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2014 DIGILAW 408 (TRI)

Promod Rudrapaul v. State of Tripura

2014-12-02

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 read with Section 401 of Cr.P.C. is directed against judgment and order dated 18.05.2007, passed by learned Addl. Sessions Judge, Kamalpur, North Tripura, now Dhalai District in connection with Criminal Appeal No. 4 of 2007. 2. Heard learned counsel, Mr. A. Bhowmik for the petitioner and learned P.P., Mr. A. Ghosh for the State respondent. No representation on behalf of respondent No. 2. 3. On the basis of an FIR lodged by Prasanna Rudra Paul (PW 1), Kamalpur P.S. Case No. 45 of 2005 under Sections 341, 325 of IPC was registered on 25.07.2005 against respondent No. 2, Rabindra Das alias Rabi Das and another Kinkar Das. After investigation of the case police submitted charge sheet against both the accused named in the FIR and in course of trial charges were framed against them for commission of offence punishable under Section 326 read with Section 34 of IPC and under Section 323 read with Section 34 of IPC to which they pleaded not guilty and claimed to be tried. 4. In course of trial, prosecution examined 10 witnesses including the victim-informant Prasanna Rudra Paul (PW 1) and two other injured, i.e. the present petitioner, Pramod Rudra Paul (PW 6) and Smt. Bani Rudra Paul (PW 7). After closure of the prosecution evidence, the accused persons were examined under Section 313 of Cr.P.C. and in their turn they adduced no defence evidence. 5. Learned SDJM by judgment dated 28.02.2007 acquitted accused Kinkar Das from the charges but found accused Rabindra alias Rabi Das guilty of committing offence punishable under Section 326 of IPC and sentenced him to suffer RI for three years and again found him guilty of committing offence punishable under Section 323 of IPC and sentenced him to pay a fine of Rs.1,000/-, in default of payment of fine to suffer RI for a period of three months. 6. Aggrieved, the convict Rabindra alias Rabi Das preferred Criminal Appeal No. 4 of 2007 and by impugned judgment dated 18.05.2007 learned Addl. Sessions Judge, Kamalpur set aside the judgment and order of conviction and sentence under Section 326 of IPC but upheld the conviction and sentence under Section323 of IPC. 7. The State did not challenge the judgment passed by learned Addl. Sessions Judge. Sessions Judge, Kamalpur set aside the judgment and order of conviction and sentence under Section 326 of IPC but upheld the conviction and sentence under Section323 of IPC. 7. The State did not challenge the judgment passed by learned Addl. Sessions Judge. The injured victim, Pramod Rudra Paul preferred the revisional application challenging the judgment passed by the learned Addl. Sessions Judge only on the ground that in the assault he received grievous injury and that the medical officer, i.e. PW 9 in his deposition clearly stated that the petitioner received grievous injury whereas the learned Addl. Sessions Judge discarded the evidence of PW 9 without any reason and hence by filing this revisional application the judgment and order passed by learned Addl. Sessions Judge has been challenged. 8. Learned counsel, Mr. A. Bhowmik has submitted that PW 6 in his evidence clearly stated that Rabindra Das assaulted him with a 'huja'(a splitted heavy piece of bamboo used to carrying paddy) on his both hands and when his wife came she was also assaulted and when his brother Prasanna came he was also assaulted. They were taken to hospital and he was admitted in the hospital for four/five days. Mr. Bhowmik, learned counsel has also submitted that PW 9, Dr. Subrata Das in his evidence clearly stated that the doctor examined Pramod Rudra Paul and found swelling over the right forearm and shoulder and shaft of right ulna lower 1/3rd and fracture of P.P. left little finger which was grievous in nature. According to Mr. Bhowmik, learned counsel, since there was grievous injury sustained by the petitioner the trial Court rightly held the accused-respondent guilty of the charge under Section 326 of IPC and the Court of Sessions would not disturb the finding. 9. Learned P.P. also has fairly submitted that there is evidence of fracture injury sustained by the victim-petitioner and so the finding of the learned Addl. Sessions Judge cannot be supported. 10. On perusal of the impugned judgment passed by learned Addl. Sessions Judge I find that learned Addl. Sessions Judge has discarded the medical opinion of PW 9 in respect of injury simply on the ground that no x-ray of the injury was taken. Even without x-ray, on clinical examination medical opinion may be given about the nature of injury. Without considering that aspect the finding of the learned Addl. Sessions Judge I find that learned Addl. Sessions Judge has discarded the medical opinion of PW 9 in respect of injury simply on the ground that no x-ray of the injury was taken. Even without x-ray, on clinical examination medical opinion may be given about the nature of injury. Without considering that aspect the finding of the learned Addl. Sessions Judge that the charge under Section 326 has not been established appears to be a wrong finding and cannot be sustained. 11. This revisional Court while exercising power under Section 397 read with Section 401 of Cr.P.C. cannot convert a finding of acquittal to a finding of conviction. But where finding is not consistent with the evidence on record, I think the order of acquittal may be interfered and the case may be remanded back to the learned Addl. Sessions Judge to rehear the appeal and pass order according to law. 12. Accordingly, the revisional application is allowed. The judgment and order dated 18.05.2007 passed by learned Addl. Sessions Judge, Kamalpur in Criminal Appeal No. 4 of 2007 is set aside. The appeal is remanded back to the Court of learned Addl. Sessions Judge for hearing it afresh and to pass appropriate order appreciating the evidence on record according to law. The appeal should be disposed of within three months from today. 13. Send back the L.C. records along with a copy of this judgment to the Court of learned Addl. Sessions Judge, Kamalpur.