Tripura High Court
Sri Nishi Ranjan Majumder vs The State Of Tripura on 2 May, 2020
Bench: S. Talapatra, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL. A.(J) 35 of 2017
Sri Nishi Ranjan Majumder,
son of Khagendra Majumder, resident of Bhati Dudhpur,
P.S. Kumarghat, District- Unakoti District, Tripura
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Mr. P. Majumder,
Legal Aid Counsel
For Respondent(s) : Mr. Ratan Datta, PP
Date of hearing and delivery
of Judgment & Order : 22.01.2020
Whether fit for reporting : No
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order (ORAL)
22/01/2020
(Talapatra, J.)
Heard Mr. P Majumder, learned Legal Aid counsel appearing for the appellant and Mr. Ratan Datta, learned PP appearing for the respondent-State.
2. This appeal emerges from the judgment of conviction dated 20.03.2017 delivered in ST 26(U/K) of 2015 by the Sessions Judge, Unakoti Judicial district, Kailasahar, Tripura. By the said judgment, the appellant has been convicted under Section 326-A of the IPC and sentenced to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 25,000/- with default stipulation.
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3. The genesis of the prosecution is rooted in the complaint filed by one Gautam Dey (PW-1). In the said complaint (Exhibit-
1) it has been revealed that on 05.12.2014 when the complainant was returning home at around 9.00 pm in the evening, Nishi Ranjan Majumder, the appellant herein and his wife Smt. Satya Rani Majumder, threw acid on him near his house. Resultantly, his nose, face, neck, chest, back and both the hands got burnt. He went to the nearby Health Centre at 82 miles and underwent treatment. In the complaint, PW-1 has further stated that, he had the burning sensation over his whole body. In the complaint, he has made an additional statement to explain the delay. He has stated that, he was busy with his treatment so he could not file the complaint in time. It may be noted that the complaint was filed on 15.12.2014 when the incident took place on 05.12.2014.
4. On the basis of the said complaint (Exhibit-1), Manu PS case No. 28 of 2014 under Sections 326-A/34 of the IPC was registered and was taken up for investigation. On completion of the investigation, the police filed the final report against the appellant and his wife, namely, Smt. Satya Rani Majumder. Since the offence punishable under Section 326-A of the IPC is exclusively triable by the Sessions Judge, the police papers were committed to the court of Sessions Judge, Unakoti Judicial District, Kailasahar. After taking cognizance, the Sessions Judge framed the charge against both the accused-persons under Section 326-A read with section 34 of the IPC. The accused Page 3 of 11 persons including the appellant denied the charge and claimed to be tried in accordance with law.
5. To substantiate the charge, as many as 8(eight) witnesses were adduced by the prosecution including the victim- complainant (PW-1) and Dr. Ajit Debbarma (PW-8) who treated the victim. That apart, the prosecution has introduced as many as 5(five) documentary evidence including the injury report of the victim and one Indramohan Namasudra (Exhibits 4 and 5 respectively). After the prosecution evidence was recorded, the appellant and the other co-accused, as stated, were examined under Section 313 Cr.P.C. for having their response on the incriminating materials those surfaced in the evidence.
6. Having appreciated the evidences, the Sessions Judge, Unakoti Judicial District, Kailasahar, returned the said finding of conviction. Consequently he passed the order of sentence i.e. to suffer rigorous imprisonment for 10(ten) years and to pay fine of Rs. 25,000/- with default stipulation. In this appeal those judgment and order are under challenge.
7. Mr. P. Majumder, learned Legal Aid counsel has submitted that the prosecution has utterly failed to prove the substance that was thrown on the victim and one Indramohan Namasudra, to be acid or precisely, the formic acid, as alleged. The evidence referred, relating to the injury concerned, shows that the injury is simple in nature. Moreover, the injury report of the victim does not at all tally with the description of the injuries he has narrated in his complaint. Strange enough, for ten days no complaint was Page 4 of 11 filed but, after ten days suddenly, the complaint was filed and reason given for such delay was that for pursuing the treatment the complaint could not be filed within the immediate time of occurrence. But, in the trial, the explanation was quite different and a different story was introduced by the victim (PW-1). Thus, Mr. Majumder, has urged this court to interfere with the judgment of conviction and the consequential order of sentence.
8. From the other side, Mr. Ratan Datta, learned Public Prosecutor has submitted that the Medical Officer (PW-8) who treated the victim in his report has categorically observed that the substance that was thrown to the victim was the formic acid and the injuries were grievous in nature. Therefore, there cannot be any amount of confusion that the substance that was thrown was formic acid, and as the appellant had thrown the acid on PW- 1 and one Indramohan Namasudra (PW-2) no interference from this court is called for. Acid attack is one of the heinous crime and, as such, no leniency be shown.
9. Since, learned counsel for the appellant has emphasized only on the nature of substance thrown, this court is not called upon to go for the other objections but, having appreciated the evidence, as led by the prosecution, this court finds that the involvement of the appellant has been established by the prosecution beyond reasonable doubt inasmuch as PW-1 saw the appellant and his wife from a close quarters when he was crossing them and he has made the statement in the trial that when he came nearer to the accused-persons, the appellant Page 5 of 11 suddenly had thrown the acid from the mug on his chest, face and shoulder and also on his hands. The acid was also sprinkled to the body of Indramohan Namasudra. Initially, they could not feel the acid which was thrown upon them but, after 5 minutes, they got the burning sensation, then they started crying out and jumped on to the mud. Many people including his wife tried to wash off face and body by water. Thereafter, they were shifted to the hospital at 82 Miles. Lateron, the police arrested the accused persons but, in the cross-examination, PW-1 however did not state by which light he could identify the appellant in that hour which was naturally dark and he has uncandidly stated that he could not remember whether the contents of the FIR was read over to him or not but, he has explained that the acid was thrown on him from a close quarters.
PW-2, whose name however, is not disclosed by PW-1 in the complaint (Exhibit-1) has stated in the trial that on 05.12.2014 around 9.00 pm when Gautam Dey (PW-1) came to his house for informing about his plan to visit Kanchanpur and after such discussion when he was returning, on the way, when they came infront of the hotel of the appellant, he found that the appellant and the complainant (PW-1) were altering and suddenly, the appellant threw some liquid on the body of Gautam Dey and that liquid also sprinkled on his body. Thereafter, they were taken to the hospital at 82 Miles. He has also stated that the wife of the appellant Satya Rani Majumder was trying to control both the persons at the time of altercation. He has Page 6 of 11 categorically stated in the trial that due to throwing of acid, he got burning on his neck, chest, shoulder, hands and leg. He has further stated that there was electric light. He has urged that the said fact was stated to the Investigating Officer.
PW-3, Smt. Dipali Dey, wife of PW-1 has stated a different story that Satya Rani Majumder had a lathi in her hand and the place was lit from the electric light. She had appeared in the place of occurrence on hearing the alarm raised by her husband. He was feeling burning sensation on his body when the wife and son of Indramohan Namasudra came there. He was shifted to the hospital by an auto rickshaw. She did not talk about the injury sustained by Indramohan Namasudra. In the cross-examination, PW-3 has stated that as a new hotel was started by them and for that reason the relation with the appellant got strained as he had started the business earlier. She has claimed that she has stated to the Investigating Officer that the place was lit by electric light.
PW-4, Smt. Jayamati Namasudra, wife of PW-2, has stated in the trial that when her husband and PW-1 were crossing the hotel of the appellant, they suddenly cried out. She saw the appellant throwing liquid on them. Then, she rushed to the place. PWs 1 and 2 were crying out with burning sensation. With the help of the local people, namely, Kalpana Das and Dipak Das, who had assembled there, she managed to shift her husband and Gautam Dey to the hospital at 82 Miles by an auto rickshaw. According to her, different parts of the body of her husband were burnt as he sustained grievous injury. She has also claimed that Page 7 of 11 she has stated to the Investigating Officer that there was electric light by which everything was visible. She has denied the other suggestions.
PW-5, Smt. Kalpana Das, an independent witness, who rushed to the place of occurrence, has stated that after hearing hue and cry, she came from the hotel of Nishi Ranjan Majumder (the appellant herein) and found Gautam Dey (PW-1) and Indramohan Namasudra (PW-2) were groaning with burning sensation. They were shifted to the hospital. She has added that she heard later on that acid was thrown on them. She was in the business of running a hotel and she has also stated that PW-1 did not start his hotel on the land of the appellant but, on his land. She did not mention anything about the dispute in respect of opening of the hotel by PW-1.
PW-6, Dipak Das, another independent witness, has narrated the same story as stated by PW-5. They were not the eye witnesses. They appeared in the immediate aftermath of the occurrence.
PW-7, Subimal Barman is the Investigating Officer and he has narrated briefly how he had conducted the investigation including preparation of the site map with index, recorded the statement of the witnesses and collected the injury reports from the hospital. Having found a prima facie case established on culmination of the investigation, he filed the charge sheet under Section 326-A/34 of the IPC against both the accused persons. He has also in the cross-examination narrated what he did record Page 8 of 11 during the examination but, he has admitted that PW-4 did not state to him that her husband, Indramohan Namasudra and Gautam Dey came together upto the hotel of the appelland and he has confirmed that the said witness did not tell him that there was electric light. Even she did not tell that PW-5 and PW-6 were present in the place of occurrence in the wake of the occurrence. PW-7 has categorically stated that during investigation it surfaced to him that there was a long standing dispute between PW-1 and the appellant.
PW-8, Dr. Ajit Debbarma, is the most vital witness for the purpose. PW-8, on 05.12.2014 was the Medical Officer in Primary Health Centre at 82 Miles. On that date at about 9.30 pm, PW-1 and PW-2 were examined by him with history of acid attack. He found „scald burn on the face including oral cavity‟. Cause of injury was due to acid spray and nature of injury was grievous and age of the injury was half an hour before the treatment. The patient was released from the hospital on 10.12.2014. He has identified the injury report (Exhibit-4) in respect of PW-1 and the injury report (Exhibit-5) in respect of PW-2. He has stated that PW-2 got „minor‟ „scald‟ burn on both the arms. In the cross- examination, he has categorically stated that he did not mention the history of injury, as stated by the patient but, he could not say whether PW-1 did attend the higher centre for better treatment as per his advise. He has admitted that in the report of Gautam Dey (PW-1) and Indramohan Namasudra (PW-2) it has been mentioned that the substance thrown was probably formic Page 9 of 11 acid was utilized in the incident. He has further added that he cannot say whether the acid had been used in the incident or whether a sample of such was taken by the police for examination or not. Formic acid, according to him, was generally used to prepare rubber sheet and widely available in the village.
10. This court has critically examined the injury report where it is found that the injuries received by PW-1 is "scald burn on face and oral cavity‟ and on no other parts. The nature of injury, according to doctor, is grievous in nature and he has observed "probably formic acid was used" but, in the injury report of PW-2, it is mentioned that the injury was simple in nature as PW-2 received minor scald burn on both arms. In the report also it has been observed that "probably formic acid" was used. In this regard, the finding of the Sessions Judge is as follows:
"The other point made by learned defence counsel is that there is no expert report that it was acid that was thrown on the victims. This argument does not seem tenable. First of all, the doctor has stated in his report and evidence that perhaps formic acid was thrown on them. Learned defence counsel has taken umbrage of the word 'perhaps'. But in view of the facts and circumstances of the case I think it is too tenuous a point to harp on. Because, though there is no report of a chemical examiner, but the manner of attack and the nature of injury suffered by the victims, do say loud and clear that it was an attack by acid. There is no reason to think that it was water or keronene oil or mustard oil. Had it been so, such type of wound and suffering like scald would not have been caused on the body of the victims. Situated thus, there seems to be no point in brooding about the expert report on the nature of the acid. Moreover, the accused used a mug to throw the acid and obviously, after the throw, the contents of the mug must have been exhausted and nothing was left to be preserved for being examined by expert. In that situation the question of examination by expert becomes redundant. But for that, the other clinching evidence that has come forth against the accused person, need not to be negated and discarded.
In this context it may be apposite to refer to the citation of the apex court in (2003)7 SCC 56B wherein it was held that when ocular evidence is found to be cogent, consistent and trustworthy, the same cannot be discarded merely on the basis of some hypothetical answers of medical witnesses".
[Emphasis added]
11. This court is unable to accept the analogy of the Sessions Judge for the simple reason that the said observation is wholly on surmise not on hard evidence inasmuch as whether the acid has Page 10 of 11 been used or not and the nature of acid that was used cannot gathered merely from the „scald‟ burn. The „scald‟ burn can be done even by the hot water. Unless by the forensic examination, the corrosive substance that has been used is held to be acid, no conviction under Section 326-A IPC is permissible. On the basis of surmise or probability, conviction under Section 326-A IPC cannot be returned inasmuch as no trial court should be oblivious that the minimum sentence as prescribed by law for committing such offence is ten years. The prosecution case, as established by the evidence, generally is not cohesive. However, so far the objection as to the identification of the accused, this court will not entertain that objection inasmuch as PW-1 has categorically stated that he saw the appellant from a close quarters. Since, Satya Rani Majumder, the co-accused has been acquitted on benefit of doubt, this court will not embark on further analysis of the evidence. Moreover, existence of the previous enmity is another factor which cannot be so conveniently brushed aside so far the brewing allegations are concerned. To be precise, this court does not find any legal evidence to infer that the substance thrown was acid. The opinion of the doctor is based on the history narrated by the injured, not based on any scientific examination. For this reason, this court would give the benefit to the appellant, as the prosecution has failed to identify substance by evidence.
12. Even the injuries, as narrated by PW-1 cannot be brought under Section 320 IPC which illustrates and provides the category Page 11 of 11 category of injuries, which can be brought within the definition of grievous hurt. Hence, the appellant is acquitted from the charge as brought under Section 326-A IPC on benefit of doubt in the circumstance but, this court finds that PW-1, in particular, had received simple injury of „scald‟ burn. Thus, in exercise of power conferred under Section 222 Cr.P.C., the appellant is convicted under Section 323 IPC without framing any formal charge for the reason that the offence punishable under Section 323 IPC is cognate and minor offence to the offence punishable under Section 326-A IPC. In consequence of the conviction as returned under Section 323 IPC, the appellant is sentenced to suffer one year rigorous imprisonment.
12. Both Mr. Majumder, learned Legal aid counsel and Mr. Ratan Datta, learned Public Prosecutor have stated that the appellant has suffered rigorous imprisonment for more than two years and ten months (approximately). Having this fact found in the record, it is ordered that the appellant shall be released forthwith, if he is not wanted in any other case. In the result, the appeal stands partly allowed. Send down the LCRs forthwith.
Copy of this order be furnished to Mr. P. Majumder, learned Legal Aid Counsel for his use.
JUDGE JUDGE Saikat