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2014 DIGILAW 193 (TRI)

Lil Mohan Shil v. State of Tripura

2014-05-27

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- This petition for revision filed under Section 401 read with Section 397 of the Cr.P.C. has questioned the order of acquittal dated 28.02.2007 delivered in G.R. case No. 39/1997 by the Additional Chief Judicial Magistrate, West Tripura, Agartala. This revision has been filed before the legislative change made by way of engrafting proviso to Section 372 of the Cr.P.C. creating the right of the victim to appeal against the order of acquittal. 2. The petitioner herein is the informant at whose instance Sidhai P.S. case No. 3/97 was registered and taken up for investigation. The petitioner had filed the First Information Report to the Officer-in-Charge Sidhai Police Station disclosing inhuman physical torture on his son namely, Rana Shil (PW-15). The petitioner (PW-1) in his written information has stated that he had lodged information to the East Agartala Police Station on 24.09.1996 reporting that one Smt. Dipa Paul had kidnapped his minor son but the police did not take any action. On 24.09.1996, his son was arrested by the Sidhai Police Station. After arrest, his son was brutally assaulted by two police officers namely, Shyma Prasad Biswas and Narancy Ch. Choudhury "keeping him in police lockup with lathi" and "by kicks and blows". As a result, his son received grievous injuries on his body. His right arm sustained fracture. His son was taken to Mohanpur Primary Health Centre in the evening of 24.09.1996. Later on, he was referred to the G.B.P. hospital. The attending Doctors in the G.B.P. hospital had informed PW-1 that ’there are fracture in the right and crack in collarbone’. He had learnt about the assault in detail from his son (PW-15). As he was engaged in attending his son he could not file the information on 24.09.1996 as PW-1 has explained in the F.I.R. However, he had filed the information on 27.09.1996 with a copy to the Superintendent of Police, West Tripura, Agartala. It is apparent from the records that PW-1 had filed a petition under Article 226 of the Constitution of India for writ of mandamus for registering the said F.I.R. (Exbt. 1) being Civil Rule No. 5 of 1996. It is apparent from the records that PW-1 had filed a petition under Article 226 of the Constitution of India for writ of mandamus for registering the said F.I.R. (Exbt. 1) being Civil Rule No. 5 of 1996. By an interim order dated 08.01.1997, the then Gauhati High Court, Agartala Bench had directed the Officer-in-Charge to start the investigation after registering the case inasmuch as in the counter affidavit, the respondent No. 1, the Officer-in-Charge of the Sidhai Police Station had admitted his mistake by stating that since one of the officers, accused in that case was superior in rank, he was confused whether he had the authority to register a case against a superior officer in view of Section 197 of the Cr.P.C. According to him, on proper legal advise, he had realized that provisions of Section 197 cannot create a legal bar. Be that as it may, on completion of investigation charge sheet was filed against the accused persons namely, Shyama Prasad Biswas, Inspector of Police and Narayan Ch. Choudhury, Sub Inspector of police of that Police Station. 3. The Additional Chief Judicial Magistrate, West Tripura, Agartala had framed the charge against both the accused persons under Section 325 of the I.P.C. to which the accused pleaded total innocence and claimed to face the trial. 4. In order to substantiate the charge, the prosecution has adduced as many as 22(twenty two) witnesses including Dr. Pandab Ch. Paul (PW-18) and Dr. Yudhisthir Das (PW-19), the victim Rana Shil (PW-15) and Smt. Dipa Paul (PW-16) who was alleged of kidnapping PW-15 but who later married PW-15. From the prosecution, 4(four) documents Exbt. 1 to Exbt. 4 have been introduced in the evidence. After examining the accused persons under Section 313 of the Cr.P.C., the Additional Chief Judicial Magistrate, West Tripura, Agartala by the judgment and order dated 28.02.2007 acquitted them holding that two different versions, equally strong, have emerged in the evidence. The said judgment and order delivered in case No. G.R. 39 of 1997 is under challenge in this revision petition. 5. Mr. B.N. Majumder, learned counsel appearing for the petitioner has submitted that the Additional Chief Judicial Magistrate, West Tripura, Agartala has perversely appreciated the evidence resulting in that two versions. He has urged this Court to re-appreciate the evidence. Mr. 5. Mr. B.N. Majumder, learned counsel appearing for the petitioner has submitted that the Additional Chief Judicial Magistrate, West Tripura, Agartala has perversely appreciated the evidence resulting in that two versions. He has urged this Court to re-appreciate the evidence. Mr. Majumder, learned counsel has emphatically stated that if the testimonies of PW-15, the victim, PW-1, the informant, PW-9 Sri Digendra Biswas, PW-12 Sri Chandan Biswas, PW-13 Sri Krishnapada Paul, PW-14, Sri Harimohan Debnath, PW-16 Smt. Dipa Paul, PW-18 Dr. Pandab Ch. Paul and PW-19, Dr. Yudhisthir Das are read conjointly, without any amount of doubt, it would imminently surface that there cannot be two versions, but the version that PW-15 was brutally assaulted by the accused persons in the police station and later on, the said victim was taken to Mohanpur Primary Health Centre where it had been reported that injuries were from assault. 6. Mr. Majumder, learned counsel appearing for the petitioner has however admitted that a version has faintly surfaced in the evidence that the victim had scuffled with the police officers at the time of his arrest and he had jumped from the police vehicle and thus the victim received the injuries. Mr. Majumder, learned counsel to overcome the ’orthodox principle of two versions’ has relied on a decision of apex court in Dr. Mohammad Khalil Chisti vs. State of Rajasthan and others, reported in 2013 AIR SCW 115. The passage in Para-32 has been relied in particular for the petitioner. For appreciation, the said passage is reproduced hereunder: The analysis of the materials clearly show that two versions of the incident adduced by the prosecution are discrepant with each other. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with the individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts. 7. Mr. Majumder, learned counsel having placed reliance on Mohammad Khalil Chisti has contended that even in the context of principles of two versions if it is found that the specific role or part can be attributed to each of the accused persons, each accused persons can be fastened with individual liability. For emergence of two versions the accused cannot be allowed to go scot free. 8. Mr. A. Ghosh, learned P.P. appearing for the State has submitted that the impugned judgment is well reasoned and based on the precedents. He has also submitted that after the accused persons are acquitted from the charge presumption of innocence gets further consolidated. Unless serious perversity in appreciating the evidence is located, this Court would not unsettle the judgment. In this case no such perversity has emerged. 9. Mr. H. Debnath, learned counsel appearing for the accused respondents No. 2 & 3 has adopted the submission of the learned Public Prosecutor but supplemented by contending that PWs 4, 5, 6, 7, 8, 18 & 19 have supported the defence version that PW-15 received the injuries while for escaping the arrest he jumped from the police vehicle. Mr. Debnath, learned counsel has submitted that even PWs 18 & 19 have opined that if someone jumped from the police vehicle and fell on the road, such injuries as received by PW-15 are the possibility. Mr. Debnath, learned counsel has further pointed out that the prosecution did not declare those witnesses hostile who did not support the prosecution version. Even those witnesses were not re-examined. Thus the prosecution cannot now say that, that part of the testimony cannot be given any credit. Mr. Debnath, learned counsel has further pointed out that the testimonies, as relied by Mr. B.N. Majumder, learned counsel appearing for the petitioner, are also dented by contradictions as brought out by the defence. The testimonies by which the accused persons are suspected of assaulting PW-15 are mostly the improved versions. Thus, there cannot be any reason to interfere with the impugned judgment. 10. For purpose of appreciating the rival contentions of the learned counsel for the parties, a brief survey of the evidence appears necessary. The testimonies by which the accused persons are suspected of assaulting PW-15 are mostly the improved versions. Thus, there cannot be any reason to interfere with the impugned judgment. 10. For purpose of appreciating the rival contentions of the learned counsel for the parties, a brief survey of the evidence appears necessary. PW-1, Lilmohan Shil has stated in the F.I.R. that he came to know the occurrence from PW-15. In his statement in the court he has stated that on 25.09.1996 he got information from his father-in-law’s house situated at Sidhai Mohanpur that his son was seriously injured and admitted in the G.B. hospital and he has also indicated that he learnt from Sri Jatindra Bhowmik, PW-17 that his son was beaten by the Circle Inspector, namely, Shyama Prasad Biswas and Sub-Inspector namely, Narayan Ch. Choudhury of Sidhai Police Station. Later on, he came to know about the incident from his son. In the cross-examination he has admitted that ’I have not mentioned in the written complaint that I came to learn from my brother-in-law Jatindra Bhowmik that my son and said Dipa Paul fetched to Sidhai Police Station by S.I. Shri Narayan Choudhury and the brother of Smt. Dipa Paul and maternal uncle of Dipa were in the Police Station and they have taken Dipa Paul. My son was beaten by S.I. of that Police Station severely. After assaulting, they brought my son to Mohanpur hospital from where my son was referred to G.B. Hospital, Agartala for treatment. I have not stated in my written complaint that I also seen the fracture collarbone and right hand of my son Rana Shil. I have not stated in my complaint that on 25-09-96 I saw my son in the G.B. Hospital in such a condition that he cannot speak but he has the sense." 11. PW-2, Arati Bala Banik has disclosed that she heard that PW-15 was beaten in the Police Station. But in the cross-examination she has stated that the Circle Inspector of police was not present when PW-15 was arrested and taken by the other accused, Narayan Ch. Choudhury. 12. PW-3, Smt. Nirmala Bhowmik, grandmother of PW-15 has stated that Swapan Singh (not examined) Krishnadhan Pal (PW-13) and Haradhan Debnath (PW-14) had informed her that PW-15 was physically assaulted and beaten in the Police Station by the Circle Inspector of Sidhai Police Station. Choudhury. 12. PW-3, Smt. Nirmala Bhowmik, grandmother of PW-15 has stated that Swapan Singh (not examined) Krishnadhan Pal (PW-13) and Haradhan Debnath (PW-14) had informed her that PW-15 was physically assaulted and beaten in the Police Station by the Circle Inspector of Sidhai Police Station. But in the cross-examination she has admitted that she did not state to the Investigating Officer that Swapan Singh, Krishnadhan Pal and Haradhan Debnath had reported her that a C.I. of the police station namely, Shyama Prasad Biswas had beaten PW-15. 13. PW-4 namely, Sri Chintaharan Debnath was not examined by the prosecution but was cross-examined by the defence. He has categorically asserted that "PW-15 jumped up from our vehicle and lacerated himself with road surface and received injuries." He has further stated that on the pressure of the relatives, PW-15 was taken to the G.B. hospital. That apart, he has stated that Sidhai Police Station is situated in the west side of the Agartala Simna Road. The police Station has boundary wall of 5-6 cubit height. After the boundary wall there is a garden inside the police station where there are big trees. At the end of the garden there is sentry wall, again of 5-6 cubit height, thereafter, the office of the police station and at the end the lockup. He has categorically asserted that the lockup is not visible from office room or from the road. He was not re-examined or declared hostile by the prosecution. 14. PW-5, is the police officer, who investigated the case initially filed by PW-1 against PW-16, Smt. Dipa Paul. He has also asserted that he came to learn that there was a scuffling between the police and the accused, PW-15 and while was boarding the vehicle he received injuries. The defence did not cross-examine for obvious reason. 15. PW-6, Ajit Majumder is the uncle of PW-16 who has stated that while the police was about to arrest PW-15, the resistance was occurred by PW-15 and there broke out a scuffle. In the cross-examination he has stated that PW-15 had jumped from the vehicle and got bodily pain. 16. PW-7, Sri Debasish Paul, a brother of PW-16 has confirmed that the maternal uncle PW-6 had accompanied him and recovered his sister PW-16. In the cross-examination he has stated that PW-15 had jumped from the vehicle and got bodily pain. 16. PW-7, Sri Debasish Paul, a brother of PW-16 has confirmed that the maternal uncle PW-6 had accompanied him and recovered his sister PW-16. In the course of deposition, he has stated, during his cross-examination, that "at the time of detention of the boy Rana Shil, the relatives of Rana Shil resisted the police. There was a scuffling between the police and relatives of Rana Shil. Rana Shil jumped from the police vehicle and got injuries." There was also scuffling between Rana Shil and police for which Rana received pain and injuries." This witness was also not re-examined by the prosecution and not declared hostile. 17. PW-8, Manoranjan Debnath, a constable of the police station in his cross-examination has stated that at the time of detaining PW-15 there was a scuffle and PW-15 got some injuries. He has categorically stated that "the boy was tried to escape from jumping from our vehicle and for which he also received injuries on the different part of his persons." 18. PW-9, Sri Digendra Biswas has stated that he heard crying of Rana Shil inside the police station and saw that the C.I. had been beating Rana Shil (PW-15) inside the police station. However, in the cross-examination when he was confronted with his previous statement, it was found that there was no such statement. Later on, PW-21, Uttam Kr. Majumder, one of the Investigating Officers has confirmed that PW-9 never stated to him that he saw that PW-15 was being beaten by the C.I. 19. PW-10 Sri Bijoy Deb is a hearsay witness. He could not disclose the names of the persons from whom he had heard that PW-15 was being beaten by the C.I. in the police station. But on confrontation, no such statement was also found there. 20. PW-11, Narayan Saha, a Sub-Inspector of Police. In the cross-examination, he has stated that the C.I. was not in the police station. He has further stated that PW-15 has stated him that he received some injuries at the time of scuffle. This witness has categorically stated that the police station is not visible from the road due to intervention, garden and sentry wall. 21. PW-12, Sri Chandan Biswas has stated that the C.I. was giving two/three blows by a roller to PW-15. He has further stated that PW-15 has stated him that he received some injuries at the time of scuffle. This witness has categorically stated that the police station is not visible from the road due to intervention, garden and sentry wall. 21. PW-12, Sri Chandan Biswas has stated that the C.I. was giving two/three blows by a roller to PW-15. But such statement was not available in his previous statement recorded by the police during investigation. 22. PW-13, Krishnadhan Paul did not corroborate the statement of PW-3. But he has stated that he saw the C.I. beating PW-15. Later on, at the instance of the police, the gathering was dispersed. However, he saw Rana Shil in the G.B.P. hospital. 23. PW-14, Harimohan Debnath @ Haridan is a hearsay witness. He did not disclose the names of the persons from whom he heard that PW-15 was being beaten inside the police station. But he has stated that he heard the cry of PW-15 but that particular statement was not available in his previous statement recorded by the police during the investigation. 24. PW-15, Rana Shil is the principal witness who has stated that after eloping with PW-16, he married her and they were chased and arrested by the police. Later on, Dipa (PW-16) was handed over to her brother. For purpose of appreciation, some parts of his deposition are required to be extracted. PW-15 has stated ’the elder brother of Dipa and maternal uncle of Dipa accompanied police personnel. Then police at Sidhai P.S. handed over Dipa Pal against her will to her elder brother and maternal uncle of Dipa Pal. Then C.I. Shyamapada Biswas beaten me by lathi. He has beaten in different parts of my body. After while, ASI Narayan Ch. Chowdhury beaten me by lathi and slapped me. Due to assault, I lost my sense. After regaining my sense I found myself in the police lockup. Then I was brought in the office room. After while, I again lost my sense due to agony and acute pain. After regaining my sense I myself found that I am in the G.B. hospital." He has further stated that he was in the hospital for 27/28 days and he was beaten in the office room of the said police station which is visible from the road. After while, I again lost my sense due to agony and acute pain. After regaining my sense I myself found that I am in the G.B. hospital." He has further stated that he was in the hospital for 27/28 days and he was beaten in the office room of the said police station which is visible from the road. In the cross-examination he stood the brunt of the cross-examination but PW-16 Dipa Paul did not corroborate the statement of PW-15 and she has stated that the police had apprehended them and brought them into the police station. At Sidhai police station, Shyama Prasad Biswas and Narayan Chowdhury tortured her and forcefully erased vermilion from her forehead and had broken her conch bungles. Shyama Prasad Biswas and Narayan Chowdhury, two accused persons herein started to beat Rana Shil inside the Police Station in front of her and thereafter, they forcibly handed over her to her elder brother and maternal uncle. In the cross-examination, she has stated that "I cannot tell whether I have told Darogababu that Shyama Prasad Biswas and Narayan Chowdhury had beaten Rana Shil inside the P.S. in the inside room and I have witnessed his beating." It has been confirmed that no such statement was made by her to the Investigating Officer. Apart that, PW-15 has stated that after PW-16 was handed over to her elder brother and maternal uncle, the accused persons started beating him. 25. PW-17, Jatindra Chandra Bhowmik is the maternal uncle of PW-15. In his house PWs 15 and 16 had taken shelter. Having information that PW-15 was being beaten by the C.I. of Sidhai Police Station, he arrived at in front of the Sidhai Police Station. Bijoy Deb and Swapan Singh had informed him. When he entered into the Police Station, he found PW-15 lying in a senseless condition. On his request, the police made arrangement for his treatment. When he wanted to take a photograph of his nephew inside the police station, the police did not permit to take the photograph. He nowhere in his previous statement he stated that the accused police officers were beating PW-15. 26. PW-18, Dr. Pandab Ch. On his request, the police made arrangement for his treatment. When he wanted to take a photograph of his nephew inside the police station, the police did not permit to take the photograph. He nowhere in his previous statement he stated that the accused police officers were beating PW-15. 26. PW-18, Dr. Pandab Ch. Paul, one of the medical officers who treated the injured PW-15 has stated that PW-15 was admitted through the Emergency Ward with history of assault and found the following injuries: (i) A simple fracture in the neck of right hand 2nd metacarpal. (ii) Multiple linear bruise 18" long in the back extending left shoulder to the right hand wrist. (iii) Linear bruise over the left forearm 6" long. (iv) Bruise on right eye 4" long. (v) Stretches on left lower eye lid. (vi) Linear bruise 4" long on the left leg. According to him, the fracture injury was grievous in nature which was caused by blunt object. He brought in the evidence the injury report (Exbt. 2) but in the cross-examination he has stated that ’the injuries aforesaid may be sustained in the scuffling and if a person while trying to escape from a police vehicle falls on the road. 27. PW-19, Dr. Yudhisthir Das who examined PW-15 at Mohanpur P.H.C. has also given the description of the injuries including the swelling over right palm, tenderness and abrasion over right wrist area. He had also found 4(four) reddish area on the forearm of the right side. He found another black mark over the right elbow with acute tenderness. There was tenderness with acute pain over the right shoulder region with swelling. He also found 5(five) numbers of long reddish area over right thigh and swelling over right foot and according to him, those injuries were caused by blunt object like lathi. The injuries were grievous in nature. He has also opined that "the fracture injury can be caused by falling from a jeep. The swelling and abrasion can be caused due to direct contact with any hard substance. It is not a fact that no person complained me regarding assault injury in respect of the injured." 28. PW-20, Sri Dilip Kr. Guha, who has stated that under misconception initially he did not register the First Information Report, had started the investigation at the intervention of the Superintendent of Police. It is not a fact that no person complained me regarding assault injury in respect of the injured." 28. PW-20, Sri Dilip Kr. Guha, who has stated that under misconception initially he did not register the First Information Report, had started the investigation at the intervention of the Superintendent of Police. Thereafter, the investigation was transferred to the Sub-Divisional Police Officer (PW-21). But he has stated that the Ejahar was not submitted by PW-1 but by one advocate D. Guha. 29. PW-21, the Investigating Officer who investigated the entire matter narrated briefly how he recorded the statements and collected the injury reports. In the cross-examination, he has confirmed that PW-3 did not state to him that she was present while the police was taking PW-15 to their custody. He has also stated that PW-9 did not tell him that he heard cries of Rana Shil inside the Police Station. PW-10 did not tell him that he had come to learn from TSR personnel that PW-15 was being beaten inside the Police Station. In the same vain, he has stated that PW-14 had not also stated to him that he heard cry of Rana Shil inside the Police Station. He has also confirmed that PW-16 did not tell him that the accused persons had beaten Rana inside the Police Station in her presence. PW-21 was however, recross-examined and he had confirmed that the relevant G.D. was available in the relevant case record. The latter part of the investigation was handled by PW-22, Sri Chandan Chakraborty, who has merely stated that after perusing the records as collected by PW-21, he had submitted the charge sheet No. 76 dated 30.11.1999 as there were sufficient materials of committing offence under Section 325 of the I.P.C. against the accused persons. 30. From a fresh assessment of the evidence, led by the prosecution, it has surfaced that the prosecution did not cross-examine those PWs, who have introduced the version that PW-15 had received the injuries while offering resistance to the police officers at the time of his arrest and he had jumped from the vehicle for escape. The law is well settled that the prosecution cannot dispute that part of the fact for which the witnesses were not confronted by the prosecution on that aspect of the matter. The law is well settled that the prosecution cannot dispute that part of the fact for which the witnesses were not confronted by the prosecution on that aspect of the matter. No doubt the prosecution has made endeavour to establish that PW-15 was assaulted by the accused persons in the Police Station causing grievous hurt. Even the medical officers, who examined the prosecution, have lent some credence to the said version of the prosecution. But two versions have eminently surfaced in the evidence. One version favours the innocence of the accused persons, when the other version does not apposite. The benefit therefore, would go in favour of the accused persons. In State of U.P. vs. Veeram Singh and another, reported in 2007(6) Supreme 164 , the apex court has observed as under: The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from is no less than from the conviction of an innocent. Thus, there is no infirmity in the finding returned by the trial court and no interference is called for. 31. In Mohammad Khalil Chisti as referred by Mr. Majumder, learned counsel for the petitioner, what the apex court has observed in the case of right to private defence cannot be applied in the present case inasmuch as a plea of right to private defence cannot be based on surmise and speculation. While considering whether the right of private defence was available to an accused, it is not relevant whether he might have a chance to inflict severe or mortal injury on the aggressor. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities all are relevant factors to be considered. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities all are relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private of defence, is a question of fact to be determined on the fact and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case, the court can consider it, even if the accused has not taken such plea, the benefit can be extended based on the materials on record. In Mohammad Khalil Chisti some of the accused adverted, by admitting certain overt acts, the plea of right to private defence. In that backdrop, the apex court rejecting such plea of private defence held that each accused can be fastened with individual liability taking into consideration the specific role and part attributed to the each of the accused. This case is circumstanced so differently that the principles as highlighted in Mohammad Khalil Chisti by the apex court can not have any manner of application. In the result, this petition fails and accordingly, the same is dismissed. Send down the LCRs forthwith.