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2014 DIGILAW 254 (TRI)

Santosh Das v. State of Tripura

2014-07-02

DEEPAK GUPTA, S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This criminal appeal, under Section 374(2) of Cr.P.C., is directed against the judgment and order of conviction and sentence, dated 15.09.2011, passed by learned Asstt. Sessions Judge, Dharmanagar, North Tripura in Sessions Trial Case No. S.T. 49(NT/D)2010 where-under learned Asstt. Sessions Judge found the accused-appellant guilty of the charge framed against him under Section 307 of IPC and sentenced him to suffer R.I. for 10 years and to pay a fine of Rs.10,000/- in default of payment to suffer further S.I. for 3(three) months. 2. Heard learned counsel Mr. S. Lodh for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the state-respondent. 3. Prosecution case, in short, is that on 21.11.2008 at about 6/6-30 a.m., Jitendra Nath (P.W. 9) was on way to Shailenbari rubber garden, where he used to work as a tapper, for his day's work and while he was crossing through a lunga type of land, near the garden, the accused Santosh Das with a 'dao', looking like a 'knife' (a sharp cutting weapon), coming from behind struck blows on his neck, head, left hand and other parts of the body and as a result he received bleeding injuries. He raised high alarm drawing attention of other labourers of the garden to save him and while in scuffling with the accused, he hold the accused and hearing his cries P.W. 2 Naiman Manik Halam and P.W. 3 Mohan Kumar Rana rushed to the spot and thereafter the accused left the place. Other labourers of the garden also gradually came to the spot and shifted him to the garden office at first and then shifted him to Panisagar PHC but since his condition was deteriorated, he was shifted to Kailashahar District Hospital for treatment where he was treated as an indoor patient till 02.12.2008. It is the further case of the prosecution that the accused after commission of the offence, while fleeing away, left the weapon of offence in the house of P.Ws 6 and 11 i.e. Tapan Das and Ranjan Das and thereafter he went to P.S. and reported to the police officer on duty i.e. P.W. 13 that he was assaulted by Jitendra Nath, the victim. P.W. 13 recorded the information in G.D. Entry No. 983 dated 21.11.2008 but he found no visible injury on the person of the accused and therefore, let him to go and then he (accused) left for the hospital. It is the further case of the prosecution that the accused was arrested on 01.12.2008 and thereafter on his interrogation, the accused made a statement that he would be able to produce the weapon of offence and accordingly his statement was recorded by the I.O. and thereafter he took the police to the house of P.Ws 6 and 11 wherefrom he handed over the 'dao' (Exhibit M.O. 2) to I.O. and I.O. seized the same by preparing seizure list in presence of P.Ws 6 and 11. In course of investigation, I.O. visited the place of occurrence, prepared hand sketch map where the accused allegedly assaulted the victim P.W. 9 and also prepared a hand sketch map of the house of P.Ws 6 and 11 wherefrom the weapon of offence was recovered. I.O. also collected the medical report from Kailashahar District Hospital submitted by P.W. 14 wherefrom it was revealed that the victim suffered grievous injury because of the assault. After completion of investigation I.O. submitted charge-sheet against the accused-appellant Santosh Das for commission of offence punishable under section 307 of IPC. Cognizance was taken on the basis of the charge-sheet and thereafter on commitment of the case to the Court of Sessions, trial was taken up and the learned Asstt. Sessions Judge on 16.11.2010 framed charge against the accused for commission of offence punishable under Section 307 of IPC to which he pleaded not guilty and claimed to be tried. 4. Prosecution examined 15 witnesses to prove the charge. P.W. 9 Jitendra Nath is the injured victim of the case and is the star witness of the prosecution case. P.Ws 2 and 3 are the labourers of the rubber garden and they rushed to the spot hearing the alarm raised by P.W. 9 and found the victim Jitendra Nath with severe bleeding injury and also found the accused scuffling with the victim on the spot and after their arrival the accused left the spot. P.Ws 4 and 5 are also labourers of the rubber garden and they rushed to the place of occurrence hearing the alarm along with other labourers. P.Ws 4 and 5 are also labourers of the rubber garden and they rushed to the place of occurrence hearing the alarm along with other labourers. They stated that on their query Jitendra Nath told them that the accused inflicted the injuries on his person striking 'dao' blows. P.Ws 6 and 11 are the witnesses of recovery of 'dao', the weapon of offence marked Exhibit M.O. 2. P.W. 1 is the informant of the case and he lodged the FIR on the basis of the information he received from other labourers of the garden. P.Ws 7, 8 and 12 were tendered and neither examined in-chief nor cross examined. P.W. 10 stated nothing relevant. P.W. 14 is the medical officer and he examined the victim in the District Hospital at Kailashahar and submitted the injury report. P.W. 13 is the I.O. of the case. 5. After closure of the prosecution evidence accused was examined under Section 313, Cr.P.C. In his turn, the accused declined to adduce any defence evidence. Defence case is nothing but denial of the prosecution case. 6. At the conclusion of trial, learned Asstt. Sessions Judge found the accused guilty of committing offence punishable under Section 307 of IPC and sentenced him as stated hereinbefore. Hence, this appeal. 7. Learned counsel Mr. Lodh appearing for the accused-appellant has submitted that except P.W. 9 the injured victim himself, there is no other eye witness of the occurrence. P.Ws 2 and 3, according to their statements, reached the spot after hearing the alarm but they did not corroborate each other. Had they reached together they would corroborate each other as to what they found on reaching the spot but their statements are quite contradictory for which they cannot be believed. Other witnesses i.e. P.Ws 4 and 5 are hearsay witnesses and their statements made before the Court was contradicted with their earlier statements made before I.O. and so they also cannot be believed. P.W. 1 is a hearsay witness and his evidence carries no credibility. The accused was also a labourer of the garden and it might happen that for the enmity on the issue of theft of money from the pocket of the injured victim Jitendra Nath, he lodged a false case. 8. Learned Addl. P.W. 1 is a hearsay witness and his evidence carries no credibility. The accused was also a labourer of the garden and it might happen that for the enmity on the issue of theft of money from the pocket of the injured victim Jitendra Nath, he lodged a false case. 8. Learned Addl. P.P., on the other hand, has submitted that P.W. 9 is the injured witness of the occurrence and there is nothing on record to disbelieve him. His evidence has not been shaken in any manner. He suffered grievous injury due to 'dao' blows inflicted by the accused. The weapon of offence has been recovered at the instance of the accused. The injury report and the evidence of P.W. 14 show that the victim Jitendra Nath suffered multiple injuries. He is corroborated by P.Ws 2 and 3 who first reached the spot hearing his alarm. This evidence is enough to arrive at a conclusion that the victim was assaulted by inflicting 'dao' (Exhibit M.O. 2) blows. There is no reason to disbelieve these witnesses. 9. An injured is generally accepted as a star witness of the occurrence. He is not likely to implicate an innocent in place of actual offender. He made a clear and cogent statement about the occurrence. He stated that on the date of occurrence i.e. on 21st of November at about 6 a.m. he was on way to Shailenbari rubber garden where he used to work as a tapper for his day's work. On the way while he was crossing a lunga land (low land between the high lands) the accused coming from his back side struck blows with a 'knife'/'dao' on his neck and he received bleeding injury. The accused again struck a blow on his head and he received bleeding injury. He fell on the earth and was trying to save himself from the attack and at that time, the accused struck another blow which hit his left hand wrist and he received severe bleeding injury. He has shown the scar marks of the injuries sustained by him in the open Court. He further stated that when he fell down the accused tried to throttle him with a view to kill him. Somehow he got right hand of the accused in his mouth and during scuffling, he had bitten a finger of right hand of the accused. He further stated that when he fell down the accused tried to throttle him with a view to kill him. Somehow he got right hand of the accused in his mouth and during scuffling, he had bitten a finger of right hand of the accused. Hearing his cry to save his life P.Ws 2 and 3 Naiman Manik Halam and Mohan Kr. Rana arrived at the spot and they rescued him. Thereafter he was taken to hospital where he undergone treatment for 13 days. 10. This material part of the statement of P.W. 9 has not been shaken in cross examination in any manner. He is corroborated by the evidence of P.W. 14, the medical officer. After going through the statement of P.W. 14 and the medical report (Exhibit-4), we find that medical officer found 4 (four) injuries on the person of the victim Jitendra Nath and out of those four injuries, the injury of the left forearm was grievous in nature. P.Ws 2 and 3 materially corroborated P.W. 9. They stated that hearing the alarm they reached the spot and found the victim Jitendra Nath with bleeding injuries. P.W. 2 stated that he found the victim scuffling with the accused and P.W. 3 stated that he found the victim holding accused Santosh and lying on the earth. Such statement of both the witnesses cannot be termed as contradicting each other. It might happen that both of them reached simultaneously one after another and witnessed the accused and the victim scuffling since the victim was trying to resist the accused from further assault. Obviously a person having been attacked will try to save himself from further attack. There may be slight difference in the statement because the power of observation and retention of the same occurrence by several witnesses likely to be slightly different but what is to be understood is the crux of the statement whether one is in contradiction with the other making both the statements unbelievable. We find no such serious discrepancy in the statement of P.Ws 2 and 3 to throw their statements overboard. They are co labourers of both the accused and the victim. There is nothing for them to make a false statement against the accused at least not even a suggestion that for any animosity they made false statement. We find no such serious discrepancy in the statement of P.Ws 2 and 3 to throw their statements overboard. They are co labourers of both the accused and the victim. There is nothing for them to make a false statement against the accused at least not even a suggestion that for any animosity they made false statement. We are of considered opinion that P.Ws 2 and 3 amply corroborated P.W. 9 in respect of the occurrence. 11. P.Ws 4 and 5 are also co labourers. They also rushed to the spot hearing alarm and found the victim Jitendra Nath with bleeding injuries and they along with other labourers brought Jitendra to the office of the garden and there from Jitendra was shifted to hospital and P.W. 4 accompanied him. Material part of their statement made before the Court was contradicted with their earlier statement. At the time of cross examination though attention of the witnesses were drawn to their earlier statements but what was the response of the witnesses to those statements has not been recorded and so the defence cannot claim benefit of the same. We are, therefore, of the considered opinion that the evidence of P.Ws 4 and 5 also corroborated the victim about the occurrence. The submission of learned counsel Mr. Lodh that P.W. 9 has not been corroborated by other witnesses and so the fact narrated by P.W. 9 cannot be believed, deserves no merit for consideration. 12. The next argument advanced by learned counsel Mr. Lodh is that there is contradiction in the statement of the witnesses regarding the place of occurrence and hence prosecution case is liable to be disbelieved. Learned Addl. P.P. has submitted that there is no material discrepancy in the statement of the witnesses in respect of place of occurrence and therefore, there is nothing to disbelieve the fact. 13. We have carefully examined the material statements of the witnesses and we find no such noticeable discrepancy to draw an adverse inference about the crux of the prosecution case. P.W. 9 clearly stated that he was on way to the rubber garden and was passing through a lunga type of land where he was attacked by the accused which is corroborated by P.Ws 2 and 3 and there is no such material discrepancy in the statement including the statement of I.O. This argument therefore, deserves no consideration. 14. P.W. 9 clearly stated that he was on way to the rubber garden and was passing through a lunga type of land where he was attacked by the accused which is corroborated by P.Ws 2 and 3 and there is no such material discrepancy in the statement including the statement of I.O. This argument therefore, deserves no consideration. 14. The next argument advanced by learned counsel Mr. Lodh is that even if it is assumed that the accused assaulted P.W. 9 causing injuries, there is no ingredient at all to arrive at a conclusion that the offence punishable under Section 307 of IPC has been established. The nature of injuries and the part of the body where the grievous injury was inflicted do not suggest that the injuries were inflicted with the intention and/or with knowledge of murdering the victim. Further, though P.W. 9 stated that the accused first struck a blow on his neck but the medical officer found no such injury on the neck. Only the injury on the left hand wrist was grievous in nature and the other injuries were simple. Regarding the weapon of offence used, the medical officer stated that it was sharp cutting weapon and there was no cross examination on the point. However, referring to the facts and circumstances that there was no previous plan and there was no such serious animosity and that it might happen that because of slur of theft there might be quarrel and the incident occurred, learned counsel prayed for taking a lenient view. 15. Learned Addl. P.P. also fairly submitted that the facts and circumstances of the case and the nature of injuries do not suggest that there was attempt to murder. However, he has strongly pleaded that the accused intentionally and deliberately inflicted grievous hurt on the person of the victim and therefore, severe punishment under Section 325 of IPC shall be the appropriate punishment for the offence committed by the accused. 16. We have meticulously gone through the evidence on record. There is no evidence that there was any animosity between the accused and the victim. P.W. 9 the victim in his cross examination stated that an amount of Rs.1010/- was stolen from his pocket while his wearing apparels were kept in the office of the garden. On a subsequent day he got Rs.650/- out of the stolen amount. There is no evidence that there was any animosity between the accused and the victim. P.W. 9 the victim in his cross examination stated that an amount of Rs.1010/- was stolen from his pocket while his wearing apparels were kept in the office of the garden. On a subsequent day he got Rs.650/- out of the stolen amount. In his cross examination he further stated that he told Santosh (accused) that he will recover the rest of the stolen money and he will also find out the man who had stolen the money. Beside this fact, there is no other fact brought on record that on the issue of the theft of money from the pocket of the victim there was any slur made against the accused. However, the fact which is proved in the statement of P.W. 9 is that the accused attacked the victim from behind and inflicted multiple 'dao'/'knife' blows on the person of the victim. P.W. 9 the victim stated that first blow was struck on his neck but P.W. 14 the medical officer found no injury on the neck. The injury report clearly shows that injury No. 1 was found on left forearm (ulna); injury No. 2 was found on tip of ring finger. Injury No. 3 was found on scalp and injury No. 4 was found on right hand. P.W. 14 found all the injuries in stitched condition so we appreciate his evidence that he may not clearly state the nature of injury since it was already stitched. There was no severe injury on the vital part of the body to draw an inference that the accused inflicted the injuries with intent to commit murder. 17. Section 307 requires that the act must be done with such intention or knowledge, or done under such circumstances that if death be caused by that act the offence of murder emerge. Without this ingredient being established, there can be no offence under Section 307 of IPC. Since the intention precedes the act, such intention has to be gathered from the surrounding circumstance. In order that an attempt may fall under the consideration of this Section, a third element, besides the mens rea and actus reus, would be necessary and, that is, the act done with the mens rea would have constituted the offence of murder, had death been caused. 18. In order that an attempt may fall under the consideration of this Section, a third element, besides the mens rea and actus reus, would be necessary and, that is, the act done with the mens rea would have constituted the offence of murder, had death been caused. 18. The facts and circumstances of the case is that the accused coming from behind inflicted 'dao' blows on the person of the victim causing severe bleeding injury but the nature of injuries and the facts and circumstances do not suggest that he was intending to commit murder or that he inflicted the injury with knowledge that it will ultimately cause death of the victim. The finding of learned Asstt. Sessions Judge that the offence committed fulfilled the ingredient of Section 307 of IPC, cannot stand and hence punishment inflicted under Section 307 of IPC is set aside. 19. The evidence of record clearly established that the accused inflicted grievous hurt striking 'dao' blows on the person of the victim Jitendra Nath and so, the ingredients of Section 325 of IPC clearly established and hence, the accused is found guilty of committing offence punishable under Section 325 of IPC. 20. There was no quarrel or animosity between the accused and the victim. Both of them were labourers of the garden. The accused came from behind and inflicted the injuries on the person of the victim which shows that with a clear intention of causing injuries, he attached the accused. Under such circumstances of the case, we consider it appropriate not to extend the benefit of Section 360 of Cr.P.C. or that of Section 4 of the Probation of Offenders' Act. 21. Considering the facts and circumstances and the nature and gravity of the offence, the accused-appellant Santosh Das is sentenced to suffer R.I. for 5(five) years and to pay a fine of Rs.3000/- (rupees three thousand) in default to payment to suffer further S.I. for 1(one) month. 22. Fine money if realized, be given to the victim Jitendra Nath. 23. Send down the L.C. records along with a copy of the judgment.