumdr took a sweeping broom and assaulted Manoranjan Majumder when Manoranjan was in front of the gate of Nirode Majumder. When Anjali Majumder was assaulting Manoranjan at that time Biswajit appeared there from the western side and at that time Nirode Majumder and Tutan Majumder told to Shipan Majumder to caught hold of Biswajit and also told that he should assault Biswajit. Then Shipan Majumder drew a dagger and strike on Biswajit in the belly." In cross-examination, the witness admitted that he did not state to police officer that when Biswajit appeared Nirode and Tutan directed Shipan to assault Biswajit. PW.4 stated-"At that time the wife of Nirode Das appeared there with sweeping broom and started assaulting Manoranjan. The wife of Nirode Das wrapped Manoranjan with the help of clothe dashed down on the ground. On hearing hue and cry Biswajit appeared there. He went to rescue his father. At that time Shipan drew a 'Bhujali' and struck on Biswajit" The above statement of the witness has not been shaken. 7. On careful examination of the evidence on record, material part of which reproduced above, it is clear that Shipan Majumder in the midst of the incident struck dagger blow on the belly of deceased Biswajit and there was no previous meeting of mind or pre-arranged plan between Shipan and Nirode. So, the finding of the learned Sessions Judge against Nirode Majumder does not stand on any legal evidence and is liable to be interfered. 8. On careful perusal of the evidence on record including the evidence of Dr. Debasish Roy (PW.11), it appears that Monoranjan was assaulted by the accused Anjali and Tutan and their punishment under Section 323 of IPC does not deserve interference. Accordingly, the judgment and order of conviction and sentence of accused Nirode Majumder under Section 304 PII r/w Section 34 of IPC is set aside. The accused-appellant Nirode Majumder be set at liberty at once. The judgment and order of conviction and sentence under Section 323 of IPC against Anjali and Tutan is upheld. Accordingly, the judgment and order of conviction and sentence of accused Nirode Majumder under Section 304 PII r/w Section 34 of IPC is set aside. The accused-appellant Nirode Majumder be set at liberty at once. The judgment and order of conviction and sentence under Section 323 of IPC against Anjali and Tutan is upheld. Send back the L.C. records along with a copy of this judgment.