Maran v. State Of Tripura

JUDGMENT & ORDER (ORAL)

Heard Mr. H. K. Bhowmik, learned counsel appearing for the petitioners as well as Mr. R. C. Debnath, learned Additional Public Prosecutor appearing for the State respondent.

02. This is a petition filed under Section 397 read with Section 401 of the Cr.P.C directed against the judgment and order dated 22.09.2007 delivered in Criminal Appeal No. 63(4) of 2005 by the Addl. Sessions Judge, Court No. 2, West Tripura, Agartala. By the said judgment and order dated 22.09.2007 the judgment of conviction and order of sentence dated 25.10.2005 delivered in G. R. Case No. 812 of 2002 by the Judicial Magistrate, 2 Class, Court No. 2, Agartala, West Tripura have been affirmed.

03. By the trial court, the petitioners were convicted under Section 324 read with Section 34 of the IPC and they have been sentenced to suffer one year imprisonment with fine of Rs. 1,000/- in default thereof to suffer RI for another 3 months. It has also been directed that if the fine money is realised that should be paid to the victim at the rate as has been indicated in the said judgment and order.

04. Based on an information filed by one Asit Baran Roy, PW-9 that the miscreants namely Maran Saha, Prasanta Saha, Keshab Chakraborty, Raju Das, Bhola Bahadur, Kebal Das and Litan Paul had raided his farm to steal away the fowls and when they were challenged by the guards in the farm namely Sanjit Das, Dinesh Das and another Sanjit Das son of Subal Das, the miscreants attacked them with lathi, dao etc. and they got the severe bleeding injuries. Two of the injured guards were admitted in the Anandanagar Primary Hospital. Based on the said complaint dated 21.10.2002, Srinagar PS Case No. 19 of 2002 was registered under Section 148, 149, 326, 380, 511 of the IPC and taken up for investigation. The officer-in-charge of the Srinagar PS had entrusted the investigation with one Jahangir Hussain, PW-10, who after completing the investigation filed the charge-sheet against Maran Saha alias Uttam Saha, Prasanta Saha, Kebal Das, Bhola Bahadur, Raju Das and Keshab Chakraborty. Out of the FIR named accused persons the final police report did not send Litan Pal for facing the trial and accordingly he was discharged from the criminal liability. It is not also in dispute that another FIR named accused person namely Keshab Chakraborty was acquitted by the trial Magistrate though against him charge was framed along with the other accused persons under Section 324 read with Section 34 of the IPC by the Judicial Magistrate, Court No. 1. For the purpose of reference the main part of the charge is reproduced hereunder:

“That, on 20-21/10/2002, night at about 01'00 hours, you voluntarily caused hurt to Sanjib Das by means of Dao, lathi and iron pipe which are the instrument of cutting or which used as weapons of offence is likely to cause death etc. and thereby committed offence punishable under Section 324 of I.P.C read with Section 34 of I.P.C and within my cognizance.”

All the accused persons who were sent for facing the trial denied the said charge, pleaded innocence and claimed to face the trial.

05. In order to substantiate the charge, the prosecution adduced as many as 10 witnesses including Shri Sanjit Das, the injured victim, PW-3, another Sanjit Das who claimed to have witnessed the occurrence, PW-8 and his brother namely Dinesh Das, PW-7, who was also on duty as the guard in the said farm at the time of occurrence, and Dr. Arunava Sinha, PW-6, who authored the injury report.

06. Mr. Bhowmik, learned counsel for the petitioner has submitted that it is very difficult to have any evidence that the accused petitioners gathered nearby the farm with common intention to commit any offence. Apart that, he has submitted that the identification of the victim has to a greater extent obfuscated inasmuch as in the charge it has been mentioned that Sanjib Das was attacked and he suffered hurt whereas in the injury report and other documents the name of the injured has been recorded as Sanjit Das. Further, as submitted by Mr. Bhowmik, learned counsel that there is no evidence as to who had assaulted Sanjit Das on his head. That part of the evidence as it has appeared is improved in the trial.

07. Mr. Debnath, learned Addl. PP appearing for the State has submitted that there cannot be any confusion as to the identity of the injured person because the injured person has been identified by the name of father without leaving any space for confusion, as stated or otherwise and there is no inconsistency in this regard. He has also seriously contested the submission of Mr. Bhowmik, learned counsel for the petitioner that there has been some improvement in the trial. He has sought to make distinction between improvement from the statement elaborating the fact not falling within omission, tantamount to contradiction, during the trial. According to Mr. Debnath, learned Addl. PP, for specifying the name of one of the accused persons having assaulted on the head, corroborated by the other accused cannot be a plea for exoneration of the accused persons from the charge, when their common intention is proved from action and preparation with weapon of offence.

08. Having regard to the nature of the rival contentions as advanced by the learned counsel for the parties, it would be apposite for this Court to make a survey shortly of the evidence as led by the prosecution.

09. Manik Das, PW-1, is a hearsay witness who heard from one Dinesh Das, PW-7, that he could somehow save himself but Sanjit Das had been injured. He has also stated that after hue and cry, people from the locality gathered there and he was also there and found Sanjit Das was lying in a pool of blood. He had injury on his head and blood was oozing from that part. They arranged for his transportation to the hospital. He is also witness of the seizure of a dao with wooden handle, one long iron pipe and three pieces of lathi by the police officer and he identified his signature in the seizure list.

PW-2, Badal Das, is another witness, per chance he was in the place of occurrence and according to him while he was returning after attending the puja at his uncle's house, he heard some commotion nearby the farm and he rushed to that spot. On the way he met Kebal Das, one of the accused petitioners. He had witnessed other 5/6 persons in the spot. According to him, Kebal Das tried to assault him with a stick. He also had identified those persons who were present at the place of occurrence as Raju Das, Bhola Bahadur, Prasanta Saha and Uttam Saha. On reaching the farm he saw that Sanjib was with the gaping injury on his head lying there. He later on learnt from Sanjit, the victim, that the accused persons had assaulted him with the stick on that very night. He has stated that another Sanjit was also present at the spot, which has been corroborated the victim Sanjit. To a question posed by the court, he has responded by saying that the victim was taken to the house of Narayan Das, adjacent to the farm, for giving some first aid. Thereafter, the police officer on the next day seized a dao, three pieces of lathi and one iron pipe and he was witness to that seizure. He identified his signature.

This witness in the cross-examination has clarified the identity of two Sanjit in the follow terms:

“The name of father of my brother Sanjit Das is Subal Das. The name of the father of Dinesh Das and his brother Sanjit is Banabashi Das.”

He has stated that he had made the statement that Kebal Das attempted to assault him but when he was confronted with his previous statement recorded under Section 161 of the Cr.P.C he did not find such statement there.

PW-3, Sanjit Das, is the injured victim. He has stated categorically stated that on the night of occurrence he was on duty with Dinesh Das, his brother-in-law and Sanjit Das who is the younger brother of Dinesh Das. At about 1-30 in that night he heard a sound that appearing that net was being cut. All of them rushed to that part of the farm and found in a nearby bamboo bush one Maran Saha, who is a resident of the same locality, was hiding and he was holding a dao. When he was challenged he cried out loudly and other accused persons namely Raju Das, Prasanta Saha, Keshab Chakraborty, Kebal Das and Bhola rushed to the spot and thereafter they started assaulting him. Accused Maran gave him a blow with his dao on his head and he suffered bleeding injuries. Raju Das assaulted him with a stick of iron pipe and Kebal Das and Prasanta Das assaulted him with a bamboo stick. He has identified the accused persons by the electric light and also by the natural light as that night was fully moonlit. However, he has admitted in the cross examination that he did not specifically state to the investigating officer as regards, who used which weapon.

PW-4, Gopal Das, also appeared after the occurrence and he found Sanjit Das son of Subal Das lying injured and he was bleeding from his head.

PW-5, Himangshu Das had also appeared at the residence of Narayan Das after the occurrence and found Sanjit being nursed in his residence.

PW-6, Dr. Arunava Sinha, the author of the injury report, Exbt.2, has stated as under:

“A stitched wound measuring 1 length over the volt of the head area. The injury was simple in nature and caused by blunt weapon. Excess scalp was normal. Wound was fresh during admission. The patient was discharged on 25-10-02. The report was given as per record of bed head tickets.”

In the cross-examination he has reaffirmed that the injury was simple in nature and caused by blunt weapon.

PW-7, Dinesh Das, who claimed to have witnessed the entire occurrence, as on the night of occurrence, he was guarding the farm of PW-9. He has stated that on that night, he along with his brother Sanjit and another Sanjit were performing guard duty in that farm. At about 1/1-30 in the night they heard sounds of net being cut. All of them rushed to enquire about the source of that sound. After a lot of search, they discovered one Maran Saha was hiding in a bamboo bush and he was asked to accompany them inside the farm. Maran had started shouting aloud. Thereafter, Kebal Das armed with stick assaulted his brother Sanjit in his neck. 4/5 persons also joined in the assault. The persons were identified by him and they were Bhola, Raju, Prasanta and Keshab. The accused persons had assaulted the other Sanjit. He informed the incident to Manik Das, PW-1. He has further stated that the night was moonlit and there was many electric lampposts sufficiently lighting the place of occurrence.

PW-8 is the other Sanjit Das who was also on duty for guarding the farm. He has stated that on the night of Laxmi Puja they heard sounds of net being cut on that part where the fowls were kept. They went to enquire the source. They saw one Maran Saha hiding behind the bamboo bush. When they tried to bring him inside the farm, he suddenly raised cry. Thereafter, other accused persons namely Raju, Prasanta, Bhola, Keshab and Kebal came to the spot and assaulted him, the other Sanjit and his brother Dinesh. In the cross-examination, he has stated that Sanjit was assaulted with a dao on the head and also with sticks. He has stated that he made the statement to the investigating officer that Kebal had assaulted him with a stick on the neck. When his attention was drawn he could not find out any statement of such nature in the previous statement.

PW-9, Asit Baran Roy who after receiving the information from the guards filed the FIR, Exbt.1 is the owner of the farm. Based on such report the investigation had started against the accused persons as stated.

PW-10, Jahangir Hossen is the investigating officer who has conducted the investigation and filed the charge-sheet on its completion. He has also narrated about the seizure of the weapons of offence from the place of occurrence. He has also stated that he did not mark any electric post or any electric light in the farm. He has also confirmed that Badal Das, PW-2, did not reveal to him any name during his examination under Section 161 of the Cr.P.C, except the name of Kebal Das. PW-7, Dinesh Das as well did not make any statement to him that his brother was assaulted by Kebal with a stick. PW-8 did not state to him that he was assaulted by Kebal with a stick on the neck.

10. The charge as reproduced would demonstrate that the entire charge is confined to the assault of Sanjib Das by means of dao, lathi, iron pipes and that does not state about the assault of any other persons and as such the appreciation of evidence be made having its focus on the charge.

11. After going through the testimonies of the witness as well as the injury report, this Court is of the opinion that the prosecution has succeeded to prove that Sanjit Das was assaulted by the accused persons and he had suffered serious injury on his head. Even though, Mr. Bhowmik, learned counsel for the petitioners has contended that there is no mark of injury on the person of Sanjit Das except the head injury. It would not definitely lead to inference that he was not assaulted by other weapons of offence as alleged. In this regard, this Court must respond by stating that all the time the assault does not leave the mark of injury or haematoma on the person who has been assaulted by means of weapons. Even if the person who was assaulted causing the injury on the head of Sanjit Das cannot be identified, but when the charge has been framed under Sections 324 and 34 of the IPC and the presence of the accused persons have been well proved by the prosecution, the petitioners cannot escape from their criminal liability. So far the identity of the injured victim is concerned the prosecution has established that well with adequate explanation. Mere mistake in typing or in pronunciation shall not smudge or dilute the hard evidence.

12. Having held so, this Court is of the view that the conviction under Sections 324 and 34 of the IPC does not suffer from any infirmity. It has been noticed that the appellate court has reduced the sentence of Maran Saha from two months RI and fine of Rs. 1,000/- and in default to suffer further RI for three months to one month's SI only and for others the sentence had been reduced to SI for two months without any fine as awarded by the trial Magistrate. The reasons provided for reduction of the sentence for the accused petitioner namely Maran Saha is surprising and that is based on the finding that Maran Saha had been provoked by the injured victim and the other two who received hurt. This Court has also noticed that the three guards stated differently as to their treatment to Maran Saha. But from nowhere it has appeared before this Court that Maran Saha was attacked by the guards or was assaulted by them. In absence of any appeal against the reduction of the sentence, this court cannot interfere with the sentence as awarded by the Sessions Judge, West Tripura, Agartala.

13. Having regard to the circumstances and the manner of execution of the offence, this court is inclined to reduce the sentence for all the revisional petitioners to SI for one month. With this modification in the sentence, this revisional petition stands dismissed.

Send down the LCRs forthwith.

It is needless to mention that if the revisional petitioners suffered any imprisonment during the period of investigation or the trial or even thereafter that shall be set off from their sentence.