Partly allowed

Bhanu Dey and Ors. v. the State of Tripura

Tripura HC8 Nov 2017Crl.A(J)/3/2016

Case brief

AI extract

What is this about?

This court partially allowed an appeal against a conviction under Sections 307, 325, and 379 of the IPC. The prosecution failed to prove intention to murder, leading to acquittal on Section 307 charges. The conviction for grievous hurt under Section 325 was upheld, but the sentence was reduced to two years due to a compromise between the parties and the absence of criminal antecedents.

What did the court decide?

Appellants acquitted of charges under Sections 307 and 379 IPC; conviction under Section 325 IPC affirmed with sentence reduced to 2 years rigorous imprisonment.

Bhanu Dey and Ors. Vs the State of Tripura — Murder and Culpable Homicide | Tripura HC (2017)

¶1

THE HIGH COURT OF TRIPURA AGARTALA

¶2

CRL A (J) No.3 of 2016

¶3

1. Shri Bhanu Dey,

¶4

son of late Sushil Chandra Dey, resident of village: Badharghat, Sripalli, P.O. A.D. Nagar, P.S. Amtali, District: West Tripura

¶5

2. Shri Suman Deb,

¶6

son of late Chitta Ranjan Deb, resident of village: Badharghat, Sripalli, P.O. A.D. Nagar, P.S. Amtali, District: West Tripura

¶7

3. Shri Biswajit Rakshit @ Bata,

¶8

son of late Purnendhu Rakshit, resident of village: Badharghat, Sripalli, P.O. A.D. Nagar, P.S. Amtali, District: West Tripura

¶9

…………Appellants

¶10

- V E R S U S –

¶11

The State of Tripura

¶12

…………..Respondent

¶13

B E F O R E

¶14

THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE S. TALAPATRA

¶15

For the petitioners : Mr. H. Debnath, Advocate Mr. S. Ghosh, Advocate , For the respondent : Mr. R.C. Debnath, Addl. P.P.

¶16

Date of hearing and delivery : 08.11.2017 of judgment and order

¶17

Whether fit for reporting : No

¶18

Page 1 of 12

¶19

CRL A(J) No.03 of 2016

¶20

Judgment and Order (Oral)

¶21

(S. Talapatra, J)

¶22

This is an appeal from the judgment of conviction and the order of sentence dated 17.12.2015 delivered in Case No. S.T. 62 of 2014 by the Additional Sessions Judge, West Tripura, Agartala, Court No.3.

¶23

02. It is to be noted at the outset that this appeal survives for the appellants No. 2 and 3 inasmuch as the appellant No.1 namely Bhanu Dey has expired on 15.07.2017 and thus this appeal so far the said appellant is concerned has abated. Such abatement has been recorded separately by the order dated 08.11.2017.

¶24

03. By the said judgment dated 17.12.2015, the appellants No.2 and 3 hereinafter referred to as the appellants have been convicted under Section 307 read with Section 34, 325 and 379 of the IPC. Pursuant to the said conviction, by the order dated 17.12.2015 the appellants have been sentenced to suffer rigorous imprisonment for 7(seven) years with fine of Rs.5,000/- in default of payment of fine to suffer further rigorous imprisonment for 3(three) months under Section 307 of the IPC. The appellants have been further sentenced to suffer rigorous imprisonment for 3(three) years with fine of Rs.5,000/and in default of payment of fine to suffer more rigorous imprisonment for 3(three) months for commission of offence punishable under Section 325 of the IPC. They have been also sentenced to rigorous imprisonment for 3(three) years with a fine of Rs.5,000/- and in default of payment of fine, to suffer rigorous imprisonment for 3(three)

¶25

Page 2 of 12

¶26

CRL A(J) No.03 of 2016

¶27

months for commission of offence punishable under Section 379 of the IPC. It has been directed that those sentences shall run concurrently.

¶28

04. The genesis of the prosecution against the appellants is rooted in the written ejahar filed by one Kartik Das [PW-1] on 08.03.2013 disclosing that the deceased appellant called the informant’s son and took him to a lonely place nearby the railway line with intention to murder. The deceased appellant was joined by the appellants in order to commit the said crime. The informant from his son’s statement gathered that the deceased appellant gave him blows on the backside of his head with a piece of stone which was collected from the railway line. According to his son’s statement, the appellant No.3 had snatched away some money amounting to Rs.7500/- of various denominations. His son succumbing to the injuries fell on the ground, when some unknown passers-by informed the matter to the police. Some of the local people of the informant’s neighbourhood had been to the place of occurrence and found the informant’s son with the bleeding injuries. The informant’s son [PW-3] was rushed to the Hapania hospital. Later on, his son was taken to the GBP hospital for better management of his injuries. When the written ehajar was submitted, the informant’s son was under treatment at GBP hospital at Agartala.

¶29

05. Based on the said written ejahar Agartala GRPS Case No.1 of 2013 under Section 341/325/379/307 read with Section 34 of the IPC was registered and taken up for investigation. On completing the investigation, Bimal Kumar Ghosh, a Sub-Inspector of Police [PW-8] submitted the police report chargeshetting the deceased appellant and

¶30

Page 3 of 12

¶31

CRL A(J) No.03 of 2016

¶32

the appellants under Section 341/325/379/307 read with Section 34 of the IPC by the chargesheet No.1-13 dated 09.08.2013. The SubDivisional Magistrate, Bishalgarh having taken the cognizance of the offence as stated above, committed the case to the court of the Sessions Judge, West Tripura, Agartala. The Sessions Judge, West Tripura, Agartala transferred the case to the court of the Addl. Sessions Judge, court No.3, West Tripura, Agartala for trial in accordance with law. The charge was framed against the deceasedappellant and the appellants herein under Section 341/325/379/307 read with Section 34 of the IPC to which the deceased appellant and the appellants herein pleaded innocence and claimed to be tried in accordance with law. In order to substantiate the charge, the prosecution adduced as many as 10(ten) witnesses including the victim [PW-3] and the Medical Officer [PW-10] who vouched for his treatment in the hospital. Apart that, 6(six) documentary evidence including the injury report of the victim [Exbt.6] were introduced alongwith Exbt. MO-1 [the material object]- the wearing apparels of the victim. After the prosecution evidence was recorded, the deceased-appellant and the present appellants were examined under Section 313 of the Cr.P.C. separately, when they denied the materials incriminating them for commission of the offence as borne in the charge. The accused persons repeated their plea of innocence. But they did not adduce any evidence whatsoever. After hearing, the trial court came to the inference that the ingredient of Section 307 of the IPC has been made out. It has been further held that even the ingredients of Section 379, 341 and 325 read with Section 34 of the IPC are well established by the prosecution, but the charge under Section 341 of the IPC was not

¶33

Page 4 of 12

¶34

CRL A(J) No.03 of 2016

¶35

proved resulting in discharge. Consequently, the deceased-appellant and the present appellants were sentenced with imprisonment and fine as stated above.

¶36

06. Being aggrieved by the said judgment of conviction and order of sentence dated 17.12.2015, the accused persons have preferred this appeal. Mr. H. Debnath, learned counsel appearing for the appellants has submitted that there had been substantial delay in filing the written ejahar and for explaining such delay no reason was assigned by the prosecution. There was serious incongruity in the deposition of PW-1 inasmuch as he has stated in the trial that PW-3 (his son) regained sense on 08.03.2012 and he came to know the name of the assailants from him. The said statement was corroborated also by PW-2, namely Smt. Kabita Das, the sister of the victim [PW-3]. But PW-3, the victim in his deposition has clearly stated that he regained his sense on 09.03.2013. This aspect of the matter was clearly overlooked by the trial court. That apart, PW-6, Sri Swapan Das has testified that he got the information of assault from one Biswajit Das but that Biswajit Das was never examined by the prosecution. Surprisingly, PW-6 stated that when the victim was being taken to the hospital he had in his senses. Even the court has failed to appreciate that there is no ingredient of Section 307, 325 and 379 of the IPC. Failure of relevant appreciation has resulted in the conviction and hence the said conviction requires interference by this court.

¶37

07. Appearing for the state Mr. R.C. Debnath, learned Addl. P.P. has submitted that the trial court has rightly returned the finding of conviction inasmuch as the prosecution has successfully established

¶38

Page 5 of 12

¶39

CRL A(J) No.03 of 2016

¶40

the charge by oral and documentary evidence. He has submitted that there cannot be any reason to discard the testimony of PW-3, the victim as the accused persons could not make out any circumstance why they would be falsely implicated in a criminal case by the informant or the victim. It would be evident further from the crossexamination carried out by the accused. Mr. Debnath, learned Addl. P.P. has contended that PW-3 has categorically stated that on 07.03.2013 at about 7 p.m. while he was in Dukli market, the deceased-appellant called him near the railway crossing and also rebuked him in filthy language and at that time the appellants herein joined him and they started assaulting him by fists and blows by means of a stone. At that time they took away Rs.7,000/- and more from his pocket. He had asserted in the trial that he sustained bleeding injuries on his head and lost his sense. When he regained his sense on 09.03.2013 he found him admitted in the GBP hospital, Agartala and only after regaining the sense he told his father about the occurrence. He has stated that on 13.03.2013 he was referred to Kolkata for better treatment. In the cross-examination except the suggestion that the accused person did not assault him near railway crossing, no further effort was made to record contradiction about taking away of the money from him, but that contradiction was not recorded following the procedure as laid down in law. Mr. Debnath, learned Addl. P.P. has further submitted that the statement of the victim in the trial has been corroborated by the medical evidence.

¶41

08. PW-10, Dr. Abhijit Dey in the trial has categorically stated that on 07.03.2013 he examined PW-3 and found the following injuries:

¶42

Page 6 of 12

¶43

CRL A(J) No.03 of 2016

¶44

“a) abrasion over left interior chest wall and left side of face which is simple in nature caused by hard blunt object.

¶45

b) One stitched wound measuring 4 cm over right occipital area of head which is simple in nature caused by hard blunt object. CT scan of brain reveals Haemoraghic contusion at right parietal-occcipital region of head. X-ray chest reveals normal study. Age of injury was fresh. Nature of injuries are grievous in nature.

¶46

Patient was referred to Kolkata for better management. This is the said report prepared and signed by me. On identification marked Ext.6 and 6/1.”

¶47

He identified the injury reports [Exbt.6] and his signature

¶48

thereon.

¶49

09. Mr. Debnath, learned Addl. P.P. has brought to the notice of this court the injury reports in order to point out that it was clearly stated by the Medical Officer in the said injury report that there was alleged trauma head and chest following physical assault. From the said injury report, it can be gathered that PW-3 was admitted in the hospital on 07.03.2013. But there is no note when the appellant was referred to SSKM Hospital at Kolkata. However the said date has been revealed by the victim as 13.03.2013. Thus the appellant was in the hospital for six days and thereafter he was referred to the SSKM hospital. No medical records from the said referral hospital has been adduced by the prosecution.

¶50

10. For purpose of appreciation, it would be apposite for us to have the glimpse at the records of evidence. True it is that PW-1 Sri Kartik Das who lodged the written ejahar has stated that his son was at Ichabazar on 07.03.2013 at about 6.30 p.m. when the deceased appellant called him and took him near the railway crossing where the other accused persons joined and participated in assaulting his son by fists and blows by dint of a piece of stone. As a result, the victim

¶51

Page 7 of 12

¶52

CRL A(J) No.03 of 2016

¶53

sustained injuries. From the victim, the accused persons took away a sum of Rs.7,500/- and he was transported to the Hapania hospital. Thereafter, the victim was referred to the GBP hospital, Agartala. On the following morning i.e. 08.03.2013, the victim disclosed how the occurrence took place. He has stated in the trial as under:

¶54

“……..on 09.03.2013 myself lodged a written complaint to the O/C of Amtali P.S narrating the said incident which was to me and after knowing the contents thereon.”

¶55

He has not stated anything more.

¶56

11. PW-2, Smt. Kabita Das, the elder sister of the victim is the hearsay witness as she heard about the occurrence from her father, PW-1.

¶57

12. PW-3, the testimony of the victim as has been discussed already at the time of recording the submission of Mr. Debnath, learned Addl. P.P., that will not be repeated for keeping discussion brief and relevant.

¶58

13. PW-4, Sajal Shil has confirmed that PW-3 was injured two years ago from the date when he was examined. He was also witness to the seizure on 09.03.2013 when the wearing apparels [Exbt.MO-1] of the victim was seized by the Police Officer. But he has stated that he cannot say the names of the miscreants who assaulted the victim. As a result, he was declared hostile and what he had stated in the previous statement recorded under Section 161 of the Cr.P.C. had been shown to him and his denial to have stated those has been recorded by the trial Judge.

¶59

Page 8 of 12

¶60

CRL A(J) No.03 of 2016

¶61

14. PW-5, Sri Rupak Biswas is the brother-in-law of the victim. He saw the victim in the hospital with stitched wounds. From PW-1, he came to know that the deceased-appellant and the appellants herein had assaulted the victim and as such his evidence is of no substantive value.

¶62

15. PW-6, Sri Swapan Das is the scribe. He has stated in the trial that he had written the ejahar according to the dictation of PW-1. But he had stated that one Biswajit Das informed him over phone that PW-3 had sustained bleeding injury near Ichabazar railway crossing. He had rushed to that place immediately and found the victim with bleeding injuries on his head. Biswajit and PW-6 had shifted the victim to the Hapania hospital by their motor bike. Thereafter, the victim was referred to the GBP hospital. He had made further statement that at the time of shifting the victim to the hospital, he [PW-3] had informed him that he was assaulted by the deceased appellant and the present appellants. The said statement was confronted during the crossexamination. PW-6 has denied the suggestion that he did not state that fact to the Investigating Officer while the said Officer had been recording his statement.

¶63

16. PW-7, Indrajit Sinha is the recording officer who received the ejahar and recorded the case as Agartala GRPS Case No.1 of 2013 dated 09.03.2013. He has identified his signature with the endorsement.

¶64

17. PW-8, Sri Bimal Kumar Ghosh, had investigated the case, but he did not complete the investigation. He has narrated how he conducted the investigation by preparing the hand sketch map with

¶65

Page 9 of 12

¶66

CRL A(J) No.03 of 2016

¶67

index and caused seizure of the wearing apparels of the victim [Exbt. MO-1]. In the cross-examination, he has stated that at the time of recording his statement, the victim did not state the denomination of the amount which was taken from him by the accused persons. In this regard, there was a suggestion to the victim that the accused person did not take away any money from him. Thus it has to be inferred that taking away of money from the victim may not be true and hence the benefit should be given to the accused. In view of this finding, the charge under Section 379 of the IPC falls through.

¶68

18. The investigation was completed by PW-9, Sri Ratan Kar, a Sub-Inspector of Police attached to the Agartala GRPS. He had raided the house of the accused persons on several occasions but found them absconding. On 28.05.2013 he had received the injury report in respect of PW-3, Sri Prasenjit Das, from the Medical Officer of the GBP hospital, Agartala. On completion of the investigation he submitted the chargesheet on 09.08.2013 to the concerned court. He has denied the non-specific suggestion that the investigation was not properly done by him.

¶69

19. The testimony of PW-10 as has been discussed already while recording the submission of Mr. R.C. Debnath, learned Addl. P.P. It will serve no purpose, if his testimony is revisited as what PW-10 has stated in the trial has been elaborately noted as the part of the submission made by Mr. R.C. Debnath, learned Addl. P.P.

¶70

20. Now, the pertinent question that falls for consideration of this court is that whether the prosecution was successful in establishing the charge under Section 325/307 of the IPC or not. So far

¶71

Page 10 of 12

¶72

CRL A(J) No.03 of 2016

¶73

the charge under Section 307 of the IPC is concerned the fundamental ingredient that is required to be establish by the prosecution is the intention to commit murder. Section 307 provides that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinabove mentioned. Therefore, unless the intention to murder is established by the prosecution, nobody can be convicted under Section 307 of the IPC merely for injuries inflicted by way of assault. In the trial, none of the witnesses has stated that the accused persons had intention to murder the victim [PW-3]. Even from the circumstances this court does not find any evidence that there was any attempt to murder the victim. Moreover, there are certain congruities as pointed out by Mr. H. Debnath, learned counsel regarding the occurrence of offence and its revelation.

¶74

21. Having observed thus, this court is of the considered view that the prosecution has failed to prove the fundamental ingredient of intention to commit murder and as such the appellants are acquitted from the charge framed under Section 307 of the IPC. But so far the charge under Section 325 of the IPC is concerned, this court finds enough evidentiary material that the deceased appellant and the appellants herein caused grievous hurt within the meaning of Section 320 of the IPC under the 8^th category which designates such hurt which endangers life. Injuries would have been fatal for life. As such,

¶75

Page 11 of 12

¶76

CRL A(J) No.03 of 2016

¶77

the conviction as returned by the trial court under Section 325 read with section 34 of the IPC is affirmed. From the family of the informant, represented by the victim Sri Prasenjit Das [PW-3] a petition under Section 482 read with Section 320 of the Cr.P.C. has been filed for allowing them to compound the offence committed by the appellants No.2 and 3, being IA No.1 of 2017 [in CRL A(J) No.03 of 2016]. By the order dated 13.09.2017 it was observed by us that on conclusion of hearing that aspect would be considered. Section 325 of the IPC is not a compoundable offence, but the urge for release of the appellants can be considered as the mitigating circumstances as the rapprochement between the family of the complainant and the appellants has been achieved after the conviction was returned. That apart, on considering the nature of execution of the offence and having noticed the absence of any criminal antecedent the sentence is reduced to 2 years from which the period of detention as suffered by the appellants shall be set off.

¶78

22. In the result, the appeal stands partly allowed inasmuch as the appellants are acquitted from the charge under Section 307 and 379 of the IPC.

¶79

Send down the records forthwith.

¶80

JUDGE CHIEF JUSTICE

¶81

Moumita

¶82

Page 12 of 12

¶83

CRL A(J) No.03 of 2016

Bhanu Dey and Ors. v. the State of Tripura

Case brief

What is this about?

What did the court decide?

Bhanu Dey and Ors. v. the State of Tripura

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Union of India and Ors. Vs Kalpana Choudhury

Sangeeta Choudhury Vs State of Tripura and Ors.

National Ins. Co. Ltd. Vs Jharna Sarkar and Anr.

Nirmal Das Vs Union of India and Ors.

Soumitra Ghosh Vs Shilpi Ghosh

Aristo Texco Pvt. Ltd. Vs Xxxxxxxxxx