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2014 DIGILAW 25 (TRI)

Shanibrata Roy v. State of Tripura

2014-01-22

DEEPAK GUPTA, U.B.SAHA

body2014
JUDGMENT Deepak Gupta, C.J.:- This appeal by the convicted accused is directed against the judgment dated 20-03-2010 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Case No. Sessions Trial 67(WT/A) of 2006 whereby he convicted the appellant-accused of having committed an offence punishable under Section302 read with Section 148 of the Indian Penal Code (IPC) and sentenced him to suffer life imprisonment and to pay a fine of Rs. 5,000/-, in default thereof to suffer rigorous imprisonment for a further period of 3 (three) months for the offence committed under Section 302 IPC and he was also sentenced to undergo rigorous imprisonment for 1 (one) year for the offence committed under Section 148 IPC and both the sentences were ordered to run concurrently. The prosecution story, in brief, is that PW-5, Smti. Baby Rani Roy, is the widow of Lt. Sri Bhajan Roy. The accused persons namely Nanda Dulal Roy and Chandra Sekhar Roy are the brothers of Lt. Sri Bhajan Roy. Smti. Bina Rani Roy and Smti. Basanti Rani Roy were the wives of these two persons. Sri Shanibrata Roy alias Falu Roy is the nephew of deceased Bhajan Roy. According to the prosecution, after the death of Bhajan Roy, the land of the brothers was partitioned and the land which fell to the share of Bhajan Roy was handed over to Smti. Baby Rani Roy. 2. The case of the prosecution is that Smti. Baby Rani Roy mortgaged her land in favour of her father Sunil Deb when she took a loan of Rs. 20,000/- for the marriage of her eldest daughter Padma and thereafter her father Sunil Deb had been cultivating the land in question. The prosecution story with regard to the incident is that in the month of Baishakha, 2006 A.D., the deceased Sunil Deb along with his wife Bina Rani Deb (PW-3), son Prantosh Deb (not examined) and two labourers (PW-10 & 11) went to the land in village Ghaniamara to harvest the paddy crop. At that time, they were attacked by all the accused persons and the appellant-accused gave a blow of a 'lathi' on the head of Sunil Deb. This caused a grievous injury on the person of Sunil Deb who was immediately shifted to Bishalgarh Hospital from where he was referred to the G.B. Hospital. At that time, they were attacked by all the accused persons and the appellant-accused gave a blow of a 'lathi' on the head of Sunil Deb. This caused a grievous injury on the person of Sunil Deb who was immediately shifted to Bishalgarh Hospital from where he was referred to the G.B. Hospital. He succumbed to the injuries the next morning and then the FIR was lodged by PW-3, widow of the deceased, on 19-04-2006 at 09-05 hours. All the accused were charged with having committed the murder of the deceased and also charged with the offence of rioting. 3. The accused pleaded not guilty and claimed trial. After trial, the learned trial Court convicted the appellant-accused as aforesaid and also convicted the other 4 (four) accused namely Shri Nanda Dulal Roy, Shri Chandra Sekhar Roy, Smti. Bina Rani Roy and Smti. Basanti Rani Roy for having committed an offence punishable under Section 148 IPC, but they were released on probation. They have not challenged this finding and that has become final. 4. The appellant-accused has filed the present appeal and on behalf of the appellant-accused it is argued that the prosecution has not proved that the land belonged to PW-5, Smti. Baby Rani Roy, or that it was mortgaged with her father deceased Sunil Deb. It is also urged that admittedly an altercation took place on the spot and a cross FIR (FIR No. 64 of 2006 corresponding to G.R. 369 of 2006) was also lodged by the accused persons in which they had complained that they had been attacked by Sunil Deb and his family. 5. Sri B. Deb, learned counsel for the appellant, has also urged that there are material contradictions in the statement of the witnesses and other than the family members, all the other independent witnesses have not supported the prosecution. He, therefore, contends that the prosecution story cannot be believed. In the alternative, Sri Deb submits that even if the act is proved to have been committed, then also it is not an offence of murder but an offence under Section 304-II IPC. 6. At the outset, we may state that according to the widow (PW-3), at about 6 a.m. in the morning, she along with her husband Sunil Deb, son Prantosh Deb and two labourers went to the field to harvest the paddy crop. 6. At the outset, we may state that according to the widow (PW-3), at about 6 a.m. in the morning, she along with her husband Sunil Deb, son Prantosh Deb and two labourers went to the field to harvest the paddy crop. Here they were attacked by the accused party and the appellant struck a blow of a 'lathi' on the head of her husband. She has not stated that any other person was present at the spot. The two labourers were examined as PW-10 and 11 and both of them stated that when they along with Sunil Deb and his wife reached the spot, some other persons including ladies from a nearby hillock informed that the paddy field was disputed. Hearing this, the two labourers fled away. The witnesses were declared hostile and cross-examined by the Public Prosecutor. In cross-examination, the entire statement was put to them and the witnesses stated that they had not stated anything to the police about the happening of the incident. The statements were thereafter marked in evidence, subject to confirmation by the I.O. Neither any specific portion of the statement nor the words in the statement have been recorded in the statement of the witnesses and, therefore, this Court is left guessing as to what was the statement with which they were confronted with. 7. This was a dispute where the main issue was--who was the actual owner of the land. The true owner of land always has the right to protect his land. The Investigating Officer states that he did not take any step to find out the revenue record with regard to the disputed land. The least we can say that this shows that the Investigating Officer did not know how to investigate a case. The case of the prosecution further was that PW-3 had mortgaged her land to her father. Other than the bald statement, there is no evidence in this regard. A mortgage can only be done through a registered document if the value of the land is more than Rs. 100/- or by way of deposit of title deed. There is no such proof on record. However, we are of the view that whether the land was mortgaged or not will have no effect on the case because the daughter (PW-5) was well within her rights to authorise her father to cultivate her land even without any mortgage. 100/- or by way of deposit of title deed. There is no such proof on record. However, we are of the view that whether the land was mortgaged or not will have no effect on the case because the daughter (PW-5) was well within her rights to authorise her father to cultivate her land even without any mortgage. 8. We have carefully gone through the record and we cannot say with certainty who is the actual owner of the land. In fact, the learned Additional Sessions Judge has also come to the conclusion that on the basis of the evidence there was every likelihood that the portion of the land came to the share of Baby Rani Roy. Criminal cases are not decided on the basis of likelihood, but on the basis of proof beyond reasonable doubt. Therefore, we shall proceed on the basis that it has not been proved that the disputed land belonged to PW-5, but it has also not been proved that the land belongs to the accused persons and, therefore, the land shall be treated to be disputed land which was stated by the independent witnesses PW-10 and 11 also. 9. Coming to the incidence, according to PW-3, the widow of the deceased, PW-5, the daughter of the deceased, PW-1, the grand-daughter of the deceased, Sunil Deb along with his wife Bina Rani Deb, son Prantosh and two labourers went to the land. Here it may be stated that PW-1 also states that her brother Binoy and mother Baby Rani Roy also went to the land. Even Binoy has not been examined and Baby Rani Roy who was examined as PW-5 does not state that she accompanied her father to the land in question. Her version is that her father, mother, brother and two labourers came to the land and when the labourers started harvesting paddy crop, her brother-in-laws, the accused persons, their wives and the appellant arrived there armed with a 'lathi'. She was standing in a paddy field nearby. Therefore, the version of PW-1 cannot be believed. Having held so, there is no reason to disbelieve PW-3 and PW-5. Both of them state in one breath that the deceased was given a blow of a 'lathi' by the present appellant. She was standing in a paddy field nearby. Therefore, the version of PW-1 cannot be believed. Having held so, there is no reason to disbelieve PW-3 and PW-5. Both of them state in one breath that the deceased was given a blow of a 'lathi' by the present appellant. This version of these two witnesses is fully supported by the Doctor, PW-13, who has stated that the injuries found on the person of the deceased can be caused by a 'lathi'. 10. The defence taken by the appellant-accused with regard to the injury on the person of the deceased is that when the deceased along with his family were leaving the place of occurrence, the deceased fell down and his head hit a tap and he, therefore, received such injury. No such suggestion was put to the doctor that such an injury could be received by falling on a tap. With regard to this defence, there are two inconsistent versions. One version is that the deceased fell on a tap and the other version is that the deceased fell on a disused tube well. This version of the defence, therefore, cannot be believed especially when there is no evidence whatsoever to show the existence of a tap or a tube well at or around the place of occurrence. Therefore, we are of the considered view that the prosecution has proved that the deceased was hit by the appellant. 11. Having held so, the next question is whether the deceased is guilty of the offence of murder or not. The following facts clearly emerge:- (i) The land was ploughed by the deceased. We are taking this fact to be proved because there is no cross-examination on this aspect; (ii) The deceased along with his wife, son and two labourers went to harvest the paddy crop; (iii) That the ownership of the land is disputed; (iv) That at the place of occurrence, the accused side raised an objection to the deceased and his party harvesting the paddy crop on the ground that the ownership of the land was disputed; (v) Hearing this objection, the labourers fled away; (vi) That after the labourers fled away, some altercation took place because even the appellant and the other accused persons lodged a cross FIR (FIR No. 64 of 2006); (vii) That in this altercation, injuries were received by Sunil Deb; 12. In the present case, there is no evidence of any injuries on the person of Smt. Bina Rani Deb, Prantosh Deb or Smt. Baby Rani Roy. Even the deceased Sunil Deb had received three injuries which are as follows:- (i) Haematoma over eyelid of left eye; (ii) Stitched lacerated wound measuring 6.5 c.m. in length over the middle part of right parietal region of scalp and 2.5 c.m. away from midline. Huge sub-scalp haematoma over the right side of the scalp; (iii) Depressed fracture of both the table of skull in an area of 3.5 c.m. x 2.5 c.m. on the middle of right parietal bone. Patchy extradural haematoma over the parietal lob of right cerebral hemisphere. Defuse subdural haematoma over both cerebral hemisphere amounting about 150-200 ml. of blood; 13. Injuries (ii) and (iii) relate to one blow of the 'lathi' because injury no.(ii) is the lacerated wound of the scalp and the injury no.(iii) is the fracture below the scalp. Injury no.(i) could also have been caused when the deceased fell down and it is a very minor injury. Thus, it appears to us that only one blow of the 'lathi' was given to Sunil Deb. None of the other persons of the party of Sunil Deb received any injuries. In this view of the matter, we are of the considered opinion that the intention of the accused was not to cause the death of Sunil Deb. The occurrence took place in the heat of passion when the two parties were fighting with each other over a disputed piece of land and during this altercation the appellant-accused gave a blow on the head of Sunil Deb. This blow was with a wooden 'lathi' which is normally carried by agriculturist and it cannot be said to be a deadly weapon and, therefore, we are of the considered view that the appellant should have been convicted only under Part-II of Section 304 and not under Section302 IPC. We are also of the opinion that no case of rioting was made out because this was a case where two sides were fighting over a disputed piece of land and the conviction of the accused under Section 148cannot be sustained. 14. We are also of the opinion that no case of rioting was made out because this was a case where two sides were fighting over a disputed piece of land and the conviction of the accused under Section 148cannot be sustained. 14. In view of the above discussion, we partly allow the appeal, set aside the judgment of the learned trial Court convicting the appellant under Section 302 and 148 IPC and convict him only under Section 304Part-II of IPC and direct him to undergo rigorous imprisonment for a period of 5 (five) years and to pay fine of Rs. 10,000/- (rupees ten thousand) only. In case, the fine is deposited, the same shall be paid to PW-3, widow of the deceased. In case, the fine is not deposited, then the appellant shall undergo further simple imprisonment for a period of 1 (one) year. Needless to say that the period of incarceration which the appellant may have undergone either during trial or after judgment shall be taken into consideration when counting this period of 5 (five) years. 15. A copy of the judgment be supplied free of cost to learned Counsel for the appellant. Send down the lower court records forthwith.