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2014 DIGILAW 394 (TRI)

Krishna Charan Debnath v. State of Tripura

2014-11-25

U.B.SAHA

body2014
JUDGMENT Utpalendu Bikas Saha, J. 1. The instant revision petition is filed by the accused-petitioner challenging the judgment and order dated 08.08.2006 passed by the learned Addl. Sessions Judge, North Tripura, Dharmanagar in Crl. A. 13(2)/2006 affirming the conviction of the convict petitioner under Section 326 IPC and sentenced him to suffer RI for six months and to pay a fine of Rs. 5,000/-, i.d. to suffer RI for another five months. 2. Heard Mr. H. Debnath, learned counsel for the accused-petitioner as well as Mr. R.C. Debnath, learned Addl. PP for the State. 3. The prosecution case in brief is that on 14.08.2003 at about mid-night, while the brother of the informant Sri Jatindra Sutradhar (PW 6) was in a ritual function (Kirtan) in the house of Ramendra Nath, the accused-petitioner called him from the said Kirtan outside the hut and took him under a tree nearby the said hut, where the petitioner and his son Pradip Debnath assaulted him with a Dao causing grievous cut injury on his head. As a result he sustained bleeding injury. Hearing his cry, the villagers took him to Uptakhali PHC and then shifted to Dharmanagar hospital and lastly he was sent to Silchar Medical College Hospital for treatment where he finally got himself treated. The brother of Jatindra Sutradhar (PW 6), namely, Sri Rasamay Sutradhar lodged an FIR with the Panisagar police station and the said FIR was registered as Panisagar P.S. Case No. 47/2003 under Section 326/34 IPC. After proper investigation, the police filed charge sheet against the convict petitioner under Section 326/34 IPC. 4. Learned SDJM, Dharmanagar, North Tripura upon receipt of the charge sheet took cognizance of the offence and issued process for appearance of the accused persons and accordingly, the accused-petitioner and his son appeared before the Court. During trial, the son of the accused-petitioner namely, Pradip Debnath expired on 06.05.2005 in a motor accident against which a case was registered in the Dharmanagar P.S. bearing No. 47/2005 under Sections 279/304(A) IPC. Due to the expiry of the son of the accused-petitioner no charge could be framed against the accused-petitioner under Section 326 read with Section 34 IPC. 5. Prosecution examined as many as 13 witnesses including the official witnesses and also exhibited some documents in support of its case. Due to the expiry of the son of the accused-petitioner no charge could be framed against the accused-petitioner under Section 326 read with Section 34 IPC. 5. Prosecution examined as many as 13 witnesses including the official witnesses and also exhibited some documents in support of its case. After completion of the prosecution evidence the accused-petitioner was examined under Section 313 Cr.P.C. and he declined to adduce any evidence. 6. After hearing the parties, the learned SDJM, Dharmanagar, North Tripura relying on the prosecution case convicted the petitioner under Section 326 IPC and sentenced him to suffer RI for two years and also to pay a fine of Rs. 5,000/- i.d. to suffer further RI for six months. Being aggrieved by the judgment of the learned trial court, the accused-petitioner preferred an appeal which was registered as Criminal Appeal No. 13(2) of 2006. The learned Addl. Sessions Judge, North Tripura, Dharmanagar after hearing the parties, partly allowed the appeal affirming the order of conviction and modifying the sentence of RI for two years to RI for six months and a fine of Rs. 5,000/- i.d. to suffer further RI for five months. Being aggrieved by the judgment and order of the learned Addl. Sessions Judge, North Tripura, Dharmanagar the accused-petitioner preferred the instant revision petition. 7. Mr. Debnath, learned counsel for the petitioner submits that both the trial court as well as the appellate court committed wrong while passing their respective judgment as they failed to consider the evidence on record. He further submits that PW 2, Sri Ramananda Debnath is the owner of the house where the Kirtan was going on and PW 3, Smt. Kamala Debnath, is the mother of PW 2, but no such incriminating statement has come from these two witnesses against the convict-petitioner. PW 4, Sri Sunil Sutradhar who claimed to be the eye-witness of the incident and PW 6, Sri Jitendra Sutradhar, the alleged victim of the instant case, also nowhere stated during trial how they could recognize the convict-petitioner during the dead hours of the night when according to PW 2, Sri Ramananda Debnath, the Kirtan was held with the light of Kupi light. More so, according to him, the said Kupi light was also not seized by the police which was the source of identification. 8. More so, according to him, the said Kupi light was also not seized by the police which was the source of identification. 8. The victim in his cross-examination stated that he saw the convict-petitioner to give blow on his head in the light of torch and the said torch was also not seized. Therefore, it would be proper for the Court to disbelieve the evidence of PW 4 and PW 6. He finally contended that during investigation and trial the convict-petitioner was in jail for 90 days and therefore, if this Court is of the opinion that the conviction needs to be upheld then the sentence can be modified to the extent already undergone by the convict-petitioner and the order of fine may also be maintained. 9. Mr. Debnath, learned Addl. PP for the State while supporting the order of conviction passed by the learned trial court and affirmed by the learned appellate court and the order of sentence modified by the appellate court would submit that the learned appellate court has already taken a lenient view and therefore, it would not be proper for this Court to interfere with the judgment impugned herein. 10. This Court has gone through the evidence on record. It appears from the evidence of PW 4, Sri Sunil Sutradhar and PW 6, Sri Jitendra Sutradhar that they were able to identify the accused-petitioner Krishna who had caused injury upon PW 6 with Dao on his head. It also appears from the evidence of PW 11, Dr. Nirmalendu Bhattacharjee, who examined the victim PW 6, when he was brought to the hospital on that date, and found three injuries; (i) Deep cut injury of Scalp measuring 3" X 1/2" X 1/2", (ii) Middle of Scalp place oblique measuring 4 c.m. X 1/2 c.m. X 1/2 c.m., (iii) Paresis of left upper and left lower extremities caused by sharp cutting weapons. PW 11 also stated that the injury was fresh in nature and the petitioner was referred to Dharmanagar Hospital. Even if we disbelieve the evidence of all the other witnesses then also the evidence of PW 4 and PW 6 remain. In view of that, this Court is of the considered opinion that the order of conviction passed by the learned trial court and affirmed by the learned appellate court does not require any interference. 11. Even if we disbelieve the evidence of all the other witnesses then also the evidence of PW 4 and PW 6 remain. In view of that, this Court is of the considered opinion that the order of conviction passed by the learned trial court and affirmed by the learned appellate court does not require any interference. 11. However, as the petitioner was in jail for three months at the time of investigation and during trial, this Court is of the considered opinion that it would not be proper to send him to jail after elapse of more than a decade from the date of incident. Accordingly, the sentence to suffer six months RI is modified to the period already undergone. However, as regards the sentence to pay fine of Rs. 5,000/-, the same is maintained. 12. As the petitioner is on bail, he shall deposit the fine money of Rs. 5,000/- within two months from today with the learned trial court and if he fails to do so, the learned trial court shall take all necessary steps to take him into custody for suffering RI for five months as ordered by the learned appellate court. 13. In the result, the instant revision petition is partly allowed. Send down the LCR.