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2014 DIGILAW 213 (TRI)

Jhunu Das v. State of Tripura

2014-06-06

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, CJ. 1. By means of this appeal, the appellant has challenged the judgment dated 09-04-2010 passed by the learned Additional Sessions Judge, North Tripura, Kamalpur in Case No. S.T. 33 (NT/KMP) of 2009 whereby he convicted the accused of having committed an offence punishable under Section 324 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for 2(two) years and pay fine of Rs. 10,000/- (rupees ten thousand) and in default of payment of fine to undergo simple imprisonment for 6 (six) months. 2. The prosecution case, briefly stated, is that on 24-02-2009 at about 10 p.m. the accused attacked and caused injuries on the person of the prosecutrix with a sharp edged weapon. The name of the prosecutrix is not being disclosed and she is being referred to as "X" since admittedly the prosecutrix had also filed another complaint against the petitioner under Section 376 of the IPC. 3. The accused was charged with having committed offences punishable under Sections 324 and 307 of the IPC. The learned trial Court after evidence acquitted the accused of having committed an attempt to murder the prosecutrix, but convicted the appellant for having caused simple injuries with a dangerous weapon and sentenced him as aforesaid. Hence, this appeal. 4. I have heard Sri B. Deb, learned counsel for the appellant, and Sri Deb has pointed out a large number of flaws in the manner in which the investigation had been carried out. 5. To reiterate the facts, according to the prosecutrix, she was attacked by the accused on 24-02-2009 after 10 p.m. and threatened by him that she should withdraw the rape case which she had filed against the accused. According to her, she was sleeping in her hut but got up at night to answer the call of nature. She lit a hurricane lamp and when she was about to enter her room after urinating, the accused Jhunu Das caught hold of her and dragged her towards the main public road. He threatened her with a sharp cutting weapon and also hit her person and told her to withdraw the rape case, otherwise she will have to face dire consequences. She somehow managed to push away the accused and ran towards the house of Narayan Debnath. She raised a cry and fell into a tank and lost her senses. He threatened her with a sharp cutting weapon and also hit her person and told her to withdraw the rape case, otherwise she will have to face dire consequences. She somehow managed to push away the accused and ran towards the house of Narayan Debnath. She raised a cry and fell into a tank and lost her senses. After four days, she regained her senses at G.B. Hospital. 6. From the evidence on record, it is apparent that whereas the prosecutrix and her mother reside in one hut, her brother and sister-in-law reside in another hut in the same complex. In cross-examination, this witness has stated that she raised a hue and cry when the accused took out a sharp edged weapon but none came to the spot. She also states that the road was at a distance of 10/15 cubits from her gate whereas the distance between her house and the house of Narayan is 200 cubits. Later, her brothers and others rescued her and got her admitted in hospital. According to her, she identified the accused in the light of a streetlight. 7. PW-3, Narayan Debnath, states that the accused is his neighbour. According to him, at about 2-30 a.m. on the date of Kali puja, he and his wife came out and saw the prosecutrix lying near a cement water tank with bleeding injuries on her hand and other parts of the body. He immediately informed PW-2, the brother of the prosecutrix. There is no suggestion put to him that the prosecutrix had not fallen in an injured condition outside his house. The only suggestion put to him is that she may have received injuries by falling on the cement water tank. 8. To the similar effect is the statement of PW-7, Smt. Anita Debnath, wife of PW-3, who also states that when at 2/2-30 a.m. she and her husband got up, they saw the prosecutrix lying near the cement water tank with serious bleeding injuries. Both these witnesses have stated that the prosecutrix was senseless. Thus, what is proved from the statement of these witnesses is that when they got up in the middle of the night, they found the prosecutrix lying on or near the water tank in a senseless condition with injuries on her hand. Both these witnesses have stated that the prosecutrix was senseless. Thus, what is proved from the statement of these witnesses is that when they got up in the middle of the night, they found the prosecutrix lying on or near the water tank in a senseless condition with injuries on her hand. They thereafter called the brother (PW-2) who states that he immediately informed the police and then took the prosecutrix to Kulai Hospital. On the next day, she was taken to the G.B. Hospital. The FIR was lodged on 26-02-2009, two days after the occurrence. 9. Statement of PW-4, the mother, is not very relevant since she was admittedly not there on the date of the occurrence. PW-6 is the wife of PW-2 and her statement is similar to PW-2 but according to her, the prosecutrix only told after she had been discharged from the hospital that the injuries had been caused by the accused. 10. PW-9, S.I. Hiren Debbarma was posted as ASI at Ambassa Police Station at the relevant time. According to him, he was on mobile duty and he saw the prosecutrix with bleeding injuries in the house of PW-3, Narayan Debnath. He then took the prosecutrix to the Kulai Hospital from where she was shifted to G.B. Hospital. In cross-examination, he stated that on hearing cries, he went to the spot and 10 minutes time was required to reach the spot. He did not remember the G.D. entry number. He, however, states that by wireless he informed the Officer-in-Charge of the Police Station that the prosecutrix was lying injured and that she had been assaulted by the accused Jhunu Das. He denied the suggestion that he was told by Narayan that the prosecutrix had suffered injuries by falling on a cement water tank. 11. The police recorded the FIR only on 26-02-2009, but there are two injury reports, one of 24-02-2009 and one of 25-02-2009 in which the FIR number mentioned is 19/09 which is the actual FIR. 12. Sri Deb, learned counsel for the appellant, has brought to my notice the fact that in the injury report issued by Agartala Government Medical College, the P.S. case number is mentioned as 19/09 dated 25-02-2009. With regard to the other injury report, he has relied upon the statement of the witnesses of the judgment. 12. Sri Deb, learned counsel for the appellant, has brought to my notice the fact that in the injury report issued by Agartala Government Medical College, the P.S. case number is mentioned as 19/09 dated 25-02-2009. With regard to the other injury report, he has relied upon the statement of the witnesses of the judgment. In view of these submissions of Sri Deb, on 24-03-2014 this Court had passed the following orders:- In this case learned counsel for the appellant has pointed us so many discrepancies. The appellant was charged with having committed offences punishable under Section 324 of IPC read with Section 307 IPC on the allegation that on 24.02.2009 at about 2.30 am the accused had voluntarily caused hurt to Smt. Jhunu Das, the complainant and that these injuries could have caused death and, therefore, he was also guilty of having committed an offence punishable under Section 307 IPC. Mr. B. Deb, learned counsel for the appellant, points out from the statement of the witnesses, that the injured was immediately taken to the hospital at Kulai by PW-9, a police official and according to this police official he had reported the matter to the police station vide wireless. Sri Deb, also points out from the evidence on record that there is material to show that the doctor at the Kulai hospital had also referred the matter to the police on the basis of which FIR was lodged. Similarly he points out that after the injured was brought to the GBP hospital at Agartala similar report was made. In both the injury reports, the reference is to case No. 19 of 2009 of Ambassa Police Station dated 24.02.2009 and 25.2.2009 respectively. Sri Deb, has also drawn my attention to the FIR in which the date is 26.02.2009. He, therefore, points out that the prosecution must explain why there are three different dates of the FIR. (1) 24.02.2009 when the injured was treated at Kulai hospital, (2) 25.02.2009 when the injured was initially taken for treatment at GBP hospital and (3) 26.02.2009 when the FIR was actually lodged. This is a serious issue which raises fundamental issues with regard to the functioning of the police in the State of Tripura. (1) 24.02.2009 when the injured was treated at Kulai hospital, (2) 25.02.2009 when the injured was initially taken for treatment at GBP hospital and (3) 26.02.2009 when the FIR was actually lodged. This is a serious issue which raises fundamental issues with regard to the functioning of the police in the State of Tripura. In the present case, admittedly the injured was taken to the hospital by the police official and according to this police official he had made a complaint to the police station. It has also come in his evidence that the names of certain persons who allegedly assaulted the injured were also disclosed to him at that time. Therefore, a cognizable offence had been disclosed and the names of the offenders had also been disclosed. The question that arises is, why was the FIR not recorded immediately and why was it recorded two days later on 26.02.2009. Therefore, exercising my powers under Section 311 of Cr. P.C., I direct that S.I. Hiren Debbarma (PW-9) and Ranjit Palit (PW-11) should appear before this Court to explain why there are three different dates with regard to the same FIR. For this purpose, the matter be listed on 02.05.2014. The Registrar General shall supply a copy of this order to the learned APP who shall ensure that these two persons are present on the next date. 13. When S.I. Hiren Debbarma and Ranjit Palit appeared in Court, S.I. Ranjit Palit stated that he was not the Officer-in-Charge and at the relevant time, charge of the Police Station was held by one Sri Rajib Panchar, Probationary IPS Officer. Hiren Debbarma stated that he had taken the victim to the hospital and had also informed the Officer-in-Charge of the Police Station by wireless and he was not required to do anything else. 14. The manner in which the police has carried out the investigation shows a totally casual approach to the case. We are dealing here with a case where immediately after the occurrence, the injured prosecutrix had been shifted to hospital. Without going into the question as to whether she had named the accused or not at that stage, the least that was required was that an FIR should have been recorded. The injuries on her person had been caused by a sharp edged weapon and they disclosed the commission of a cognizable offence. Without going into the question as to whether she had named the accused or not at that stage, the least that was required was that an FIR should have been recorded. The injuries on her person had been caused by a sharp edged weapon and they disclosed the commission of a cognizable offence. In this behalf, reference may be made to a recent Constitution Bench judgment of the Apex Court in Lalita Kumari v. Govt. of U.P. & Ors. AIR 2014 SC 187 ] wherein Hon'ble Justice P. Sathasivam speaking for the Court held as follows:- 40. The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence. xxx xxx xxx 42. It is relevant to mention that the object of using the word "shall" in the context of Section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law. 43. Investigation of offences and prosecution of offenders are the duties of the State. For "cognizable offences", a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality. 44. Therefore, the context in which the word "shall" appears in Section 154(1) of the Code, the object for which it has been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors clearly show that the word "shall" used in Section 154(1) needs to be given its ordinary meaning of being of "mandatory" character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction. 45. In view of the above, the use of the word 'shall' coupled with the Scheme of the Act lead to the conclusion that the legislators intended that if an information relating to commission of a cognizable offence is given, then it would mandatorily be registered by the officer in-charge of the police station. Reading 'shall' as 'may', as contended by some counsel, would be against the Scheme of the Code. Section 154 of the Code should be strictly construed and the word 'shall' should be given its natural meaning. The golden rule of interpretation can be given a go-by only in cases where the language of the section is ambiguous and/or leads to an absurdity. 46. In view of the above, we are satisfied that Section 154(1) of the Code does not have any ambiguity in this regard and is in clear terms. It is relevant to mention that Section 39 of the Code casts a statutory duty on every person to inform about commission of certain offences which includes offences covered by Sections 121 to 126, 302, 64A, 382, 392 etc., of the IPC. It would be incongruous to suggest that though it is the duty of every citizen to inform about commission of an offence, but it is not obligatory on the officer-in-charge of a Police Station to register the report. The word 'shall' occurring in Section 39 of the Code has to be given the same meaning as the word 'shall' occurring in Section 154(1) of the Code. 15. Thereafter, the Apex Court held as follows:- 110. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. 15. Thereafter, the Apex Court held as follows:- 110. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR. 16. The conclusion/directions of the Apex Court are contained in para-111 which reads as follows:- Conclusion/Directions: 111. In view of the aforesaid discussion, we hold: (i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. (viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. 17. All these directions have already been ordered to be circulated by the Apex Court, but since in the State of Tripura it seems to have no effect on the police, I direct that these be circulated again and be followed in letter and spirit. 18. One of the first judgments which this Court passed on the establishment of the separate High Court of Tripura was Crl. A(J) No. 04 of 2010 (Sri Mrinal Bhowmik and another vs. The State of Tripura) wherein this Court had clearly directed that in all cases where a cognizable offence is disclosed, the police should record the FIR immediately. 18. One of the first judgments which this Court passed on the establishment of the separate High Court of Tripura was Crl. A(J) No. 04 of 2010 (Sri Mrinal Bhowmik and another vs. The State of Tripura) wherein this Court had clearly directed that in all cases where a cognizable offence is disclosed, the police should record the FIR immediately. The Court had issued the following directions:- [i] As soon as a person is brought to the hospital in a condition wherein it is apparent that he or she has suffered injuries which may be the result of use of violence, whether accidental or by the person himself or caused by any other person, it shall be the duty of the doctor to report the matter immediately to the police. [ii] We make it clear that treatment of the patient shall not be delayed to await the police investigation and the doctor is duty bound to first treat the patient but must simultaneously make arrangements to inform the police. [iii] Once the information is given to the police, the police official must visit the hospital and ascertain from the doctor whether the victim is in a condition to make a statement or not. [iv] If the victim is not in a position to make any statement then the police official should record the statement and as far as possible try to associate independent witnesses for recording their statement. In case the victim is a lady as far as possible one lady police official must be present when the statement is recorded. [v] The statement should be recorded in the local language and dialect of the victim and translation can be made later on. [vi] If the statement so recorded discloses the commission of a cognizable offence the FIR shall be recorded immediately without waiting for any formal written complaint. [vii] In case the doctor declares a person unfit to make a statement then the police official should make an effort to repeatedly visit the hospital and find out from the doctor when the patient is fit to make the statement. [vii] In case the doctor declares a person unfit to make a statement then the police official should make an effort to repeatedly visit the hospital and find out from the doctor when the patient is fit to make the statement. [viii] Even the medical officer should maintain a record that a request for record the statement of the victim has been made and as soon as the victim is in a fit condition to make the medical officer should inform the concerned police official about this fact and thereafter the police official can record the statement of the victim. [ix] In cases of dying declaration related to serious offences like the present one, the police official if time is available, must make an effort to associate a Judicial or Executive Magistrate with the recording of the statement. 19. These directions are being reiterated once more. A copy of this judgment shall be sent to the Chief Secretary as well as the Director General of Police who shall ensure that these directions are complied with by all police officials in the State in letter and spirit, failing which this Court will not hesitate to take very serious action against the police officials who do not follow these directions. 20. Recording of an FIR is necessary as soon as a cognizable offence is disclosed. The police official has no jurisdiction whatsoever to make an entry only in the G.D. entry register and not record an FIR. Directions are hereby given to all police officials in the State that in case they do not record an FIR when they come to know of a cognizable offence, then serious disciplinary action shall be taken against them and if necessary, action under the Contempt of Courts Act shall also be taken against them for violating the judgment of the Apex Court and of this Court. 21. Unfortunately, in the State of Tripura the police officials are always looking over their shoulders and seeking approval of some authorities before lodging an FIR. That is not the purpose of the Code of Criminal Procedure. The police has to be independent of any extraneous influence whatsoever. The Apex Court has now given directions which have been quoted hereinabove and the police officials must record the FIRs as soon as an offence is disclosed and they should not wait for the victim to lodge the complaint. The police has to be independent of any extraneous influence whatsoever. The Apex Court has now given directions which have been quoted hereinabove and the police officials must record the FIRs as soon as an offence is disclosed and they should not wait for the victim to lodge the complaint. This unfortunate and totally illegal practice which has been followed for many years in Tripura must come to an end immediately. 22. Coming to the facts and circumstances of the present case, the police officials reached the spot within 10 to 15 minutes of the victim being found. Obviously, the police was informed either by the brother of the victim or by Sri Narayan Debnath about the occurrence. Once the police official reached the spot and took the victim to the hospital, then a duty was cast upon the police official to have immediately lodged a complaint. According to Sri Hiren Debbarma, he had immediately informed his superior officials by wireless about such occurrence. No G.D. entry or FIR has been produced on record to show that such information was recorded. This, to say the least, is an extremely sad state of affairs. The matter does not end here. In the injury reports which were prepared on 24-02-2009 and 25-02-2009, the case number is given as 19/09 and the FIR was actually lodged only on 26-02-2009. Therefore, it is obvious that this mention of the case number on the injury report was made at a later stage, but the date entered is the same as that of the injury report. These problems will always occur when FIR is not lodged immediately on time and the police wait for the victim to file a written complaint. In the present case, the police waited for the brother of the victim to file the complaint and only thereafter the FIR was lodged. Therefore, the manner in which the FIR was lodged leaves much to be desired. However, this does not mean that the accused has to be acquitted straightaway. All that this means is that the evidence of the prosecution must be scrutinized with greater care and caution. 23. In the present case, not only was the FIR not lodged properly, but even the hand sketch map of the place of occurrence was not prepared properly. The sketch map was not prepared immediately on 24-02-2009, but on 26-02-2009. All that this means is that the evidence of the prosecution must be scrutinized with greater care and caution. 23. In the present case, not only was the FIR not lodged properly, but even the hand sketch map of the place of occurrence was not prepared properly. The sketch map was not prepared immediately on 24-02-2009, but on 26-02-2009. The place of occurrence was from the house to the public road and that has not even been sketched out in the hand sketch map and what has been sketched out is the house of Narayan Debnath which is the place where the prosecutrix ran for refuge. 24. In case, the police is remiss or negligent in the performance of these duties, the accused is not entitled to acquittal only on that ground. In case, the statement of the victim and other witnesses is believable without the evidence of the police officials being relied upon, then conviction can be based even on the testimony of the police officials. 25. The main issue which arises is whether the statement of the prosecutrix is believable or not. Admittedly, she had filed a case alleging that she had been raped by the present accused and one of the grounds taken by the accused is that due to these inimical relations the statement of the prosecutrix should not be relied upon. 26. In the rape case, the accused was convicted but in appeal this Court acquitted the accused of having committed an offence punishable under Section 376 of the IPC but convicted him for having committed an offence punishable under Section 354 of the IPC and that judgment has become final. 27. Enmity is a double edged sword. It cuts both ways. No doubt, it can be a ground to falsely implicate a person, but it can also be the motive for committing an offence. In the present case, the statement of the prosecutrix has been supported by two independent witnesses, Narayan Debnath and his wife to the extent that they found her with injuries lying outside their house in an unconscious condition. Either those injuries were caused by some person or they could have been caused due to a fall. Why would the prosecutrix go to the house of Narayan Debnath in the middle of the night of her own accord? Either those injuries were caused by some person or they could have been caused due to a fall. Why would the prosecutrix go to the house of Narayan Debnath in the middle of the night of her own accord? Her statement that she was assaulted and threatened by the accused and thereafter she ran away from the clutches of the accused appears to be more believable. It has been urged that the prosecutrix in her statement has stated that she had to cross three other houses before reaching the house of Narayan Debnath. In my view, that is of no consequence. In the middle of the night, people may or may not get up. Some people sleep deeply and may not even wake up on hearing a cry. A young girl who has been attacked will just run helter-skelter without any particular aim. One can imagine the situation of the prosecutrix who ran away from the clutches of the accused. She could not have decided where she was going, but she only decided to seek refuge in a particular house. 28. The story of the prosecutrix with regard to the injuries is also corroborated by the medical evidence as well as the statement of PW-9, Hiren Debbarma, the police official, who took her to the hospital at Kulai. From the evidence it is clear that the prosecutrix suffered injuries. She became unconscious, she was taken to the hospital and received treatment in the hospital. The injuries are simple in nature, but caused by a sharp cutting weapon. The injuries are not self-inflicted. The defence has taken a plea that the injuries could be caused by a fall on the gamla (water tank) but the question that arises is why would the prosecutrix go to the house of Narayan Debnath at 2-30 at night without any rhyme or reason. Something must have driven her there and, therefore, her version that she was attacked by the accused appears to be correct and is accepted to be such. 29. Therefore, I find no merit in the appeal which is accordingly rejected. 30. As far as sentence is concerned, I have no sympathy for the accused. Here is a person who once molested a woman and then after being granted bail he comes out and threatens the woman that she should not continue with the case against him. Therefore, the appeal is dismissed. 31. 30. As far as sentence is concerned, I have no sympathy for the accused. Here is a person who once molested a woman and then after being granted bail he comes out and threatens the woman that she should not continue with the case against him. Therefore, the appeal is dismissed. 31. Send down the lower court records forthwith.