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Tripura High Court · body

2015 DIGILAW 168 (TRI)

Bimal Nama v. State of Tripura

2015-04-16

S.TALAPATRA

body2015
JUDGMENT 1. Heard Mr. P.K. Pal, learned counsel appearing for the appellants as well as Mr. R.C. Debnath learned Addl. Public Prosecutor appearing for the State. 2. This is an appeal under section 374(2) of the Cr.P.C., questioning the legality of the judgment of conviction dated 20.05.2014 delivered by the Addl. Sessions Judge, South Tripura, Belonia, in S.T.No.24(ST/B)/2013. 3. By the said judgment, Bimal Nama (the appellant No.1), Rajib Nama (the appellant No. 2) and Ratan Nama (appellant No.3) have been convicted for commission of offence punishable under Section 447 of the IPC and sentenced to suffer 2(two) months rigorous imprisonment. The appellant No.1 has also been convicted and sentenced to suffer rigorous imprisonment for 8(eight) years with fine of Rs. 3,000, in default of payment of fine, to suffer simple imprisonment for 3(three) months for committing the offence of culpable homicide, not amounting to murder, under Section 304, Part-II of the IPC. The remaining appellants have been convicted and sentenced to suffer 6(six) months rigorous imprisonment for committing the offence punishable under section 323 of the IPC. It has been provided that sentences shall run concurrently. 4. The genesis of the case is rooted in the oral ejahar filed by one of the victims, namely Siddhartha Nama from Hrishyamukh hospital on 05/09/2011 at 11.00 O’clock at night to PW.16, Shri Sankar Nag, the Officer-in-Charge of the Hrishyamukh Outpost. 5. PW1, Siddhartha Nama, disclosed in that oral ejahar that the appellants, holding axe and lathis in their hands, stormed inside the house of PW6, Benu Nama. But, at that time, PW6 was not at the house as he was working in a paddy-field 4 km. away from his house. Similarly, his son Siddhartha Nama (PW.1) was away for looking after their betel-leaf orchard situated in a stone-throw distance. It has been categorically asserted in the oral ejahar that the appellant No. 1, Bimal Nama was carrying the axe in his hand whereas the other two appellants were having lathis in their hands which were seized during the investigation, on preparing the seizure list in presence of the witnesses (Exbt.2). According to PW.1, the appellant No.1 hit his mother on the head with the axe, though it has been translated as the spade. When he rushed to her rescue along with his father, the appellants assaulted him with axe and lathi. According to PW.1, the appellant No.1 hit his mother on the head with the axe, though it has been translated as the spade. When he rushed to her rescue along with his father, the appellants assaulted him with axe and lathi. He has stated in the ejahar that Rajib and Ratan assaulted them. On their alarm, people from the neighbourhood rushed to the place of occurrence and by their help, his mother Swarnabala Nama was taken to the Hrishyamukh CHC, where at the advice of the Medical Officers, she was immediately taken to the Belonia District Hospital, wherefrom she was shifted to the GBP Hospital, Agartala, but, on the following day i.e. on 06/09/2011 she succumbed to those injuries. 6. The ejahar was filed on 05/09/2011 at 11 O’clock in the night. As a result, the case was registered in the Belonia Police Station as Belonia P.S. Case No. 152/2011, under Sections 447, 326, 327 and 34 of the IPC. Later on, by the leave of the court, Section 302 of the IPC was added and was investigated. 7. PWs. 16 and 17 investigated the case and filed the chargesheet against all the appellants. The charge was framed under Section 447 of the IPC, under Section 302 read with Section 34 of the IPC and under Section 307 read with Section 34 of the IPC, to which the appellants pleaded innocence and claimed to be tried. 8. To substantiate those charges, prosecution adduced as many as 18 witnesses including the Investigating Officer, the complainant and other witnesses who saw the transaction leading to severe injuries to Swarnabala Nama and PW.1. The prosecution has also introduced a few documentary evidence, being Exbt.1 to Exbt.9, which included the post mortem report of Swarnabala Nama and the injury report of PW.1. 9. On recording the prosecution evidence, the appellants were separately examined under section 313 of the Cr.P.C. for having their response to the incriminating materials which surfaced in the prosecution evidence and, thereafter, on hearing the submissions made by the counsel on behalf of the prosecution as well as the defence, by the impugned judgment, the appellants have been convicted as stated. Being aggrieved by that judgment of conviction, the present appeal has been filed. 10. Mr. Being aggrieved by that judgment of conviction, the present appeal has been filed. 10. Mr. P.K. Pal, learned counsel appearing for the appellants, has submitted that out of excitement which had been generated because of the quarrel between the children of both the farmers, the appellants, as it appears from the record of evidence, entered the premises of PWs. 6 and 7 and, suddenly gave a solitary blow on the head of the victim, Swarnabala Das and in a scuffle, PW.1 had also received some injuries. Mr. Pal, learned counsel has emphatically pointed out the discrepancies as surfaced in the testimony of PW.1, Siddhartha Nama vis-a-vis what he had disclosed in the oral ejahar. Mr. Pal, learned counsel has highlighted that in the ejahar, Siddhartha Nama has stated as under : “Then my father and I went ahead. Then Rajib Nama, S/O Kumud Nama and Ratan Nama, S/O Late Manmohan Nama, assaulted us with the staves that that were there in their hands. At the screams raised by us, people of the locality came forward and the accused persons went away in haste.” Mr. Pal, learned counsel has drawn attention to the statement of PW.1 made in the trial, where he has stated that : “Seeing the incident when I rushed to my mother to save her at that time accused Bimal Nama also gave blow by spade over my right arm and chest in left side. They assaulted us following issue of children quarrel. Due to assault over head of my mother, she sustained severe bleeding injury and lost her sense.” 11. Mr. Pal, learned counsel appearing for the appellants, has further submitted that what has been disclosed in the ejahar, has been deliberately omitted, as PW.1 is an interested witness. That apart, in the cross-examination, PW.1 has admitted that : “When my mother was assaulted that time I was in our betel leaf garden about 3 minutes walking distance from our house. On arrival in the house, I found my mother lying on the ground. My father also came behind me from betel leaf field”. This apparent contradiction, according to Mr. Pal, learned counsel, has demolished the credence of PW.1. He has simultaneously referred to the testimony of PW.6 who has also made a statement differing substantially from what has been stated by PW.1. My father also came behind me from betel leaf field”. This apparent contradiction, according to Mr. Pal, learned counsel, has demolished the credence of PW.1. He has simultaneously referred to the testimony of PW.6 who has also made a statement differing substantially from what has been stated by PW.1. PW.6 has stated in the trial that : “One day about two years ago at noon about 11 a.m., myself and my son Siddhartha Nama was working in our betel leaf garden and during working suddenly heard shouting towards our house, then went to our house and on arrival in the house, accused Bimal Name gave blow on the hand of my son Siddartha and other accused Rajib and Ratan assaulted him by lathi. I saw my wife lying on the ground. She sustained injuries on her head.” But, in the cross-examination, PW.6 has admitted as under : “I have seen the accused persons to flee away from our house. Siddartha arrived in the house about 5 minutes ahead of my arrival in the house. I have not seen to give blow on my wife or my son but seen the accused persons to flee away from my house.” Thus Mr. Pal, learned counsel has candidly submitted that even the testimony of PW.6 cannot be believed at all. 12. So far the testimonies of Smt. Rakhi Nama (PW.2), Smt. Anjana Nama (PW.3) and Smt. Jharna Nama (PW.4) are concerned, Mr. Pal, learned counsel has submitted that they are the related witnesses and on the basis of their statement the conviction may not be sustained. According to Mr. Pal, learned counsel, Dipak Nag (PW.5), Haradhan Sarkar (PW.7), Milan Das (PW.8) and Tushar Kanti Nama (PW.9) are the hearsay witnesses. 13. PW.10, Sankar Chandra Das is a witness to the inquest report, whereas PW.11, Basudeb Nama is the witness to the inquest procedure. 14. PW.12, Dr. Haripada Saha had requisitioned for the post mortem examination over the dead-body of Swarnabala Nama. 15. PW.13, Dr. Satyakam Chakraborty treated Siddartha Nama (PW.1) in the Hrishyamukh CHC. According to him, he found the following injuries : “1) cut injury 0.5 cm x 3 cm lateral aspect of mid part of the right arm, 2) 03 nos. abrasion over the side of chest wall around the left nipple and 3) abrasion over posterior aspect of the left elbow joint. All the injuries were simple in nature. According to him, he found the following injuries : “1) cut injury 0.5 cm x 3 cm lateral aspect of mid part of the right arm, 2) 03 nos. abrasion over the side of chest wall around the left nipple and 3) abrasion over posterior aspect of the left elbow joint. All the injuries were simple in nature. The cut injury found on his body may be caused by sharp cutting edged object and other abrasion injuries may be caused by rough surface or object.” PW.13 has also observed that, on 05.09.2011, PW.1 was admitted in the Hrishyamukh CHC and he was discharged on the following day i.e. on 06.09.2011. He has introduced the injury report in the evidence, as Exbt.5. 16. PW.14, Dr. Pradipta Narayan Chakraborty was one of the Medical Officers who conducted the post mortem examination on the dead-body of Swarnabala Nama in the GBP Hospital morgue. He has narrated in the trial what was the outcome of the said post mortem examination, which may be extracted hereunder : “During examination of the dead body, I found external injury i.e. a stitch lacerated wound measuring 7.5cm X 1.5 cm X bone deep on the centre of vault of the skull, placed transversely which was 13 cm above the supraorbital ridges. After dissection of the scalp I found diffused haematoma in the deeper layers of the scalp in right temporal, parietal and occipital region spreading over an area of the 11 cm X 8 cm, (ii) fissured fracture 6 cm in length was present transversely and present underneath. The lacerated wound on both the parietal bones, (iii) extradural blood clot was present on right temporo parietal region over an area of 12 m X 5 cm maninges were plain cut underneath the haemorrhage. Subdural and subarachnoid haemorrhage present on right side of frontal and parietal region. (iv) brain matter was lacerated on right parietal region measuring 5 cm X 4 cm 1 cm associated with intracerebral haemorrhage around the wound. After conducting post mortem over the dead body in my opinion the cause of death deceased was coma resulting from head injury which was caused by the impact of moderately heavy blunt weapon and was sufficient to cause death in ordinary course of nature. All the injuries were anti mortem in nature and about 30/40 hours in duration. Myself and Dr. Ranjit Kr. All the injuries were anti mortem in nature and about 30/40 hours in duration. Myself and Dr. Ranjit Kr. Das, jointly conducted post mortem and prepared the report on which myself and Mr. R.K. Das also signed. This is the report which we have prepared jointly, but I have written and we both signed on it. The post mortem in whole is marked Exbt.6.” In the cross-examination, PW.14 has also stated that the weapon that had been used was moderately blunt. 17. PW.15, Amal Kanti Pal has stated nothing material to the prosecution case. 18. PW.16, Sankar Nag was the Officer In-charge of the Hrishyamukh Out Post at the relevant point of time. He had conducted the investigation for the substantial part and narrated how he had recorded the ejahar and obtained the signature of PW.11 over it. Thereafter, the Officer In-charge of the Belonia police station, registered the case as Belonia P.S. Case No.152/2011 under Sections 447, 326, 307 and 34 of the IPC. In the course of investigation, he visited the place of occurrence, prepared the hand sketch map with index and recorded the statements of the witnesses. As he was transferred from his place of posting, the remaining part of the investigation was conducted by PW.17, Sahadeb Das, who had filed the chargesheet against the appellants. 19. PW.18, Smt. Sandhya Rani Debbarma, an Assistant Sub-Inspector of Police, attached to the GBT Out Post, conducted the inquest procedure and has introduced in the evidence the inquest report (Exbt.11). 20. It thus appears that Mr. Pal, learned counsel appearing for the appellants is substantially correct when he has stated that much reliance cannot be placed on PW.1 and PW.6. But, in the criminal jurisprudence the doctrine of falsus in uno falsus in omnibus has not been given blanket recognition. This court is not expected to throw away the entire testimonies of those witnesses. There cannot be any differing opinion in this regard. Credence of those two witnesses (PW1 and PW.6) has been substantially demolished but, the testimonies of PWs.2, 3 and 4 cannot be washed away. 21. PW.2, Smt. Rakhi Nama has stated in the trial that, on 05.09.2011 at about 12.30/1.00 p.m. the appellant Bimal Nama armed with axe (translated as ‘spade’) and being accompanied with Rajib and Ratan with lathis in their hand, entered their house. 21. PW.2, Smt. Rakhi Nama has stated in the trial that, on 05.09.2011 at about 12.30/1.00 p.m. the appellant Bimal Nama armed with axe (translated as ‘spade’) and being accompanied with Rajib and Ratan with lathis in their hand, entered their house. She has specifically stated that Bimal gave blow by spade on the head of her mother-in-law Swarnabala Nama and other accused persons Ratan and Rajib assaulted her by lathis. As a result, she fell down on the ground. Even thereafter, the accused persons assaulted her mother-in-law. On hearing shouting, when her husband (PW.1) immediately rushed to the house from the betel leaf field, Bimal gave blow over his right hand and chest and other accused persons also assaulted him by lathis. Due to assault, he received severe bleeding injuries. With the help of the local people both her mother-in-law and her husband were shifted to the Hrishyamukh CHC but, her mother-in-law died in the GBP Hospital on following day. She stood as the witness to the seizure and identified the seizure materials as well as her signature on the seizure list (Exbt.2). She has categorically stated that, she was there when the occurrence took place, alongwith her other sisters-in-law, namely Smt. Jharna Nama and Smt. Anjana Nama. 22. PW.3, Smt. Anjana Nama has stated that on the issue of a “children quarrel”, Bimal, Rajib and Ratan entered their house and at that time Bimal dealt a blow on the head of her mother-in-law by a spade/axe. According to her, the other accused persons had assaulted her by lathi. After hearing shout from their house, when Siddhartha rushed to the place of occurrence, Bimal gave blow by the axe/spade on his hand and chest. Thereafter, they were shifted to the hospital. Ultimately her mother-in-law died in the GBP Hospital. 23. PW.4, Smt. Jharna Nama, one of the vital witnesses, who supported the prosecution case, has stated that Bimal had a spade/axe in his hand and other accused persons were armed with lathis. Bimal gave blow by the spade/axe on the head of her mother-in-law and other accused persons also assaulted her mother-in-law and as a result, she fell down on the ground on receiving injuries. When they started crying out, Siddhartha appeared in the place of occurrence and Bimal gave a blow on his hand and other accused persons also assaulted him by lathis. When they started crying out, Siddhartha appeared in the place of occurrence and Bimal gave a blow on his hand and other accused persons also assaulted him by lathis. Thereafter, both the injured persons i.e. her mother-in-law and brother-in-law, were taken to the Hrishyamukh CHC, wherefrom her mother-in-law was shifted firstly to the Belonia hospital and thereafter to the GBP hospital. Unfortunately, her mother-in-law died in the G.B. Hospital on the following day. She has admitted that following a quarrel of children, accused persons had assaulted her mother-in-law and brother-in-law. Even in the cross-examination, no materials could be elicited by the defence. 24. Now, this court has to see whether the judgment of conviction requires to be interfered by this court on the grounds of objection as raised by the appellants. 25. After going through the testimonies, both oral and documentary, this court has no hesitation to hold that the trial court has correctly held that this is not a case of culpable homicide amounting to murder and the trial court has not committed any error by acquitting the appellants from the charge under Section 302 read with Section 34 of the IPC. Similarly, there is no error in returning the finding of conviction against all the appellants under section 447 of the IPC as it has come to the fore from appreciation of the testimonies of the witnesses that all the appellants raided the house of PW.6 for commission of offence. Even though such raid may have live link with “certain issues” which might have excited the appellants. Even the judgment of conviction under Section 323 of the IPC cannot be interfered with inasmuch as the statements of PWs.1, 2, 3 and 4 are not in incongruity about the assault on PW.1. Even the injury report has proved that aspect independently. 26. In the backdrop, this court has to find out whether the conviction as returned by the trial court under section 304 Part II of the IPC is justified or not. This Court has found on appreciation of the evidence that, the appellant No.1 had no intention to cause death of Swarnabala Nama and he had given a single blow, though on the very vital part of the human body. The prosecution has successfully established beyond all shred of doubt that it is for that solitary blow Swarnabala Nama died. This Court has found on appreciation of the evidence that, the appellant No.1 had no intention to cause death of Swarnabala Nama and he had given a single blow, though on the very vital part of the human body. The prosecution has successfully established beyond all shred of doubt that it is for that solitary blow Swarnabala Nama died. As a result, the said finding of conviction for commission of offence punishable under Section 304 Part II of the IPC, cannot be faulted with. This court has keenly observed that, PW.1 has stated in his oral ejahar that Rajib Nama and Ratan Nama assaulted him with lathis carried by them, but nowhere has he stated that there had been any involvement of the appellants but, in the statement made in the trial he has stated that Bimal gave him blow by the axe/spade over his right hand. The defence could not take advantage of the said statement which stands contrary to what has been stated in the oral ejahar. An endeavour was taken to record the contradiction. It is available from the cross-examination that no such statement he could find out from his previous statement to the effect that Bimal gave him a blow. But, PW.1 has categorically stated that they made such statements to the Investigating Officer. But, the defence did not place such statement for confirmation by the Investigating Officer and they left such statement at large and, as such, the liability saddled by law under Section 145 of the Evidence Act, has not been discharged. As such, such contradiction cannot be appreciated by this court. 27. PW.2 Rakhi Nama has stated that Bimal gave blow over PW.1’s right hand and other accused persons also assaulted him by lathi. Similarly, PWs.3 and 4 have also stated in the same manner that the other accused persons had assaulted PW.1. Therefore, assault by lathis and axe (spade, as translated) by the accused persons has been proved by the prosecution beyond reasonable doubt. Even the role of Bimal cannot be excluded on the face of such statement made by PWs.2, 3 and 4 in the trial. 28. Thus, this Court is of the considered opinion that there is no illegality or infirmity in the impugned judgment. Even the role of Bimal cannot be excluded on the face of such statement made by PWs.2, 3 and 4 in the trial. 28. Thus, this Court is of the considered opinion that there is no illegality or infirmity in the impugned judgment. However, on considering the age of the appellants and the circumstances under which they had committed the crime, this Court is of the view that the sentence as given under Section 304, Part-II of the IPC is required to be interfered with. Accordingly, the sentence under Section 304, Part-IIB is reduced to 5(five) years rigorous imprisonment with fine of Rs. 3,000 (rupees three thousand), in default to suffer simple imprisonment for further 3(three) months. Sentences are to run concurrently as directed by the trial court. 29. Having held thus, this appeal fails and accordingly it is dismissed, subject to the modifications with regard to the sentence as above. Send down the LCRs forthwith.