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2020 DIGILAW 113 (TRI)

Parimal Debnath v. State of Tripura

2020-09-29

S.TALAPATRA

body2020
JUDGMENT : S. Talapatra, J. 1. Heard Mr. J. Majumder, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Addl. PP appearing for the state. 2. This court is really disturbed to note from the oral report of Mr. S. Ghosh, learned Addl. PP that before the appeal could be heard on merit, the appellant has suffered the full sentence and he has been released from the jail. But, the counsel for the appellant has insisted that the appeal be disposed of on merit, so that the appellant may come clean of the stigma of perpetrating culpable homicide of his own brother. 3. The appellant was charged under Section 302 of the IPC for causing grievous hurt leading to death of one Nirmal Debnath. By means of a spade on 20.05.2012 at about 2 pm at Halahali under Kamalpur Police Station, the appellant did cause the said hurt. Finally, out of the same injury, the victim died on 22.05.2012 at 2.20 am. The appellant had pleaded innocence and claimed to be tried in accordance with law. By the judgment dated 07.11.2013 delivered in Sessions Trial (NT/KMP) 44 of 2012 by the Additional Sessions Judge, North Tripura Judicial District, Kamalpur, the appellant has been convicted under Section 304, Part-II of the IPC on observing that the clinching evidence has surfaced to conclude that the deceased, Nirmal Debnath, died due to injuries sustained on his head and those injuries were caused singularly by the accused, Parimal Debnath dealing blows on his head by a spade in the paddy field. Thus, the case of culpable homicide has been proved against the accused beyond all reasonable shadow of doubt. It has been also observed that since the appellant did not have any intention to kill the deceased, it would not come under the provision of Section 302 of the IPC, but it would fall under Exception 4 of Section 300 of the IPC and as such, the trial judge has convicted the appellant under Section 304 Part-II of the IPC. 4. Pursuant to the said judgment of conviction, the appellant has been sentenced to suffer rigorous imprisonment for eight years and to pay fine of Rs. 50,000/- with default stipulation. The said judgment of conviction and order of sentence have been challenged in this appeal. 5. 4. Pursuant to the said judgment of conviction, the appellant has been sentenced to suffer rigorous imprisonment for eight years and to pay fine of Rs. 50,000/- with default stipulation. The said judgment of conviction and order of sentence have been challenged in this appeal. 5. The genesis of the prosecution against the appellant is located in the written ejahar (Exbt.-2) filed by father-in-law of the injured (at the filing of the ejahar, Nirmal Debnath was fighting for his life in the hospital), namely Shri Subal Debnath (PW-1) on 21.05.2012 to the Officer-in-Charge, Kamalpur Police Station by revealing that on 20.05.2012 at about 2 o' clock in the noon, Parimal Debnath (the appellant) hit his son-in-law namely Nirmal Debnath by back portion of a spade when they were engaged in dispute relating to the family land. On sustaining severe injuries, Nirmal Debnath fell on the ground and the local people took him to the BSM Hospital at Kamalpur for his treatment. On the basis of the said complaint, Kamalpur PS Case No. 68/12 was registered under Section 326 of the IPC on 21.05.2012. On the following day, since the victim had succumbed to the injuries, by leave granted by the concerned court, the investigation was directed for commission of offence punishable under Section 302 of the IPC. 6. On completion of the investigation, the final police report was filed chargesheeting the petitioner under Section 302 of the IPC. Since the case was exclusively triable by the court of Sessions, the police papers were committed to the jurisdictional court for trial. Against the appellant, the charge was framed as stated and he pleaded not guilty. 7. In order to substantiate the charge, as many as twelve witnesses were examined by the prosecution and at the instance of the court, one witness namely, Dr. Chandan Debbarma was examined. That apart, eight documentary evidence (Exbts.-1-8) including the post mortem examination report (Exbt.-5), Medical examination report (Exbt.-6) and the inquest report (Exbt.-8) were admitted in the evidence. That apart, at the instance of the court, Exbt.-C1 and C2, respectively bed head ticket of the deceased and the referral-cum-discharge certificate of the deceased were admitted in the evidence. 8. After recording the prosecution evidence, the appellant was examined under Section 313(1)(b) of the CrPC when he has denied the prosecution case as fabricated and provided his version of the case. 8. After recording the prosecution evidence, the appellant was examined under Section 313(1)(b) of the CrPC when he has denied the prosecution case as fabricated and provided his version of the case. According to him, the deceased was catching fish in the drain jointly owned by the appellant and the deceased and when he raised objection out of fear, he ran away and struck with a tractor which was parked not far away and got the serious injuries. But no evidence has been adduced by him to prove his case. After appreciation of the evidence, the trial court returned the said finding of conviction which has been challenged by the appellant. 9. Mr. J. Majumder, learned counsel appearing for the petitioner has submitted that the entire prosecution case is based on the testimonies of PWs 2 and 5. PW-2 being the wife of the deceased has claimed that when she did reach to the paddy filed carrying the drinking water for her husband (the deceased), she saw the appellant striking blow by the spade on the head of her husband. Her husband fell down on the ground failing to bear the impact. Seeing the occurrence, she had lost her sense. Later on, people from the neighbourhood came and took her husband to the hospitals, where he succumbed to the injuries. PW-5 has stated of the same transaction of the offence in the same manner. 10. Mr. Majumder, learned counsel has quite strenuously submitted before us that these two witnesses' presence in the place of occurrence is per chance and therefore, their evidence has to be scrutinized with extra amount of caution. Mr. Majumder, learned counsel has further submitted that the version of the appellant was not given due weight by the trial judge. Even, if the hand sketch map as prepared by the investigating officer, (PW-8), does not reflect existence of any drain between the paddy fields. That shows that the investigation 'was not fair'. Mr. Majumder, learned counsel has raised an objection relating to the credit worthiness of the testimony of PW-2, as according to him PW-2 was examined by PW-10, the second investigating officer on 06.07.2012 and such statement cannot be straightway accepted in the evidence without explanation from the investigating officer why the said statement under Section 161 was recorded by the investigating officer after such a long time. But on scrutiny, it has been found that the first investigating officer had examined PW-2 on the following day of the occurrence. Hence, that objection does not hold much substance. Mr. Majumder, learned counsel did not as well insist on that objection. 11. Mr. Majumder, learned counsel has fairly submitted that the injuries as claimed to have been received by the deceased have been duly proved by PW-9 who had conducted the post mortem examination. Even CW-1, who has been summoned by the court to admit the bed head ticket has stated that the deceased was admitted with the history of head injury "after physical assault". As per the bed-head ticket, Dr. Subhajit Das who had treated the deceased in the BSM Hospital, Kamalpur has testified that the patient was conscious, BP was 150/90, pulse rate was 80, one lacerated injury measuring 6 cm x 1 cm was on the parietal region of the head and another lacerated injury measuring 3 cm and 1 cm was on the scalp. The lacerated injury measuring 4 cm x 1 cm was also on the scalp at temporal region. Both the eyes of the said patient was encircled with blackish colour as a result of any blunt force impact on the eyes. Mr. Majumder, learned counsel has submitted that over all scrutiny of the evidence would show that there is significant incongruity between the testimonies of PWs 2 and 5. Therefore, benefit must be extended to the appellant. 12. Mr. S. Ghosh, learned Addl. PP appearing for the state has submitted that the trial judge has considered all traits of the evidence and found that the prosecution has established the charge beyond all reasonable doubt and thus the conviction does not warrant any interference from this court. In respect of the objections raised by the counsel for the appellant, Mr. Ghosh, learned Addl. PP, has submitted that the version that has been introduced by the appellant was not proved, and as such the trial court had no occasion to include that piece of the statement in the gamut of evidence. Mr. Ghosh, learned Addl. PP has submitted that the statement made under Section 313(1)(b) of the CrPC, by itself is not an evidence because such statement is not recorded under oath. Mr. Ghosh, learned Addl. PP has submitted that the statement made under Section 313(1)(b) of the CrPC, by itself is not an evidence because such statement is not recorded under oath. No evidence has been placed by the appellant in his defence and the trial was not under duty to consider whatever the appellant had said in the examination, carried out under Section 313(1)(b) of the CrPC. 13. Fundamental object of the examination under Section 313(1)(b) of the CrPC is to have the response on the incriminating materials, as a measure of observing the principle of natural justice, but the law is well settled, the response does not form the evidence. 14. For appreciating the submission as advanced by the counsel appearing for the respective parties, it appears apposite for this court to make a short of survey of the evidence as recorded in the trial. 15. PW-1, Shri Subal Debnath, who lodged the information, was not the eye witness. But, he has testified in the trial that one Pankaj Shil (PW-6) informed him that the appellant had assaulted his son-in-law, Nirmal Debnath and for the said assault, he sustained grievous injuries. Pankaj Shil had also informed him that injured Nirmal had been taken to Kamalpur Hospital. PW-1 and his son Shankar escorted the injured to the GBP hospital at Agartala where he breathed his last on the following day. When he came to know that no information has been lodged with the police, he filed the written ejahar to the Officer-in-Charge of Kamalpur police station. He has stated in the cross examination that one Kamalesh Deb, not examined in the trial, had written his ejahar. On the cross-examination, nothing material could be extracted from PW-1. 16. PW-2, Rina Debnath as already indicated, is one of the sterling witness of the prosecution case. She has testified in the trial that on 20.05.2012 at about 2 pm her husband, Nirmal Debnath was working in their paddy field. She went to the paddy field with drinking water for her husband and saw from a close distance of 10-12 cubits that her brother-in-law, Parimal Debnath was assaulting her husband by the back side of the spade on his head. As a result, her husband sustained injuries and fell down on the paddy field. She raised hue and cry and lost her sense by seeing the incident. As a result, her husband sustained injuries and fell down on the paddy field. She raised hue and cry and lost her sense by seeing the incident. On the day of occurrence, her husband was shifted to GBP Hospital. She, her brother Shankar and brother in law Kajal and Pintu Debnath, the son of Parimal Debnath (the appellant herein) went to the GBP Hospital with her husband. Next day, on 21.05.2012, her husband died in the GBP hospital. Her father lodged the ejahar in the Kamalpur police station. The spade was seized by the investigating officer in her presence by preparing the seizure list (Exbt.-1). She had signed over that seizure list and admitted that seizure list in the trial. In the cross examination, nothing could be extracted which can be used by the defence to debase the prosecution case. 17. PW-3, Dilip Shil has testified in the trial that on the day of occurrence, he heard the hue and cry from the western side of his paddy field. He was also working in his paddy field during that time and after hearing the hue and cry, he went to the place of occurrence and found many persons gathered there by that time. He saw Nirmal Debnath being shifted to the hospital by a cart. He heard from the local people that brother of Nirmal Debnath had assaulted him. After a day, Nirmal died in the GBP hospital. No effective cross-examination has been carried out in respect of PW-3. 18. PW-4, Shri Supriya Shil has testified that when she was cooking at her kitchen on the day of occurrence, she heard hue and cry. She came out of her room and saw the gathering. She came to know from the wife of Kajal Debnath that her brother-in-law, Parimal Debnath assaulted Nirmal Debnath and Nirmal Debnath had been shifted to BSM Hospital, Kamalpur. She has also stated that Nirmal Debnath was therefore shifted to Agartala and on the next day, he died succumbing to the injuries. In the cross-examination, nothing material could be extracted from PW-4. 19. PW-5, Shri Narayan Chanda has stated that on the day of occurrence, i.e. 25.05.2012, he was working in his paddy field situated at a distance about 20 cubits from the paddy field of Nirmal Debnath. Parimal Debnath and Nirmal Debnath were working in their respective paddy field. In the cross-examination, nothing material could be extracted from PW-4. 19. PW-5, Shri Narayan Chanda has stated that on the day of occurrence, i.e. 25.05.2012, he was working in his paddy field situated at a distance about 20 cubits from the paddy field of Nirmal Debnath. Parimal Debnath and Nirmal Debnath were working in their respective paddy field. At about 2 pm a shrill shouting of Nirmal Debnath suddenly came to him and PW 5 saw Nirmal having suffered bleeding head injury lying on the paddy field. He has also testified that he saw Parimal Debnath, the appellant, leaving the paddy field with the spade in his hand. He has also stated that he found Nirmal's wife, Rina in the paddy field. The family members of Parimal Debnath did come there. He came to know from Nirmal's wife that there was a land dispute. The villagers shifted Nimal Debnath to Kamalpur hospital by a thela (cart). Nirmal was later on shifted to GBP Hospital and he died there. In the cross-examination, nothing material could be extracted from this witness, but when the attention was drawn to the statement that he saw the appellant leaving the place of occurrence with a spade in his hand and contested by suggesting that such statement he did never make to the investigating officer, the witness could not show such statement in his previous statement recorded under Section 161 of the CrPC, but contend that he made such statement to the investigating officer. 20. PW-6, Shri Pankaj Shil has stated that he was working in the paddy field on the day of occurrence and he was using a tractor. At about 2 pm, when he was about to leave keeping the tractor in the paddy field for bringing fuel for the tractor, he heard cry of Nirmal Debnath and saw Parimal Debnath was assaulting his brother, Nirmal Debnath, by his spade and gave blows on the head of Nirmal Debnath. He rushed to the place of occurrence but Parimal Debnath left the place with the space in his hand. He saw the bleeding injury of Nirmal Debnath and he lost sense. In the meantime, many people of their village rushed to the place of occurrence and some of them Shifted Nirmal Debnath to Kamalpur Hospital. On that day itself, Nirmal was shifted to the GBP Hospital and on the next day he died there. He saw the bleeding injury of Nirmal Debnath and he lost sense. In the meantime, many people of their village rushed to the place of occurrence and some of them Shifted Nirmal Debnath to Kamalpur Hospital. On that day itself, Nirmal was shifted to the GBP Hospital and on the next day he died there. He had informed the incident to Nirmal's father-in-law from his mobile phone. On the next day of occurrence, the police officer took his signature on the seizure list for seizing the spade. He had identified his signature on the seizure list. In the cross-examination, he did not state anything which could destroy the core of his statement made during the examination in chief. 21. PW-7, Shri Sukumar Shil, another witness, who was also working in the adjoining paddy field at the time of occurrence has testified in the trial that after hearing the cry, he rushed to the place of occurrence and found that Nirmal Debnath was being carried out by a thela gari (cart) with injuries on his person. Nirmal's wife and Pintu Debnath (son of the appellant) was shifting injured Nirmal to BSM Hospital, Kamalpur. On the following day, Nirmal Debnath died in the GBP Hospital. No meaningful cross-examination has been carried out in respect of PW-7. 22. PW-8, SI Arindam Roy is the first investigating officer and he has briefly narrated how he had carried out the investigation. He seized the weapon of assault by preparing the seizure list. He has also prepared the hand sketch map. He has categorically stated that on 21.05.2012 itself he had examined the witnesses namely Subal Debnath and Rina Debnath. Thereafter, he raided the house of Parimal Debnath and arrested him. He inquired about the injured and later on he came to know that the injured-victim died in the GBP Hospital on 21.05.2012 and such information he had received from Kajal Debnath, younger brother of Nirmal Debnath on 22.05.2012. On his prayer, Sub-Divisional Judicial Magistrate, Kamalpur permitted him to add Section 302 of the IPC for purpose of investigation. He continued to record the statements of the witnesses whom he considered material. But he was transferred on 31.05.2012 and thereafter, the investigation was taken up by the other officers. 23. PW-9, Dr. On his prayer, Sub-Divisional Judicial Magistrate, Kamalpur permitted him to add Section 302 of the IPC for purpose of investigation. He continued to record the statements of the witnesses whom he considered material. But he was transferred on 31.05.2012 and thereafter, the investigation was taken up by the other officers. 23. PW-9, Dr. Pranab Chowdhury was posted as the Medical Officer in the Department of Forensic Medicine and Toxicology at AGMC and GBP Hospital and he carried out the post mortem examination. On examination, he found the following ante mortem injuries on the person of the deceased, Nirmal Debnath: 1. Surgically stitched wound present on the left side frontal region, 11 cm from the left eyebrow and 4 cm left to midline with one number stitches. 2. Surgically stitched wound present on the left side frontal parietal region, 11 cm above the left eyebrow and 8 cm left midline measuring 5.5 cm in length with 5 number stitches. 3. Surgically stitched wound present on the left side parietal region, 11 cm, above the left eyebrow and 6 cm left to midline, size 3.2 cm in length with 2 number stitches. On reflection of scalp and after cutting the stitches, the above mentioned injuries are found to be lacerated injury and injury No. 1 and 3 are scalp deep and injury No. 2 is cranial cavity deep. Left side parietal and part of frontal bone correspond to the injury No. 2 are depressed and fractured multiple piece. Meninges and brain matter is depressed. There is extra dural and subdural hemorrhage is present on the left side part of frontal parietal and temporal and occipital region. 4. Abrasion present over the left side upper part of deltoid region, size 1.5 cm x 1.4 cm. 5. Abrasion is present in the left side lower part of deltoid region on medial aspect size 2 cm x 1.2 cm. 6. Abrasion present on the left side back on elbow joint, size 2.4 cm x 1.2 cm." 24. All the injuries, according to him, were ante mortem and caused by the impact of the hard and blunt object. The age of injuries was 1-2 days. According to him, the cause of death was coma due to the head injury caused by impact of some hard and blunt object. Injury No. 2 and 3 as noted above, were sufficient enough to cause death in the ordinary course. The age of injuries was 1-2 days. According to him, the cause of death was coma due to the head injury caused by impact of some hard and blunt object. Injury No. 2 and 3 as noted above, were sufficient enough to cause death in the ordinary course. He had prepared the post mortem report by his hand and he has admitted that report (Exbt.-5) in the evidence. When he was shown the spade as seized during the time of investigation, as marked as M.O. 1, he opined in the trial that by the said spade (Exbt.-MO-1) such injuries, as received by the deceased, can be caused by its blunt side. In the cross-examination, he did say nothing material to debase the prosecution case. 25. PW-10, Paritosh Das is the second investigating officer. He has examined a few more witnesses and re-examined PW-2. After collecting the injury report from the BSM Hospital and the post mortem examination report, he filed the chargesheet against the appellant. 26. PW-11, Shri Subhajit Das was the medical officer who treated the victim at Kamalpur Hospital on 20.05.2012. He has stated in the trial that the patient was serious and in the hurriedness, he had to refer the patient for better management of his injuries with the specific finding. Even though, he has stated no bed head ticket was maintained in respect of the said patient in the Kamalpur Hospital, but he prepared a medical examination report (Exbt.-6). 27. PW-12, Shri Saha Alam Chowdhury an Assistant Sub-Inspector Police was posted at the relevant time at GBP outpost. He had received information from Dr. Surachana Debbarma of the GBP Hospital that one patient namely Nirmal Debnath had expired in the GBP Hospital due to physical assault. He entered the said information in the police station diary and visited the GBP Hospital to find out the dead body. Thereafter, he prepared the inquest report (Exbt.-7). He had also arranged for the post mortem examination of the dead body. According to him, the post mortem examination was carried out by one Dr. Pranab Chowdhury (PW-10). No cross-examination has been carried out by the defence in respect of this witness. 28. CW-1, Dr. Chandan Debbarma has stated that on the relevant day, he was working in the BSM Hospital, Kamalpur. According to him, the post mortem examination was carried out by one Dr. Pranab Chowdhury (PW-10). No cross-examination has been carried out by the defence in respect of this witness. 28. CW-1, Dr. Chandan Debbarma has stated that on the relevant day, he was working in the BSM Hospital, Kamalpur. He has produced the bed head ticket of one patient namely Nirmal Debnath with a copy of the referral certificate. As per the bed head ticket, Dr. Subhajit Das attended the said patient namely Nirmal Debnath at the emergency block of the said hospital on 20.05.2012 at 1.45 pm. Who brought the patient in the hospital was not available in the bed head ticket. The patient was brought with the history of head injury from physical assault. The content of the bed head ticket has already been noted by this court. The referral certificate and bed head ticket have been admitted in the evidence by CW-1. Having appreciated the evidence and the arguments advanced for the state and the accused, the trial judge returned the finding of conviction. Having scrutinized the evidence with extreme caution, this court does not find any gap in the prosecution which creates reasonable doubt. Thus, the prosecution case has been proved by adequate evidence leaving no space for doubt. The witnesses namely Rina Debnath (PW-2), Dilip Shil (PW-3), Supriya Shil (PW-4), Narayan Chanda (PW-5) and Pankaj Shil (PW-6) have categorically stated that the appellant struck the blow on the head of the victim. Their narration of the assault has been supported by the medical examination report and post mortem examination report and as such, this court cannot trace any reason to interfere with the judgment of conviction and the consequential order of sentence. Hence, this appeal stands dismissed.