Research › Search › Judgment

Tripura High Court · body

2015 DIGILAW 312 (TRI)

Babul Nath v. State of Tripura

2015-06-03

S.TALAPATRA, U.B.SAHA

body2015
JUDGEMENT S. Talapatra, J. Heard Mr. A.Bhowmik, learned counsel appearing for the appellants as well as Mr. R.C. Debnath, learned Additional Public Prosecutor appearing for the State. 2. On the basis of a complaint filed in the court of Sub Divisional Judicial Magistrate, Dharmanagar, North Tripura a reference was made under Section 156(3) of the Code of Criminal Procedure, and as sequel thereof a case was registered vide Dharmanagar Police Station case No. 17 of 2010 under Sections 325/379/34 of the IPC. 3. From the bare reading of the complaint, it appears that the complainant namely Smt. Anima Nath (PW-1) apprehended that the accused persons had assaulted “her husband” on 28.01.2010 causing the critical illness and her husband had to be taken to their house “in an unconscious state”. According to her, the conduct of the persons who transported her husband to her house was suspicious. However, the injured was immediately taken to Dharmanagar hospital. It also appears from the record that later on the injured was taken to Silchar Medical College and he was treated there for a few days and on the way back to Dharmanagar he died on the road. Thereafter, the post mortem examination etc. was carried out. 4. The Investigating Officer prayed for adding Section 302 of the IPC for death of the husband of the informant namely Nanigopal Debnath @ Nani Nath. After the investigation was complete the final police report charge sheeting the appellants was filed under Section 302 of the IPC. The police papers having been committed after the cognizance was taken for the offence under Section 302 of the IPC, the Additional Sessions Judge, North Tripura, Dharmanagar framed the charge under Section 302 of the IPC read with Section 34 of the IPC to which the appellants pleaded not guilty and claimed to face the trial. 5. To substantiate the charge, the prosecution adduced as many as 17 witnesses including the informant, the doctor who examined the injured at Dharmanagar hospital and the Investigating Officer. In addition to the oral evidence, 7 documentary evidence including the inquest report, the post mortem examination report and the injury report along with the complaint which was later on registered as First Information Report were introduced in the evidence. 6. In addition to the oral evidence, 7 documentary evidence including the inquest report, the post mortem examination report and the injury report along with the complaint which was later on registered as First Information Report were introduced in the evidence. 6. Having purportedly appreciated the evidences on record, by the impugned judgment, the trial Court returned the finding of conviction under Section 304 Part II / 34 of the IPC and sentenced the appellants to suffer rigorous imprisonment for 10 years with fine of Rs.5,000/- each with default sentence of 6 months rigorous imprisonment. Being aggrieved, the appellants preferred this appeal. 7. Mr. A. Bhowmik, learned counsel appearing for the appellants has categorically made a statement that there is no evidence of homicide, rather it has surfaced that as fall out of an accidental injury the deceased died. On the other side, Mr. R.C. Debnath, learned Public Prosecutor appearing for the State has fairly submitted that the prosecution could not succeed in placing the evidences to prove the charge of Section 304 Part II / 34 of the IPC beyond reasonable doubt. 8. PW-1, Anima Nath, the informant has stated that her husband went to the house of the appellants to attend a house warming party on 28.01.2010 but did not return on that night. On the following day one Amit Pal, the younger son of Babul Nath, one of the appellants, transported her husband in “an unconscious state” with “serious bleeding injury in different parts of his body” by an auto rickshaw. But she did not state of ‘injury’ in the trial. She has stated in the trial that after taking Prasad, her husband remained there at the request of Chitta Nath and Babul Nath, the appellants and on the following morning her husband was transported to their house in a critical condition but she has relented to state that he came back to the residence with “serious bleeding injuries”. Her husband was taken immediately to Dharmanagar hospital but since the condition did not improve, he was taken to Silchar Medical College where he was treated for 10/12 days. Being discharged from that hospital when her husband was being taken back to Dharmanagar, on the way he expired. In the cross examination, she has stated that her idea was that “the said persons caused death of my husband by assault”. Her husband was unable to speak. Being discharged from that hospital when her husband was being taken back to Dharmanagar, on the way he expired. In the cross examination, she has stated that her idea was that “the said persons caused death of my husband by assault”. Her husband was unable to speak. As he had no sense on her asking her husband could not say what resulted in such condition. She has further stated that there was no enmity or quarrel between her husband and the accused persons. 9. PW-2, Arjun Debnath is the elder brother of PW-1. He is a hearsay witness but he has laid apparently very important fact in the cross examination that at Silchar the victim spoke to his sister and told “who assaulted him. I stated to police that Amit fled away and auto driver and son of Babul Nath tried to run away but they were detained by public”. But no such statement was made available when he was shown his previous statement recorded under Section 161 of the Cr.P.C. 10. PW-3, Krishna Mohan Debnath did not place any material of importance. 11. PW-4, Pranay Nath has made a statement that the victim told him that Chitta Nath, one of the appellants assaulted him when he asked him how he got the injuries in Silchar Medical College. He has stated in the cross examination that in his previous statement there appeared no such statement but he had stated so “in the form of soliloquy.” 12. PW-5, Dr. Pradyut Sen, is a vital witness for appreciating the circumstances and for that purpose his statement is entirely extracted here under- “On 29-01-10 I was posted as medical officer at Dharmanagar hospital. On that day one patient namely Nani Nath aged about 37 years was brought with complain of unable to move lower limbs from morning of that day. Patient party gave the history that the patient consumed huge amount of alcohol on the previous night and fell down from the cot. On examination the patient was conscious, cooperative and spoke nicely. B.P. Pulse was within normal limits. Chest was clear and there was no tenderness. Abdomen was normal. No tenderness was there in any part of the body and there was no external injury but the patient was unable to move his lower limbs. On examination the patient was conscious, cooperative and spoke nicely. B.P. Pulse was within normal limits. Chest was clear and there was no tenderness. Abdomen was normal. No tenderness was there in any part of the body and there was no external injury but the patient was unable to move his lower limbs. Sensory function of the lower limbs was within normal limits and motor function of the lower limbs was grade zero. Provisional Diagnosis was G.B. Syndrome (Gullen Berri Syndrome). Advise was given to shift the patient to better institution at the time of admission. His brother Sri Makhan Debnath was advised to take him to AGMC, Agartala for better investigation and treatment. This is my report written by me and marked as exbt.2.” 13. PW-6, Prasenjit Nath did not state anything of material importance. 14. PW-7, Aparna Nath has stated that when she was at Silchar at that time one day the victim told her and her brother-in-law namely Pranay Nath that “Chitta Nath and Babul Nath assaulted” him but such statement was not found borne in her previous statement recorded by the police under Section 161 of the Cr.P.C. when she was confronted in this regard. 15. PW-8, Manik Debnath has given an information which is very relevant for appreciating the circumstance relevant in the context. He has stated in the trial that son of Babul Nath namely Bappa rang him and told that Nani Nath was unable to move from the bed and asked him to come and take him, but in the hospital in Silchar the victim told him that Chitta had assaulted him. But he has admitted in the cross examination that he did not state to the Investigating Officer that the victim stated him that Chitta assaulted him. 16. PW-9, Ajoy Shil did not state anything of material importance but he has stated that he heard that one person died consuming alcohol. 17. PW-10, Sita Rani Nath did not state anything of material importance. 18. PW-11, Sujit kumar Nath is the auto driver who transported the victim. He has categorically stated that when he transported the victim he was under influence of alcohol and he was wearing a half pant and he was unable to move. 19. PW-12, Ajit Paul has also stated that he heard that the victim died of consumption of alcohol. 20. PW-11, Sujit kumar Nath is the auto driver who transported the victim. He has categorically stated that when he transported the victim he was under influence of alcohol and he was wearing a half pant and he was unable to move. 19. PW-12, Ajit Paul has also stated that he heard that the victim died of consumption of alcohol. 20. PW-13, Rajarshi Debnath, wrote the complaint for the informant, PW-1. 21. PW-14 Beauty Paul was tendered by the prosecution and was not cross examined by the defence. 22. PW-15, Ashim Paul, did not state anything of material importance. 23. PW-16, Debabrata Debnath is the medical officer who conducted the post mortem examination along with Dr. Atanu Sinha. He introduced the post mortem examination report and stated in the trial that the cause of death was “asphyxia due to injury to the spinal cord at the level of C5-C6 leading to respiratory failure” and he has admitted in the cross examination as under: “It is not mentioned in the PM report whether the death was homicidal, accidental or suicidal. There was ulcerative wound over the sacral region measuring 4 inch x 3 inch which is called bed seal. This injury was not the cause of death”. 24. PW-17, Rana Chatterjee was the Investigating Officer who conducted the investigation and he has narrated how he completed the investigation by recording the statements, preparing the hand sketch map, collecting various reports including the injury report, the post mortem report and the inquest report. He did not reveal anything more. 25. From the inquest report, it appears that except that bed seal mark there was no other injury on the person of the deceased. The witness’s opinions, as recorded in the inquest report, again debunked the theory of the cause of death from “bleeding injuries”. The police officer who conducted the inquest procedure has given a tentative opinion on the basis of the report that the victim fell unconscious for the GB syndrome. From the injury report (Exhibit-2), it appears that the patient consumed alcohol of huge quantity and fell down from the cot and that history was narrated to the doctor definitely by PW-1 or by the victim himself. Most importantly, it is recorded in his injury report that the patient was conscious, co-operative and speaking freely. From the post mortem report, except the mark of bed seal, no external injuries were found. Most importantly, it is recorded in his injury report that the patient was conscious, co-operative and speaking freely. From the post mortem report, except the mark of bed seal, no external injuries were found. 26. The prosecution did not introduce in the evidence any treatment record for 10/12 days that the victim had undergone in the Silchar Medical College. What happened during that medical investigation, the trial court was not apprised of by placing any evidence. 27. We do not find any reason to disbelieve PW-5 who has categorically stated that the victim was conscious and was speaking freely and PW-5 has further stated that the victim consumed alcohol excessively and fell down from the cot. The injury, as indicated by doctor may occur in falling down or in the journey to Silchar or back to Dharmanagar. In this regard, there was no investigation or inquiry at all. Rather in the tentative opinion of PW-5, the victim was suffering from GB syndrome and that is why for better treatment, he advised the relatives to take him to the GBP hospital, Agartala but they had taken the victim to Silchar Medical College for better treatment but the treatment records are not placed before the trial court. Even we do not know what the opinion was of the doctor who examined the patient in Silchar Medical College. Even PW-16 Dr. Debabrata Nath, who conducted the post mortem examination did not categorically state whether the death is homicidal in nature or not. 28. PW1, PW2, PW-4, PW-7 and PW-8 all have stated that the victim was not in a state of consciousness to speak at the initial stage but only spoke at Silchar Medical College. But the statement as regards the assault is not supported by the medical evidence. Moreover, the statement of PW-5 is not only relevant as of an expert but as a witness who witnessed certain parts of the transaction independently. He has categorically stated that the victim was freely speaking at the time when he was brought to Dharmanagar hospital but the victim did not state to him or to any of the witnesses at that relevant point of time that he was assaulted by any one of the appellants or by both of them. He has categorically stated that the victim was freely speaking at the time when he was brought to Dharmanagar hospital but the victim did not state to him or to any of the witnesses at that relevant point of time that he was assaulted by any one of the appellants or by both of them. PW-8 has also stated that son of Babul Nath namely Bappa informed him that the victim was unable to move from bed and he requested him to come at their place. So, there was information regarding ‘illness’ of the victim to one of the closest relation. Strangely, Bappa has not been examined during the trial. From scrutiny of the entire evidence, we are of the opinion that there is no convincing evidentiary element to show that there was an incident of homicide. 29. Having held so, we are of the considered opinion that even the charge under Section 304 Part II of the IPC has not been established by the prosecution beyond reasonable doubt and as such the appellants are entitled to get the benefit. Hence, the appellants are acquitted from the charge on benefit of doubt. 30. In the result, this appeal stands allowed. Since the appellants are on bail, their sureties are discharged from the obligation. 31. Send down the LCRs.