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2018 DIGILAW 85 (TRI)

Biplab Malakar s/o Lt. Upendra Malakar v. State of Tripura

2018-03-23

S.TALAPATRA

body2018
JUDGMENT & ORDER : 1. Heard Ms B Chakraborty, learned legal-aid-counsel appearing for the petitioner as well as Mr. RC Debnath, learned Addl. PP appearing for the State. 2. This revision petition, filed under Section 397 read with Section 401 of the CrPC, is directed against the judgment and order of conviction and sentence dated 07.07.2014 as initially delivered in GR 172/2013 by the Sub-Divisional Judicial Magistrate, Kanchanpur, North Tripura and subsequently affirmed by the judgment dated 25.06.2015 delivered in Criminal Appeal No. 26/2014 by the Sessions Judge, North Tripura, Dharmanagar, however, with reduction in the sentence. 3. By the order dated 09.07.2014 delivered in GR 172/2013, the petitioner was sentenced to suffer two years rigorous imprisonment with fine of Rs.10,000/- i.d. to suffer 4 months simple imprisonment for commission of offence punishable under Section 457/380/323 of the IPC. This sentence is aggregate of sentences as the petitioner was sentenced to suffer 1 year rigorous imprisonment with fine of Rs.5,000/-, i.d. to suffer 2 months simple imprisonment for commission of offence punishable under Section 457 of the IPC and to suffer 6 months rigorous imprisonment and fine of Rs.5,000/-, i.d. to suffer another 2 months simple imprisonment for commission of offence punishable under Section 380 of the IPC. That apart, the petitioner has been sentenced to suffer 6 months rigorous imprisonment for commission of offence punishable under Section 323 of IPC. 4. The appellate court, i.e. the Court of Sessions Judge, North Tripura, Dharmanagar has even though affirmed the judgment of conviction but interfered with the sentence. The sentence so imposed on the petitioner under Section 323 and 380 IPC was upheld but the sentence under Section 457 of the IPC was set aside as by the impugned judgment observing that the said offence under Section 457 was not established, but an offence punishable under Section 448 of the IPC has been established. Thus, the petitioner has been sentenced to suffer RI for one year and to pay a fine of Rs.1,000/- i.d. to suffer simple imprisonment for one month. 5. Ms B Chakraborty, learned legal-aid counsel has submitted that both the trial court and the appellate court have committed serious error of law while appreciating the evidence relating to identification of the accused petitioner. 5. Ms B Chakraborty, learned legal-aid counsel has submitted that both the trial court and the appellate court have committed serious error of law while appreciating the evidence relating to identification of the accused petitioner. The accused’s presence in the place of occurrence was sought to be proved by dint of a “torn shirt” which was seized by the Investigating Officer, but the said Investigating Officer in trial has categorically stated that the shirt which was seized by him was not at all torn. 6. Further, the victim has stated that the accused petitioner had entered into their kitchen by breaking their mud wall but the IO has categorically stated that he could not find any marks or scratch on the mud wall to infer that there was attempt to break the wall to enter into the kitchen. 7. Having perused the evidence, this Court finds that when the testimonies are so overwhelming, the minor discrepancies here and there as pointed out by Ms B Chakraborty cannot be given any extra-weightage to reduce the probative value of the evidence led by the prosecution. However, Ms Chakraborty, learned counsel has submitted that the petitioner has already suffered detention of 8 months and 5 days. 8. This Court is of the view that the sentence may further be reduced, having due regard to the transactional circumstances of the offence and the age of the victim. Thus, the sentence is modified in the following way: The petitioner is sentenced to suffer six months RI and pay a fine of Rs.1,000/- i.d. to suffer 15 days SI for commission of offence punishable under Section 380 IPC. Further, the petitioner is sentenced to suffer six months RI for commission of offence punishable under Section 323 of the IPC. As this Court has affirmed the conviction under the altered charge under Section 448 of the IPC, the sentence as imposed under Section 448 of the IPC is reduced to RI for six months with a fine of Rs.1,000/-, i.d. to suffer SI for 15 days. The sentences shall run concurrently. 9. What has been surfaced from the records, the petitioner has suffered the sentence as imposed by this order. As the petitioner is on bail, the sureties are discharged from their respective obligations. 10. In the result, this revision petition is partly allowed. Send down the LCRs forthwith.