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2021 DIGILAW 5 (TRI)

Bimal Dey v. State of Tripura

2021-01-08

S.G.CHATTOPADHYAY

body2021
JUDGMENT : S.G. Chattopadhyay, J. 1. This criminal revision has been directed against the judgment dated 28.06.2019 passed by the learned Sessions Judge, South Tripura, Belonia in case No. Criminal Appeal 16 of 2018 affirming the judgment and order of conviction and sentence dated 29.05.2018 passed by the learned Judicial Magistrate First Class, Belonia, South Tripura whereby the petitioner was convicted under section 341 & 324 IPC and sentenced to fine of Rs. 300/- and ID to SI for 10 (ten) days under section 341 IPC and RI for 6 (six) months for having committed offence punishable under section 324 IPC. 2. The facts of the case are as under: Smt. Sima Das, D/O-Late Jagat Das of Gabtali, Belonia lodged a written complaint with the Officer in Charge of PR Bari police station on 17.11.2008 alleging, inter alia, that when she was returning home after collecting drinking water from the nearby water source on 13.11.2008 at about 03.30 pm, the petitioner stood on her way and started threatening her with dire consequences. When she raised protest, the accused gave a blow on her cheek with a dao (a sharp edged weapon). Following her hue and cry, the neighbouring people appeared for her rescue. Seeing them the accused petitioner fled. The injured informant was then taken to Nihar Nagar hospital. Having returned home from hospital, she came to know that the accused petitioner also ransacked her house after assaulting her. 3. Based on her FIR, PR Bari P.S. case No. 132 of 2008 under sections 341,326,447,427 & 506 IPC was registered and the investigation of the case was taken up. 4. Sri Ranjit Kr. Datta, Sub Inspector of Police of PR Bari police station conducted the whole investigation of the case. His investigation revealed that the accused petitioner attacked the informant on the date of occurrence at the alleged place and assaulted her and thereafter he also trespassed into her house and committed mischief by damaging her household goods. On the basis of the investigation done by him, the investigating officer filed charge sheet No. 110 of 2008 dated 30.11.2008 against the accused petitioner for having committed offence punishable under sections 341, 324, 447, 427 & 506 IPC. 5. The learned trial court framed charges of offence punishable under sections 341, 324, 447, 427 & 506 IPC against the accused petitioner. 5. The learned trial court framed charges of offence punishable under sections 341, 324, 447, 427 & 506 IPC against the accused petitioner. The accused pleaded not guilty to the charges and claimed a trial. 6. During the trial of the case 8 (eight) witnesses were examined on the prosecution side and 4 (four) documents were adduced to prove the prosecution case against the accused. After the recording of the prosecution evidence was over, the accused was examined under section 313, Cr.P.C. In reply, the accused petitioner pleaded innocence and claimed that the charges were foisted on him. The learned trial court recorded the statement of the accused made under section 313 Cr.P.C. He declined to adduce any witness on his defence. 7. On appreciation of evidence, the learned trial court found the accused petitioner guilty of offence punishable under sections 341 & 324 IPC and convicted him for those offences. He was convicted and sentenced to pay a fine of Rs. 300/- with default stipulation for offence punishable under section 341 IPC and RI for 6 (six) months for offence punishable under section 324 IPC. In appeal, the learned Sessions Judge, South Tripura, Belonia upheld the conviction and sentence of the accused petitioner by the impugned judgment. Hence, this criminal revision. 8. I have heard Mr. R.G. Chakraborty, learned counsel appearing for the petitioner and Mr. S. Ghosh, learned Addl. P.P. representing the State respondent. 9. Appearing for the accused petitioner Mr. R.G. Chakraborty, learned counsel has vehemently argued that the petitioner has been falsely implicated in the case which is apparent on the face of the record. According to Mr. Chakraborty, learned counsel, the informant was allegedly attacked by the petitioner on 13.11.2008 and she was released from hospital on the very day but the FIR was lodged by her on 17.11.2008 though the police station was very close to her house. It is submitted by Mr. Chakraborty, learned counsel that delay of 4 (four) days in lodging the FIR in such circumstance should have been properly explained by the prosecution and in absence of such explanation the conviction and sentence of the accused is erroneous and liable to be set aside. It is submitted by Mr. Chakraborty, learned counsel that delay of 4 (four) days in lodging the FIR in such circumstance should have been properly explained by the prosecution and in absence of such explanation the conviction and sentence of the accused is erroneous and liable to be set aside. Further submission on behalf of the accused petitioner is that none of the residents of the surrounding houses in the place of occurrence has been examined by the prosecution which indicates that the prosecution case is a total falsehood because the witnesses would have divulged the truth had they been examined. It is also submitted by Mr. Chakraborty, learned counsel that even the admission and treatment of the victim in hospital could not be established because there is no evidence as to who escorted the victim to hospital from the place of occurrence and who got her admitted in the hospital. Further contention on behalf of the accused is that since the victim was allegedly attacked by the accused petitioner with a dao and bleeding injury was caused to her, her wearing apparels should have been seized and produced in court during trial to prove the fact and the weapon of offence should have also been recovered and seized by the investigating agency. But, neither the wearing apparels of the victim have been seized nor the weapon of offence has been recovered and seized. In such circumstances, the trial court should not have believed the story of the alleged assault of the victim. Further submission on behalf of the accused petitioner is that admittedly there was a long standing property dispute between the accused petitioner and the informant which prompted her to implicate the accused petitioner falsely in this case. Mr. R.G. Chakraborty, learned counsel of the petitioner has also taken the court to the various contradictions appearing in the evidence of the prosecution witnesses and submitted that the learned trial court did not take note of those contradictions. According to Mr. Chakraborty, learned counsel, since the conviction and sentence of the accused petitioner is not based on proper appreciation of evidence, the impugned judgment is liable to be set aside. 10. On the contrary, Mr. S. Ghosh, learned Addl. According to Mr. Chakraborty, learned counsel, since the conviction and sentence of the accused petitioner is not based on proper appreciation of evidence, the impugned judgment is liable to be set aside. 10. On the contrary, Mr. S. Ghosh, learned Addl. P.P. submits that the witnesses examined by the prosecution during the trial of the case gave a very corroborative and consistent evidence and on the basis of proper appreciation of evidence, the trial court held the accused petitioner guilty and convicted and sentenced him which was also upheld by the learned Sessions Judge by the impugned judgment. According to Mr. Ghosh, learned Addl. P.P., there is no reason to interfere with the concurrent findings of the courts below and as such the impugned judgment does not call for any interference in revision. 11. As noted, 8 (eight) prosecution witnesses have been examined in this case. Among them Smt. Sima Das [PW-1] is the victim who lodged the first information report at the police station. In her examination in chief she asserted that on 13.11.2008 at around 03.30 pm when she was returning home after fetching water from a nearby place the accused followed her and stood on her way. He also abused her with vulgar languages and assaulted her with a dao. Statement of the PW is as under:- "On 13.11.08 at around 3.30 pm when I went to the supply point located at in front of our house to fetch water and on returning from the plain the accused Bimal Dey followed me. The accused Bimal Dey has waylaid my way and abused me with vulgar languages. When I protest him, the accused Bimal Dey has given a dao blow on my left cheek. I got frightened and ran towards the house of Sudhan Datta. The accused Bimal Dey followed me and I somehow managed to got inside the house of Sudhan Datta. Sudhan Datta rescued me and intervened into the matter. The accused Bimal Dey has also attempted to assault me with a dao in the hose of Sudhan Datta. This incident was reported to my elder brother Biplab Das. I have lost my senses. Subsequently I was taken at Nihar Nagar PHC by my elder brother. I have given stitches on my left left cheek. In this date I was released from the hospital. This incident was reported to my elder brother Biplab Das. I have lost my senses. Subsequently I was taken at Nihar Nagar PHC by my elder brother. I have given stitches on my left left cheek. In this date I was released from the hospital. But I have regularly visited at the hospital on day to day basis for further treatment." The PW was put to incisive cross examination by the learned defence counsel wherein she stated that the accused was the husband of her own elder sister. She also stated that after the occurrence took place, the matter was reported to the village Panchayat but no effort was ever taken by the Panchayat for settlement of dispute. It was further stated by the PW in her cross examination that when she went to fetch drinking water, her neighbours Smt. Astami Das and Smt. Anjali Das also accompanied her and they were present at the time of occurrence. She further stated that as a result of the assault she suffered bleeding injury and her clothes were stained with blood. 12. Sri Sudhan Datta [PW-2], a neighbour of the informant supported her statement that she ran away into the house of the PW to save herself from the attack. According to the PW on the date of occurrence the informant came running into his house and she was shouting for help. At that time the PW also saw the accused petitioner chasing her with a dao in his hand. The PW had seen a cut mark on the cheek of the victim [PW-1]. He intervened to save the victim. The injured victim was then taken to Nihar Nagar Primary Health Centre for treatment. In his cross examination, the PW stated that he had seen stain of blood in the salwar suit of the informant. A suggestion was put to the PW in his cross examination that he conspired with the victim to implicate the petitioner falsely in this case which was denied by him. 13. Sri Biplab Das [PW-3] is the elder brother of the victim. He also supported the statement of his sister with regard to her assault. According to the PW, at about 03.00 pm on 13.11.2008 he was walking in his paddy field. From there he saw the accused entering into his house with a dao in his hand. The accused was then shouting with vulgar words. He also supported the statement of his sister with regard to her assault. According to the PW, at about 03.00 pm on 13.11.2008 he was walking in his paddy field. From there he saw the accused entering into his house with a dao in his hand. The accused was then shouting with vulgar words. Immediately the PW came home and saw the accused chopping the doors and windows of his house. At that time he also heard her sister crying for help from the northern side of the house. Following the cry of his sister he reached near the house of Sri Sudhan Datta, the next door neighbour and saw that his sister received bleeding injury on her left cheek. He came to know from his sister that the accused petitioner assaulted her while she was returning home after collecting water from the nearby water source and caused her injuries. The PW immediately took her to nearby Nihar Nagar PHC. She was released from the hospital on the same day after treatment. In his cross examination, the PW stated that he did not see Smt. Anjali Das and Smt. Astami Das at the place where he met his injured sister after the occurrence. The PW also stated in his cross examination that during investigation the blood stained clothes were shown to the investigating officer but he did not seize the blood stained clothes. The PW denied the suggestion of the accused that the accused petitioner was falsely implicated in the case owing to a long standing dispute between them. 14. Smt. Anjali Das [PW-4] stated in her examination in chief that she along with Smt. Astami Das [PW-5] were present at the place of occurrence when the accused was abusing the victim [PW-1] with filthy language. The PW also requested the accused to abstain from abusing the victim and thereafter they left the place of occurrence. After a while they returned and saw a bleeding cut injury on the left cheek of the victim. The victim told her that accused Bimal Dey caused her injury. In her cross examination, she denied the suggestion of the accused that the victim received such injury as a result of her falling on earth. 15. After a while they returned and saw a bleeding cut injury on the left cheek of the victim. The victim told her that accused Bimal Dey caused her injury. In her cross examination, she denied the suggestion of the accused that the victim received such injury as a result of her falling on earth. 15. Smt. Astami Das [PW-5] gave similar evidence in her examination in chief and told that at the material time she along with Smt. Anjali Das [PW-4] was going for collection of some subscription and on their way they met the accused and the informant near the water source. They heard the accused abusing the victim [PW-1] with filthy words. They requested the accused to abstain from abusing the victim. The PW along with PW-4 then left the place and when they were returning home they met the victim and her brother [PW-3]. The victim was then having a cut injury on her left cheek which was bleeding. On her query the brother of the victim told her that the accused had given a dao blow on her cheek which caused the injury. In her cross examination she denied the suggestion of the accused that she have false evidence. She also denied the fact that the victim received the injury by her falling on earth. 16. Smt. Gita Rani Das [PW-6] is the mother of the victim. Her victim daughter gave a detailed account of the incidence to her after the occurrence. The PW saw the cut injury on her daughter's face and came to know from her that the accused attacked with a dao and caused her injury. In her cross examination she admitted that they had a long standing dispute with the accused petitioner. She, however, denied the suggestion of the accused that he did not assault her daughter. 17. Dr. Arup Datta [PW-7] is the medical officer who attended the victim on 13.11.2008 at Nihar Nagar Primary Health Centre immediately after the injured was taken to there. According to the PW, there was incised wound over the left side of the face of the victim which was simple in nature and caused by sharp object and such injury was caused within past half-three hours. The injury report of the PW on identification was taken into evidence and marked as Exbt. 2. According to the PW, there was incised wound over the left side of the face of the victim which was simple in nature and caused by sharp object and such injury was caused within past half-three hours. The injury report of the PW on identification was taken into evidence and marked as Exbt. 2. In his cross examination, the PW stated that he did not mention in his report as to who escorted the victim to hospital. 18. Sri Ranjit Kr. Datta [PW-8] is the investigating officer of the case. According to the PW, during his investigation he examined all the material witnesses and recorded their police statements under section 161 Cr.P.C. and collected the injury report of the victim. Since the charges were established during investigation he submitted charge sheet against the accused petitioner. In his cross examination the PW denied to have come across any proof during investigation to say that there was long standing dispute between the accused and the informant. The PW also denied that his investigation was not done in accordance with law. 19. With regard to the contention of the defence that the non recovery of the weapon of offence belied the prosecution case, the learned trial court held that apparently the investigating officer conducted the investigation very casually but for his default the prosecution case supported by sufficient evidence could not be brushed aside. Findings recorded by the learned trial court on appreciation of evidence is as under:- "On cogent reading of prosecution witnesses more particularly the statements of Pw-1, 2, 3 & 6 it surfaced that on the fateful afternoon the accused restrained and struck a dao blow upon the victim which resulted in causing incised injury over the left side of the face of the victim. The evidence of these witnesses that the victim sustained injuries is further got supported from the evidence of doctor and exhibit 2 (as a whole) and thereby strengthen the case of prosecution that the victim was assaulted. There is even no suggestion to victim by defence that the accused did not restrain her near supply point or that he did not struck any dao blow on her face. It is found that all the witnesses of prosecution are brought under detailed cross examination but despite the defence could not elicit anything material in favour of defence and the witnesses successfully withstood the test of cross-examination. It is found that all the witnesses of prosecution are brought under detailed cross examination but despite the defence could not elicit anything material in favour of defence and the witnesses successfully withstood the test of cross-examination. The witnesses deposed categorically and the substantive evidence of the witnesses are found more or less same and did not suffer from any infirmities. The statement of witnesses is found cogent and trustworthy and I find no reason to disbelieve their testimonies. It is fact that in this case there is no recovery of the weapon i.e. dao. On going through the evidence of I.O., I find it is totally the default of the I.O. of this case that he did not even try to recover and seized the weapon. Besides this I.O. of this case has conducted the investigation very casually and for this default the case of prosecution cannot be brush aside which is otherwise found standing on strong footing. More so, mere non recovery of weapon of offence is my opinion is not a factor from which the accused get any relief. Here I would like to take a pause and refer the follow decisions. Pravin Kumar Vs. State, 1997 Crl. J 577 (Bom) it was observed that simply because knife used in the commission of offence could not be recovered it can't be said that the weapon was not used, especially where there is unimpeachable evidence to indicate that knife was actually used by the accused. In State of Rajasthan Vs. Arjun Sing and others reported in AIR 2011 SC 3380 , the Hon'ble Supreme Court held that absence of evidence regarding recovery of used, pellets, blood stained clothes etc. cannot taken or construed as no such occurrence had taken place. It has been further observed that when there is ample unimpeachable ocular evidence and the same has received corroboration from the medical evidence, non recovery of weapon does not affect the prosecution case. In the instant case Pw-1 categorically deposed that she was given dao blow on her cheek which fact also confirm by other witnesses that a cut injury was seen on the cheek of informant and besides exhibit 2 (as a whole) who confirm this fact. In the instant case Pw-1 categorically deposed that she was given dao blow on her cheek which fact also confirm by other witnesses that a cut injury was seen on the cheek of informant and besides exhibit 2 (as a whole) who confirm this fact. It is true that the matter was reported to police after around five days but in the complaint is has been mention that due to the treatment of victim the delay occurred and the delay in my opinion cannot be taken as ground to set aside the case of prosecution as because defence side also did not raise any issue for the delay. Upon evolution of entire evidence of prosecution this Court is of the opinion that the prosecution has successfully proved the charges U/S. 341/324 of IPC against the accused. However, I find that the evidence of prosecution in respect of the charges U/S. 427/447/506 of IPC is not so strong so as to hold the accused liable for the alleged offences. Accordingly, this court is of the opinion that the accused Bimal Dey is found guilty for the offence punishable U/s. 341/324 of IPC." 20. Thereafter, the learned trial court recorded the reasons as to why the benefit of Probation of Offenders Act was not given to the accused and sentenced him as above. The learned Sessions Judge, in appeal, made in-depth analysis of the evidence of the prosecution witnesses and upheld the judgment and order of conviction and sentence of the accused petitioner. 21. The fact that the victim was assaulted by the accused with a dao stands clearly established. The victims' evidence in this regard is sufficiently corroborated by the evidence of Sri Sudhan Datta [PW-2]. The evidence of PW-3, PW-4 & PW-5 have also given strong circumstantial support to the evidence of the victim [PW-1]. Evidently, the victim was taken to Nihar Nagar PHC immediately after the occurrence where PW-7, the doctor, attended her and gave treatment to her. The injury report of PW-7 has proved that the victim suffered from an incised wound on the left side of her face within past half-three hours and such injury was caused by a sharp object. All the prosecution witnesses were put to incisive cross examination by the accused but the evidence given by them in their cross examination could not be impeached to any extent. All the prosecution witnesses were put to incisive cross examination by the accused but the evidence given by them in their cross examination could not be impeached to any extent. The submission of learned counsel of the petitioner that the material witnesses were not examined is devoid of merit. 22. There is, therefore, no reason to interfere with the concurrent findings of the courts below. 23. Resultantly, the petition stands dismissed. 24. The convict petitioner is directed to surrender before the learned trial court within two months from today to suffer the sentence failing which the learned trial court will take steps in accordance with law to make him suffer the sentence. The case is thus disposed of. Send back the LC record.