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2012 DIGILAW 55 (GAU)

Bhaba Ranjan Sarkar v. State of Tripura

2012-01-16

SUBHASIS TALAPATRA

body2012
JUDGMENT Hon'ble Mr. Justice S. Talapatra 1. Heard Mr. S. Deb, learned senior counsel, assisted by Mr. S. Dutta, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned Addl. Public Prosecutor representing the State. 2. This appeal filed under Section 374 of the Code of Criminal Procedure,1973 is directed against the judgment and order of sentence dated 14.05.2004, passed by the learned Asstt. Sessions Judge, Agartala, West Tripura, in Sessions Trial No. 49(WT/A) of 2003. 3. The prosecution case in brief as emerged from the record is that on 21.09.2002 at about 4/4.30 pm, the appellant stabbed Pritish Sarkar on his back and abdomen by a kirich near the Naba Diganta Club. On receiving the injuries, the injured Pritish ran towards the house of Sri Swapan Sarkar for saving him, where the wife of Sri Swapan Sarkar, namely Smti Pratima Sarkar bandaged the injuries by an indigenous towel (gamcha) and thereafter the injured was taken to the hospital for further treatment and ultimately he recovered from the injuries. 4. The information was lodged in writing on the very day of incidence to the Amtali Police Station and that the FIR since disclosing cognizable offence was registered as Amtali P.S. Case No. 60/2002 under Section 341/326/34 IPC. On completion of investigation, charge sheet was filed under Sections 341/326/307 read with Section 34 IPC. As prima facie case according to the investigation was established, on taking cognizance, learned trial court put the appellant to face the trial. Initially the charge was framed under Sections 341/307 read with Section 34 IPC to which the accused pleaded not guilty and claimed to be tried. 5. To drive home the charge, the prosecution examined as many as 13 witnesses including the Investigating Officer. The prosecution also brought into evidence certain documents as Exbs. 1,2,3,4 and some extracts of statements were only brought on evidence by the defence as Exbt.-A, even though the defence did not adduce any other evidence. After recording the statement of the witnesses, the appellant was examined under Section 313 Cr.P.C. He stated at that time that he would not examine any further witness in his defence. Thereafter, the learned court passed the impugned judgment. The appellant was convicted under Section 307 IPC primarily on the basis of the evidence of PWs. After recording the statement of the witnesses, the appellant was examined under Section 313 Cr.P.C. He stated at that time that he would not examine any further witness in his defence. Thereafter, the learned court passed the impugned judgment. The appellant was convicted under Section 307 IPC primarily on the basis of the evidence of PWs. 2, 5 and 12 and was sentenced to suffer rigorous imprisonment for five years along with a fine of Rs.5,000/- in default of payment of fine further SI for six months. 6. At the outset, Mr. S. Deb, learned senior counsel appearing for the appellant, has pointed out that by relying on the evidence of PW.8 for the purpose of corroboration, the learned trial court had committed a serious illegality as that witness was declared hostile by the court and the way his statement as recorded under Section 161 Cr.P.C. (Exbt.2) was exhibited cannot survive the test of established procedure of law. Apart that, he with much emphasis submitted that there was no piece of evidence to establish the intention or circumstances in which the intention can be drawn. As consequence, the finding that the prosecution has established the charge under Section 307 IPC cannot sustain and the impugned judgment warrants interference. In support of his contention, the learned senior counsel drawing attention to the First Information Report (Exbt.1), the statements of PW.1, who is the informant, PW.2 and thereafter to PWs.5 and 12 submitted that from a threadbare scrutiny of their depositions it would lead nowhere to find intention to kill, which is sine qua non for establishing a charge under Section 307 IPC. 7. Countering the submission of Mr. Deb, learned senior counsel for the appellant, Mr. A. Ghosh, learned Addl. Public Prosecutor representing the State categorically stated that PW.12 was hurriedly shifted to the hospital for medical intervention and on the way he stated that Bhaba, nick name of the appellant had stabbed him and he stood the test of the cross-examination in this regard. Later on, a reference was made to the statement of PW.5, who categorically stated unwaveringly that PW.12 having been inflicted injuries stated to him that the appellant gave a blow with kirich on his back and when he turned gave another blow on his abdomen. PW.5 also stated that he had informed the matter to PW.1 who lodged the information to the police station. PW.5 also stated that he had informed the matter to PW.1 who lodged the information to the police station. He further deposed, appearing before the court that he took Pritish (PW.12) to G.B. Hospital for treatment. That witness, as it reveals abruptly stated that PW.12 was assaulted with kirich with a view to kill him though he was not present at the time of assault. Mr. Ghosh submits that PW.5 has corroborated the vital part of the evidence of PWs.1 and 2 and also PW.12. He also referred that part of the deposition of PW.12 where he had stated that the assault was intended to kill him. But PW.12 did not bring in any episode of animosity or circumstance which might lead to presumption of any such intention. Let us now examine the very important witness i.e. PW.12 who received the injuries with much caution. 8. PW.12 has categorically stated, appearing before the court that while he was riding a bicycle, the appellant was in his behind. Suddenly the appellant stabbed PW.12 on the right side of his back near abdomen and when he turned the appellant gave the second stab on the upper abdomen. PW.12 thereafter rushed towards the house of one Swapan Sarkar (PW.3) to the east of the Naba Diganta Club leaving the bicycle in the Club. The wife of Swapan Sarkar i.e. PW.2 came out from her hut and the PW.12 told her that the appellant had stabbed him. She fastened the wound with an indigenous towel (gamcha) and thereafter with the help of neighbouring people namely Paban Mandal, Chitta Mallik, Tapan Sarkar, he was brought to the hospital by a Maruti Van and being asked by Sri Paban Mandal, he stated that Bhabaranjan Sarkar, the appellant had stabbed him. He further stated that at the request of the appellant he went to the field of Naba Diganta Club by riding a bicycle. According to Mr. Ghosh there is no incongruity in the statements of PWs. 2, 5 and 12 and as such the finding of conviction as passed by the learned trial court call for no interference. 9. I have also gone through the statement of PW.3 namely, Sri Swapan Sarkar, who did not make any disclosure, but reiterated a part of statement of PW.2. Ghosh there is no incongruity in the statements of PWs. 2, 5 and 12 and as such the finding of conviction as passed by the learned trial court call for no interference. 9. I have also gone through the statement of PW.3 namely, Sri Swapan Sarkar, who did not make any disclosure, but reiterated a part of statement of PW.2. From the statement of PW.3 it reveals that PW.12 entered his house for shelter and the PW.12 did not tell him the cause of injuries. The PW.3 also did not ask about the same as the PW.12 was visibly shakened. PW.4 namely, Sri Paresh Ch. Das also did not disclose anything of material importance. He after hearing the alarm gathered in the house of PW.3. PW.6 Sri Bhakta Mandal also did not divulge anything of material importance and as such those statements were not relied by any of the learned counsel appearing for the parties. PW.7 Sri Uttam Sarkar though examined by the court, did not divulge anything of relevance. 10. Though PW.8 was declared hostile, the prosecution has brought the statement recorded under Section 161 Cr.P.C. as Exbt.2 in evidence. But the procedure that the court had followed in bringing the statement of respondent No. 2 in evidence is absolutely flawed and cannot sustain in law inasmuch as that the court cannot exhibit a statement as recorded by the police officer under Section 161, Cr.P.C. The procedure that the trial court ought to have followed is well established by now. The statement ought to have been shown to the witness by the prosecution and the trial court should have recorded his response thereto and thereafter the trial court should not have made any comment or should not draw that piece of statement on record unless and until the same exhibited by the Investigating Officer as the author of the statement. 11. I have scrutinised the statement of PW.9 (the recording officer) and PW.10 (Medical Officer, who examined the PW.12 after he was brought to him for medical treatment). PW.10 corroborated that PW.12 received two injuries as stated by PWs. 2 and 5. Therefore, the statement of PW.10 corroborates the statement of PWs. 12, 2 and 5. PW.11 is the scribe of the FIR. His statement has got little evidentiary value. PW.10 corroborated that PW.12 received two injuries as stated by PWs. 2 and 5. Therefore, the statement of PW.10 corroborates the statement of PWs. 12, 2 and 5. PW.11 is the scribe of the FIR. His statement has got little evidentiary value. PW.13 (the Investigating Officer) has given a description how he conducted the investigation and his statement regarding PW.8 is reproduced hereunder: On 18.10.02 I examined the witness Biplab Das. After that collecting the injury report of the victim I submitted charge sheet against the accused Bhabaranjan Sarkar and Nabaranjan Sarkar showing the accused person absconder. I examined the witness Biplab Das (PW.8) on 18.10.02 in my hand writing. The witness identified Exbt-2 and confirmed it. 12. It is really surprising what the trial court had brought a piece of evidence on record without being demonstrated by the author. For the Investigating Officer, that cannot be a matter of confirmation. This piece of document ought to have been brought in the evidence by him alone. As such, the Exbt.2 document cannot be read in the evidence. On consideration of the entire gamut as revealed from appreciation of the evidence, this court is of the opinion that the assault by the appellant on the PW.12 has been well established beyond any shred of doubt but there is no evidence as to the intention or circumstances which might indicate to the intention of the assault and as such the learned trial court has committed a serious illegality convicting the appellant under Section 307 of the Indian Penal Code. 13. In Om Prakash vs. State of Punjab, as reported in AIR 1961 SC 1782 , the Apex Court held that a person commits an offence under Section 307 when he has an intention to commit murder and in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. The intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression "whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence." The same is meant by the expression "whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder" in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression "by that act" does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time. The word "act" again, does not mean only any particular, specific, instantaneous act of a person, but denotes, according to Section 33 as well a series of acts. 14. In Sarju Prasad vs. State of Bihar, as reported in AIR 1965 SC 843 , the Apex Court held : Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307 IPC cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment. 15. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment. 15. In Hari Singh vs. Sukhbir Singh & Ors., as reported in (1988) 4 SCC 551 , the Apex Court has reiterated the position in regard to Section 307 IPC as follows: On the first question as to acquittal of the accused under Section 307/149 IPC, some significant aspects may be borne in mind. Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is very very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307 IPC. 16. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307 IPC. 16. Similarly, in Sagayam vs. State of Karnataka, as reported in (2000) 4 SCC 454 , the Apex Court has held that to justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission. 17. In State of M.P. VS. Saleem @ Chamaru & Anr., as reported in (2005) 5 SCC 554 , the Apex Court elaborated the requirement to justify conviction under Section 307 IPC and held: 12. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. : (1983) 2 SCC 28 , Girija Shanker v. State of Uttar Pradesh (2004) 3 SCC 793 and R. Parkash v. State of Karnataka : (2004) 9 SCC 348. 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. 18. This court considering the evidence on record is inclined to convert the charge under Section 324 IPC since the offence under Section 307 IPC is cognate to offence under Section 324 IPC and also it carries lesser punishment. 19. 18. This court considering the evidence on record is inclined to convert the charge under Section 324 IPC since the offence under Section 307 IPC is cognate to offence under Section 324 IPC and also it carries lesser punishment. 19. In view of the rival contentions as well as on the basis of the evidence, the offence as established on evidence to have committed by the appellant is converted under Section 324 of the Indian Penal Code. Considering the age of the appellant, who was 19 years old at the time of offence, this Court is of the opinion that the sentence of rigorous imprisonment for two years under Section 324, IPC would be adequate. The appellant is sentenced accordingly. 20. The appeal is partly allowed. It is needless to say that the period of imprisonment as already undergone by the appellant at the pre-trial and the post-trial phase will be set off from the sentence as recorded by this court. 21. Send down the Lower Court Records forthwith.