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2014 DIGILAW 409 (TRI)

Sukhen Patari v. State of Tripura

2014-12-02

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 of Cr.P.C. is directed against judgment and order dated 24.04.2008 passed by learned Addl. Sessions Judge, Belonia, South Tripura in Criminal Appeal No. 15(3)/2007 whereunder the learned Addl. Sessions Judge partly allowed and partly dismissed the judgment and order of conviction and sentence dated 17.08.2007 passed by learned Judicial Magistrate, First Class, Belonia in case No.GR 43/2003. 2. Heard learned senior counsel, Mr. P.K. Biswas for the petitioners and learned P.P., Mr. A. Ghosh for the State respondent. 3. Prosecution case is that on 22.02.2003 at about 2315 hrs one Manik Mahajan lodged an FIR in writing before O/C of Hrishyamukh Police Outpost under Belonia P.S., inter alia, alleging that on that day at about 1715 hrs the accused petitioners and 13 other accused persons named in the FIR along with others boarding in 10/12 vehicles arrived at Nalua market and attacked CPI(M) party workers with brickbats, sticks, etc. and they also damaged posters, festoons, flags, etc. of CPI(M) party in the market area. They assaulted CPI(M) workers and because of their attack by brickbats and assault, Bholanath Laskar, Maran Biswas, Babul Sen and Samiran Debnath, etc. were injured. On the basis of that FIR Belonia P.S. Case No. 18 of 2003 under Sections 148, 149, 325, 427 and 506 of IPC was registered and after investigation police submitted charge sheet against all the 19 FIR named accused persons. 4. In the course of trial charges were framed against the accused petitioners and 13 others for commission of offence punishable under Sections 148, 149, 427 and 506 of IPC to which the accused petitioners and other accused persons pleaded not guilty and claimed to be tried. 5. In the course of trial, prosecution examined 15 witnesses. Out of them PWs 1 to 7 are all eyewitnesses of the occurrence and out of them PWs 3, 5 and 6 were injured witnesses. The informant has been examined as PW 11 and he is not an eyewitness of the occurrence. He simply set the law in motion by lodging the FIR on the basis of the information received from others. PWs 9, 12 and 13 are members of the police party who were on duty and arrived at Nalua market after the occurrence. Their evidence is also hearsay. He simply set the law in motion by lodging the FIR on the basis of the information received from others. PWs 9, 12 and 13 are members of the police party who were on duty and arrived at Nalua market after the occurrence. Their evidence is also hearsay. PWs 10 and 14 are the medical officers and the injured witnesses are examined by PW 14 at Belonia hospital. PW 8 stated nothing incriminating. PW 15 is the I.O. of the case. 6. After the closure of prosecution evidence accused persons were examined under Section 313 of Cr.P.C. and in their turn they declined to adduce any defence evidence. Defence case is that of denial of the prosecution allegation and it is further asserted by the accused petitioners that they are innocent and out of political rivalry they have been falsely entangled in the case. 7. Learned trial Judge found the accused petitioners guilty of the charges framed against them and sentenced them to suffer SI for two years for commission of offence punishable under Section 147 of IPC, SI for one year for commission of offence punishable under Section 323 of IPC, SI for two years for commission of offence punishable under Section 427 of IPC and also SI for one year for commission of offence punishable under Section 506 of IPC and directed that all the sentences shall run consecutively. 8. Aggrieved, the accused petitioners preferred Criminal Appeal No. 15(3)/2007 in the Court of learned Addl. Sessions Judge Belonia and learned Addl. Sessions Judge by judgment dated 24.04.2008 only held the accused petitioners guilty of committing offence punishable under Sections 147 and 323 of IPC and sentenced them to suffer SI for two years under Sections 147 of IPC and SI for six months under Section 323 of IPC and directed that both the sentences shall run consecutively. 9. Aggrieved, the petitioners preferred the present revisional application. 10. Learned senior counsel, Mr. Biswas has submitted that two sets of stories surfaced in the evidence of prosecution witnesses. One group of witnesses stated that Congress (I) supporters from vehicles pelted brickbats and as a result some of the CPI(M) supporters got injured whereas another set of witnesses stated that the Congress(I) supporters destroyed posters, festoons and flags of CPI(M) party and pelted brickbats to the CPI(M) supporters and also assaulted them by 'lathi'. One group of witnesses stated that Congress (I) supporters from vehicles pelted brickbats and as a result some of the CPI(M) supporters got injured whereas another set of witnesses stated that the Congress(I) supporters destroyed posters, festoons and flags of CPI(M) party and pelted brickbats to the CPI(M) supporters and also assaulted them by 'lathi'. So, while two set of witnesses stated two set of stories--both are liable to be disbelieved. He has referred the decision of the apex Court in the case of Harchand Singh & Anr. v. State of Haryana reported in : AIR 1974 SC 344 . 11. Learned P.P., Mr. Ghosh on the other hand has submitted that the prosecution case is that 150/200 Congress (I) supporters boarding in 10/12 vehicles arrived at Nalua market and they destroyed flag, festoons, posters, etc. of CPI(M) party election campaign and by brickbats assaulted CPI(M) workers who suffered minor injuries for which they were treated in Nalua PHC and Belonia Sub-divisional Hospital. There is no two story stated by the witnesses. What the particular witness has found he stated it. So there is no question of disbelieving the witnesses as a whole and discarding their evidence on that ground. Learned P.P. therefore prayed for upholding the judgment and order of conviction and sentence passed by the Courts below. 12. On perusal of the evidence of PWs 1 to 7, it appears that supporters of Congress (I) political party numbering about 150/200 boarding in 10/12 vehicles arrived at Nalua market on 22.02.2003 at about 5.00/5.30 pm. They pelted brickbats from the vehicles and destroyed posters, festoons, flags, etc. of CPI(M) party. Regarding damage of posters, festoons, flags, etc. only PWs 1, 2 and 6 stated and the other eyewitnesses did not state about damage of posters, festoons, flags, etc. PWs 3, 4 and 5 only stated about throwing of brickbats from the vehicle as a result of which PWs 3, 5 and 6 were injured. The appellate Court as it appears carefully scrutinized the evidence and I find nothing to reject the observation of the appellate Court in respect of appreciation of evidence by the appellate Court. In the given facts of the case I find nothing to hold that two set of witnesses stated two stories and therefore the entire prosecution case is to be disbelieved. In the given facts of the case I find nothing to hold that two set of witnesses stated two stories and therefore the entire prosecution case is to be disbelieved. A huge number of Congress (I) supporters arrived in the market boarding in 10/12 vehicles and they pelted stones from the vehicles causing injuries of PWs 3, 5 and 6 and another and the injury of PWs 3, 5 and 6 has been proved by the evidence of PW 14. All of them suffered simple injuries. Such injuries may be caused because of pelting of brickbats. The story of assault by stick, etc. has not been proved. In the given facts and circumstances of the case I find no relevance on the decision referred by learned senior counsel, Mr. Biswas, i.e. the case of Harchand Singh (supra). That decision is totally on a different context and has got no bearing in the facts of the present case. In the FIR 19 accused persons were named but in the deposition of eyewitnesses the names of only six accused persons, i.e. the accused petitioners have been transpired. PW 1 identified accused petitioners, Sukhen Patari and Sankar Mahajan, PW 2 identified accused Balai Laskar, Sankar Mahajan and Priyatosh Podder, PWs 3, 4 and 5 could not identify any miscreants, PW 6 identified accused petitioner, Sukhen Patari, Priyatosh Podder, Balai Laskar, Sadhan Roy, Milan Bhowmik, Sankar Mahajan and Dilip Datta. On a very careful scrutiny of the evidence I find accused petitioners, Sankar Mahajan, Sukhen Patari, Balai Laskar were identified by two witnesses. Accused petitioner Sankar Mahajan was identified by three witnesses. Accused petitioners, Sadhan Roy and Milan Bhowmik were only identified by PW 6 and no other witnesses identified them. 13. A four Judges Bench of the Supreme Court in the case of Masalti v. State of Uttar Pradesh reported in : AIR 1965 SC 202 has observed that where a criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. In the present case, the accused petitioners, Sukhen Patari, Sankar Mahajan, Priyatosh Podder and Balai Laskar have been identified by two or more witnesses. The other two accused, Sadhan Roy and Milan Bhowmik have been identified by PW 6 and none else. While large number of accused persons participated in the incident and large number of eyewitnesses examined, identification of a particular accused only by one witness cannot give credence for conviction and therefore the accused petitioners, Sadhan Roy and Milan Bhowmik may be given the benefit of doubt and may be set at liberty. 14. Accused petitioners, Sukhen Patari, Sankar Mahajan, Priyatosh Podder and Balai Laskar, as I find, it is proved that they were in the unlawful assembly which pelted brickbats to the witnesses as a result of which PWs 3, 5 and 6 were injured. There is no evidence that they were armed with lethal weapons or that any of them assaulted any of the witnesses with any lethal weapon. Somebody from the vehicles pelted brickbats and as a result of which PWs 3, 5 and 6 got injury which has been proved. So, in the given facts and circumstances it was a fit case to give the accused petitioners the benefit of Section 4 of the Probation of the Offenders Act and I think such benefit should be given to the accused petitioners. Before giving the benefit of Probation of Offenders Act I think nature, character, habit and antecedents of the accused petitioners may be enquired by the Probation Officer, South Tripura, Belonia and a report may be sought from the Probation Officer before consideration of probation. 15. Accordingly, the judgment and order of conviction and sentence of accused Sadhan Roy and Milan Bhowmik is set aside. They are set at liberty. Accused petitioners, Sukhen Patari, Sankar Mahajan, Priyatosh Podder and Balai Laskar may be given the benefit of Probation of Offenders Act and so the Probation Officer, South Tripura, Belonia is directed to enquire about the nature, character, habit and antecedents of accused petitioners, Sukhen Patari, Sankar Mahajan, Priyatosh Podder and Balai Laskar and to submit a report in writing to this Court on or before 05.01.2015. Necessary order in respect of probation shall be passed after considering the report of the Probation Officer. 16. The criminal revisional application accordingly stands disposed of.