Partly allowed

Ratan Das v. The State Of Tripura

Tripura HC18 Nov 2017Crl.A(J)/33/2017

Case brief

AI extract

What is this about?

Appellant appealed conviction under Section 326 IPC without a framed charge. High Court held non-framing of charge was a material irregularity violating fair trial rights under Section 222 CrPC and Article 20(2) Constitution. Appeal partly allowed; matter remanded for framing charge.

What did the court decide?

Impugned judgment set aside; matter remanded to trial court for framing charge under Section 326 IPC and allowing prosecution to substantiate it.

Ratan Das Vs The State Of Tripura — Cheating and Forgery | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA AGARTALA

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CRL.A(J)No.33 of 2017

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Shri Ratan Das,

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son of Shri Bhabani Das, resident of South Ganganagar, P.O. and P.S. Dharmanagar, District: North Tripura

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………………… Convict-Appellant

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–Vs–

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The State of Tripura,

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represented by the Secretary, to the Government of Tripura, Home Department, Agartala

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………………… Respondent

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B E F O R E

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

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For the appellant : Mr. Raju Datta, Advocate For the respondent : Mr. S. Sarkar, P.P. Date of hearing & date of judgment & order : 18.11.2017 Yes No Whether fit for reporting : √

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ORDER (ORAL)

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( Talapatra J.)

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Heard Mr. R. Datta, learned counsel appearing for

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the appellant as well as Mr. S. Sarkar, learned P.P. appearing for the state.

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CRL. A(J) No.33 of 2017

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Page 1 of 8

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02. By means of this appeal, the convict, hereinafter referred to as the appellant, has challenged the judgment of conviction and order of sentence dated 15.12.2016 delivered in Case No.ST/T-1/0000023/2016. The appellant has been convicted under Section 326 of the IPC and pursuant to that conviction, he has been sentenced to suffer rigorous imprisonment for 4(four) years and to pay a fine of Rs.10,000/, in default to suffer further rigorous imprisonment for 6(six) months for committing the offence punishable under Section 326 of the IPC.

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03. One Ganesh Pal [PW-1] by filing a written ejahar [Exbt.2] disclosed that his sister Rita Pal was given marriage with the appellant and immediately after the marriage her sister subjected to mental and physical torture. Two months ago her sister was driven out from the matrimonial home by the appellant without any reason with her two children. She was living with him since then.

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04. On 20.01.2016, the appellant came to the house of the informant and set fire in the bed of his sister through a hole with intention to kill her. As consequence, her sister and her two minor sons sleeping on the bed sustained grievous injuries. At the time of filing the said ejahar they were under treatment in Dharmanagar Hospital. When his mother saw the fire, she

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Page 2 of 8

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raised alarm and the neighbouring people rushed there. Seeing the mob, the appellant fled away from the place of occurrence.

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05. Based on the said ejahar [Exbt.2] Dharmanagar Women Police Station Case No.2016 WDN 002 of 2016 was registered under Section 498A/307/436/326 of the IPC and taken up for investigation. On completion of the investigation, the final police report chargesheeting the appellant was filed. Since the case was exclusively triable by the court of sessions, the Sessions Judge framed the charge under Section 498A of the IPC and Section 307 of the IPC. The appellant pleaded innocence and claimed to be tried. In order to substantiate the charge, the prosecution adduced as many as 10(ten) witnesses including the victim, the Doctor who had treated her and the Investigating Officer. 8(eight) [Exbt.1-6] documents were admitted in the evidence.

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06. At the outset, Mr. R. Datta, learned counsel appearing for the appellant has submitted that though the charge was framed under Section 498A and 307 of the IPC, but none of the charges could be established by the prosecution. The appellant was discharged from those charges but on completion of trial, the appellant was convicted under Section 326 of the IPC without framing any charge under that section by the impugned judgment. The trial court has observed that there is no eye witness who saw the accused throwing any

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CRL. A(J) No.33 of 2017

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Page 3 of 8

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combustible substance inside the hut. But his presence in the place of occurrence has been established by the testimony of PW-2. After the scrutiny of the evidence particularly the testimonies of PWs 1, 2, 3 and 6 it appeared to the Sessions judge [the trial Judge] that the appellant had a dispute with his wife, Rita and accordingly Rita [PW-6] started staying at her father’s place. Since there was no illegal demand, the harassment simplicitor is not sufficient to establish the charge under Section 498A of the IPC. Further, it has been held that there is no evidence as regards the intention to kill and hence the charge under Section 304 of the IPC should fall through. In para-18 of the judgment the trial court has observed as under:

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“But it is clear that the injured PW 6 and her children sustained serious burnt injuries due to throwing of burning substance inside the hut and the circumstance shows that it is the accused only who threw the burning substance inside the hut. So, the offence under section 326 of the Indian Penal Code as against the accused is proved beyond all reasonable shadow of doubt.”

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07. Mr. R. Datta, learned counsel appearing for the appellant has seriously criticised the above finding contending that the charge was not framed under Section 326 of the IPC by the court considering the offence punishable under Section 326 of the Indian Penal Code cognate to the offence for which the charge was initially framed. Even though punishment under Section 326 of the IPC prescribes punishment no lesser than the punishment prescribed for commission of offence under

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Page 4 of 8

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Section 307 of the IPC. The punishment under Section 326 of the IPC now prescribes for imprisonment for life or with imprisonment of either description for a term which may extend to 10(ten) years and shall also be liable to fine. Thus, the offence punishable under Section 326 cannot be stated to be a lesser offence in comparison to the offence punishable under Section 307 of the IPC for the same reason, inasmuch as imprisonment prescribed for commission of the said offence is to the extent of 10(ten) years and fine and if the hurt is caused by the person then it may extent to life imprisonment. It is apparent on the face of those offences punishable under Section 498A of the IPC and 307 of the IPC cannot be stated to be the offence cognate to the offence punishable under Section 326 of the IPC. Therefore, the Sessions Judge has committed a serious illegality by convicting the appellant under Section 326 of the IPC without framing the regular charge. As such, the impugned judgment of conviction and order of sentence be set aside by this court and the appellant be set at liberty.

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08. Mr. S. Sarkar, learned P.P. appearing for the state has submitted that for such irregularity, the appellant cannot be acquitted. It is incumbent that the matter be remanded to the trial court for framing charge under Section 326 of the IPC and extend fresh opportunity to the accused person to cross-

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Page 5 of 8

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examine or examine witnesses to defend him against the charge under Section 326 of the IPC.

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09. This court has noticed that the state has not preferred any appeal against the finding returned by the Sessions court by discharging the appellant from the charges framed under Sections 498A and 307 of the IPC. Therefore, hardly there is any scope to reverse the findings in that regard. In this regard, even this court cannot exercise any power for reversing that finding. Thus, the appellant is now protected under Article 20(2) of the Constitution of India. There is no requirement of making extensive re-appreciation of the evidence. This court is of the view that by returning the finding of conviction under Section 326 of the IPC without framing charge, the trial court has committed a material and substantive irregularity whereby the accused’s right to fair trial has been jeopardised inasmuch as the extent and ambit of power under Section 222 of the Cr.P.C. is well delineated. It is not as flexible as the trial court thought and exercised.

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10. Section 222 of the Cr.P.C. provides that there are two fundamental ingredients which are to be met to convict a person without framing charge. When it is found from the evidentiary material, a commission of offence has been established by the prosecution and that (i) the offence is minor to that of the offence for which the accused is charged and (ii)

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Page 6 of 8

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it was a minor offence in comparison to that of the offence which the accused was charged with. Even for the commission of the minor offence as referred under Section 222 of the Cr.P.C. the accused cannot be convicted unless that offence is cognate to the offence for which the charge has been framed. For that reason, sub-section 4 of Section 222 of the Cr.P.C. provides that:

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“Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.”

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11. It is well established that to sustain a charge under Section 326 of the IPC ‘grievous hurt’ has to be proved to the hilt. After scrutiny of the evidence, this court is satisfied that there are materials for framing charge under Section 326 of the IPC against the appellant and, as such appellant cannot be acquitted for the said irregularity and that would destroy the victim’s right to justice. In view of that, the impugned judgment of conviction and order of sentence is set aside. However, the matter is remanded to the trial court for framing the charge under Section 326 of the IPC and to allow the prosecution to substantiate the charge following the procedure as laid down in law and in due process. Needless to say, the appellant would be entitled to raise all defences and to establish such defence or to shift the entire burden onto the prosecution by adducing or

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Page 7 of 8

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maintaining the silence fully or partly. The trial shall be completed as expeditiously as possible. This court is not inclined to release the appellant on bail, but if the trial court is satisfied from the conduct of the appellant, the trial court may allow the appellant to remain on bail during the trial.

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12. Having observed thus, this appeal stands partly allowed subject to the observation made herein above.

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Send down the records forthwith.

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JUDGE CHIEF JUSTICE

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Moumita

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CRL. A(J) No.33 of 2017

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Ratan Das v. The State Of Tripura

Case brief

What is this about?

What did the court decide?

Ratan Das v. The State Of Tripura

Case brief

What is this about?

What did the court decide?

What the court decided

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