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2014 DIGILAW 357 (TRI)

Ram Krishna Saha v. State of Tripura

2014-11-05

U.B.SAHA

body2014
JUDGMENT Utpalendu Bikas Saha, J. 1. The instant revision petition is directed against the judgment and order dated 15.09.2006 passed by the learned Addl. Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 34(3)/2005 convicting the petitioners, namely, Sri Sampad Saha and Sri Ram Krishna Saha under Section 325 read with Section 34 IPC and sentencing them to suffer R.I. for two years and to pay a fine of Rs. 1000/- each, in default of payment to undergo simple imprisonment for three months, modifying the order of conviction dated 9.8.2005 passed by the learned Chief Judicial Magistrate, South Tripura, Udaipur in GR case No. 27 of 2003 convicting the petitioners and another under Sections 148/325 read with Section 149 IPC and sentencing them to suffer R.I. for two years for committing offence under Section 148 IPC and also to suffer R.I. for four years for committing offence under Section 325 read with Section 149 IPC. 2. The prosecution case, in short, is as follows: On 26.2.2003 at about 1100 hours one Sri Nidhan Das son of Sri Mantu Das of Birganj lodged a written FIR with the officer-in-charge of Birganj police station alleging, inter alia, that on 25.2.2003 at about 11 p.m., on hearing a hue and cry towards Dhakaiar char, he along with others rushed to the spot of troubles near Bamkarai School. On way back, he noticed that some persons were hiding themselves. Anyhow they managed to apprehend one person whose name was Maran Das, a habitual dealer of illicit liquor. At that point of time, Mati lal Dasgupta, (victim) P.W. 7 appeared there and asked them to release him. All on a sudden, Sankar Saha, Sampad Saha, Ram Krishna Saha, Monohar Saha, Mintu Das, Khokan Debnath, Debbarata Saha, Naru, Abhijit Majumder, Mantu Dutta, all local residents, and some others armed with dao, lathi and iron rod appeared at the spot of incident and gave assault on Mati Lal Dasgupta (P.W. 7) resulting in serious bleeding injuries on his person. On account of assault, the informant and his companion Tutan Das Gupta also sustained injuries. 3. Upon receipt of the written FIR, Birganj P.S. case no. 12 of 2003 was registered under Sections 148/149/325/326 of the IPC and set the criminal law in motion. Then the said case was endorsed to S.I.N. Debnath (P.W. 10) of Birganj police station for investigation. 4. 3. Upon receipt of the written FIR, Birganj P.S. case no. 12 of 2003 was registered under Sections 148/149/325/326 of the IPC and set the criminal law in motion. Then the said case was endorsed to S.I.N. Debnath (P.W. 10) of Birganj police station for investigation. 4. During the course of investigation, the I.O. (P.W. 10) visited the place of occurrence and prepared site plan (Ext. 6). He also examined the witnesses and recorded their statements under Section 161 Cr. P.C. He also seized one napkin, which was wrapped up in the neck of the victim in presence of the witnesses by making seizure list (Ext. 4). 5. On completion of the investigation, he submitted the charge-sheet under Sections 148/149/323/324/325/307 IPC against the petitioners along with eleven others. 6. Having received the charge sheet, the learned SDJM, Amarpur perused the same and on being satisfied took cognizance of the offence under Sections 148/323/324/149/325/307 IPC. As the offence punishable under Section 307 of the IPC is exclusively triable by the court of Sessions, he committed the case to the court of Sessions for trial. 7. Upon hearing the parties, the learned Assistant Sessions Judge, South Tripura, Udaipur, in whose court the case was transferred for trial, opined that there was no material to frame charge under Section 307 of the IPC against the appellants and others. So, after framing the charge under Sections 148/325 read with Section 149 IPC, he transferred the case to the court of Chief Judicial Magistrate, South Tripura, Udaipur for trial. 8. The prosecution in support of its case examined ten witnesses in all. The petitioners along with others were then examined under Section 313 Cr. P.C. The defence case is of total denial. As no incriminating material was found against other ten accused persons to examine under Section 313 Cr. P.C., the learned Chief Judicial Magistrate, South Tripura, Udaipur by an order dated 15.6.05 acquitted them of the charge framed against them. 9. On completion of trial, the learned Chief Judicial Magistrate, South Tripura, Udaipur held the petitioners along with another person, namely, Sankar Saha guilty under Sections 148/325 read with Section 149 of the IPC and sentenced them as stated above. 10. 9. On completion of trial, the learned Chief Judicial Magistrate, South Tripura, Udaipur held the petitioners along with another person, namely, Sankar Saha guilty under Sections 148/325 read with Section 149 of the IPC and sentenced them as stated above. 10. Aggrieved by and dis-satisfied with the findings of the learned trial Court, the petitioners have preferred an appeal and the said appeal was disposed of convicting the petitioners under Section 325 read with Section 34 IPC and sentencing them to suffer R.I. for two years and to pay a fine of Rs. 1000/- each, i.d. to suffer S.I. for three months. The appellant Sankar Saha was acquitted of the charge leveled against him. Hence the petitioners have filed this revision petition. 11. Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the petitioners and Mr. R.C. Debnath, learned Addl. P.P. appearing for the respondent-State. 12. Vital witnesses in this case are P.W. 1, Sri Nidhan Das, P.W. 7, Matilal Dasgupta (victim) and P.W. 9, Dr. Kanak Narayan Bhattacharjee who examined the victim. 13. P.W. 1 in his deposition stated that on 25.2.2003 at about 11/11.30 p.m., he was in his house and in response to a hue and cry, he along with other youths, Sri Rajib Das and Tutan Dasgupta came to the spot at Birgonj Bhangarpar and asked some people to know from where alarm call was coming and in reply they told that alarm call was coming from bazaar area. On the way back they found some people entering the house of Pulin Das and they caught one Maran Das who was selling country made liquor there. Soon after the said incident, P.W. 7 Motilal Dasgupta came to the spot and requested them to let off Maran Das and accordingly they released him. After that, they were proceeding towards their house and on their way, 4/5 persons coming out from the nearest agricultural field (pumkin field) intercepted them and asked why they arrived there. Out of them, accused Sankar Saha was scolding them with hurling of filthy language and the accused Sampad hit Matilal Dasgupta by a bamboo stick (Bhar) in his head as Matilal Dasgupta tried to intervene the matter. Accused Ram Krishna was equipped with an iron rod and hit Mati by it and as a result, the torch light fell down from his hand. Accused Ram Krishna was equipped with an iron rod and hit Mati by it and as a result, the torch light fell down from his hand. Out of panic, then they moved away helter skelter. 14. Subsequently, they came back to the place of occurrence and found Matilal Dasgupta lying near river side unconscious condition with grievous injuries in his head and hands and at that time, wife of Matilal Dasgupta, Smt. Baby Dasgupta,(P.W. 4), Uttam Das and other people also came there. 15. P.W. 7, Mati lal Dasgupta, in his deposition stated that on 25.2.2003 at about 11.00/11.30 p.m., he was in his house and heard hue and cry near the river side to the west of his house. Thereafter, he along with Badal, Bijoy Kumar Das, Uttam Kumar Das Bhowmik and Rajib Das came to the spot near the river side. He was hearing hue and cry from Dhakair char. Thereafter, he found that one Maran Das was detained by Nidan Das and another. He asked Nidan to let him off and accordingly Maran Das was let off on his request. Thereafter all on a sudden, accused Sampad Saha came to the spot along with Sankar and Ramkrishna and they uttered filthy language. At this, he enquired from Sampad Saha what had happened. Instantly, Sampad Saha by a bhar (a bamboo stick pointed in two sides used for carrying paddy etc) hit him on his head and also gave blows in his cheek. Ramkrishna Saha hit him by an iron rod in his left hand and as a result his torch light fell down. Then he became unconscious and fell down. He could recognize the accused persons in the light of torch which was in his hand. 16. P.W. 9 Dr. Kanak Narayan Bhattacharjee in his examination in chief stated that on 26.2.2003 he has examined P.W. 7 in male surgical ward of the Tripura Sundari hospital who was admitted through Emergency block with history of physical assault and on examination he found the following injuries: Lacerated wound measuring 1"X 1/4 "X ¼" over left zygoms of face left side. Lacerated wound with hematoma sized about 2" X 1/4"X 1/4" over frontal region Lacerated wound sized about 1/4" X 1/4" X 1/4" over left parietal eminence. Minor abrasion over finger of both hands. In his opinion, all the injuries were simple in nature. Lacerated wound with hematoma sized about 2" X 1/4"X 1/4" over frontal region Lacerated wound sized about 1/4" X 1/4" X 1/4" over left parietal eminence. Minor abrasion over finger of both hands. In his opinion, all the injuries were simple in nature. There was another injury over left fore-arm, for which orthopedic surgeon was consulted. The injury no. 1, 2 and 3 probably caused by sharp or blunt object and the injury no. 4 caused by rough object. 17. Mr. Biswas, learned senior counsel while asking for setting aside the order of conviction and sentence would contend that from the evidence on record, particularly, the opinion of the doctor, P.W. 9, it can be a case of 324 IPC instead of 325 IPC, especially, when the doctor was also not in a position to show what was the weapon used for causing injuries to P.W. 7. He further submits that P.W. 7 though stated that he had identified the accused persons with the help of his torch light, but the said torch light was not seized and thus source of identification is missing. In such a situation, identification itself is doubtful. Mr. Biswas again submits that the doctor who prepared the injury report has not been produced by the prosecution, as a result of which, the petitioners did not get opportunity to cross-examine the said doctor relating to the nature of injuries. 18. On the other hand Mr. Debnath showing the injury report tried to convince this court that P.W. 7 had sustained grievous injuries though he admitted that the doctor who prepared the injury report has not been examined. He also submits that the appellate court did not commit any wrong convicting the petitioners under Section 325 read with Section 34 of the IPC. 19. This court has gone through the judgment of the trial court as well as appellate court and also the evidence on record. It appears from the evidence of medical officer, P.W. 9 that the injuries sustained by P.W. 7 are simple in nature and P.W. 7 had not received any serious injuries on any vital part of his body. P.W. 9 also did not say anything regarding any fracture or any grievous injuries. It appears from the evidence of medical officer, P.W. 9 that the injuries sustained by P.W. 7 are simple in nature and P.W. 7 had not received any serious injuries on any vital part of his body. P.W. 9 also did not say anything regarding any fracture or any grievous injuries. In these circumstances, this Court is of considered opinion that the charge under Section 325 IPC must necessarily fail, but the convict petitioners cannot escape conviction under Section 324 IPC as that has been fully proved by the prosecution. 20. Having regard to the peculiar facts and circumstances of this case as well as the evidence on record, the order of conviction and sentence dated 15.9.2006 passed by the appellate court under Section 325 IPC read with Section 34 IPC is set aside and the petitioners are convicted under Section 324 IPC read with Section 34 IPC. Considering the facts of this case, particularly the year of incident, this Court does not think that this is a fit case in which the petitioners should be awarded jail sentence after almost ten years of the incident. Therefore, this Court impose a fine of Rs. 5000/- to each of the petitioners for commission of offence under Section 324 read with Section 34 of the IPC and they shall pay the aforesaid fine money within a period of two months. In default of payment, they shall suffer R.I. for six months and the learned trial court shall take necessary steps to take them into custody to undergo the aforesaid sentence. If fine money is realized, the entire amount will be paid to P.W. 7, Sri Matilal Dasgupta, the victim, as compensation. Bail bond of the petitioners will be discharged only after the fine money is deposited. 21. With the above modification, the revision petition is partly allowed.