Tripura High Court
Smti. Prava Sarkar vs The State Of Tripura on 16 March, 2022
Bench: T. Amarnath Goud, Arindam Lodh
Page 1 of 11
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.A(J). No. 21 of 2020
1. Smti. Prava Sarkar, wife of Sri Kajal Sarkar, resident of D. M.
Colony, P.S. Sidhai, District: West Tripura, Pin-79900.
.....Appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mr. Kohinoor N. Bhattacharyya, Advocate.
For Respondent(s) : Mr. Sumit Debnath, Addl. P.P.
Date of hearing : 09.03.2022
Date of delivery of
judgment and order : 16.03.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. Kohinoor N. Bhattacharyya, learned counsel appearing for the appellant and Mr. S. Debnath, learned Addl. Public Prosecutor appearing for the State of Tripura-respondent.
[2] This criminal appeal under Section- 374 of the Code of Criminal Procedure is directed against the judgment and order of conviction dated 26.11.2019, passed by the learned Addl. Sessions Judge, West Tripura, Agartala, (Court No.5) in Case No. S.T.(T-1) 30 of 2017, for setting aside the conviction and sentence and to acquit the appellant at liberty.
[3] Brief facts, leading to this case, is that on 25.07.2016 in the morning there was a quarrel in between the children at the Anganwadi Centre at DM Tilla around 12.45pm Smt. Rakhi Deb Sarkar, the victim, when reached in front of the house of accused, at that time, the accused threw acid on the face Page 2 of 11 of the victim and thereby started running away. Immediately, the informant accompanied with one Smt. Minakshi Sarkar managed to detain the accused and informed the matter to the police station. When police came, the accused was handed over to the police and a written complaint was also made to SI Amar Kishore Debbarma, hereinafter referred as the I.O. On receipt of such complaint the alleged offence being cognizable in nature, the I.O. initiated investigation at the spot. As a part of investigation, the I.O. prepared the hand sketch map of the place of occurrence with separate index. The I.O. also further seized a plastic drum containing 200 grams of acid from the dwelling house of the accused and also the bowl by which the accused threw acid upon the victim by way of preparing seizure list in presence of witnesses. The I.O. also further examined and recorded the statement of the informant namely, Kalpana Sarkar, Sri Rajkumar Sarkar, Sri Nandu Bardhan, the victim Smt. Rakhi Deb (Sarkar). On returning the P.S., the I.O. placed the written complaint with the officer in charge Sidhai Police Station.
[4] Written complaint being placed with the officer in charge Sidhai P.S. a specific case vide Sidhai P.S. Case No.2016/SDI/40 under Sections- 326A of IPC was registered. Investigation of this case was entrusted to the I.O. The I.O. thereafter examined and recorded the statement of victim Rakhi Sarkar and Sri Braja Kishore Sharma. The I.O. also further collected the injury report of the victim from AGMC and GBP hospital, Agartala. The seized acid was also examined at TSFSL, Agartala. Finally, a prima facie case having been found, the I.O. laid Sidhai PS C/S No. 49 of 2016 dated 31.10.2016 under Section-326A of IPC against the FIR named accused namely, Prava Sarkar.
[5] On receipt of the charge sheet, the learned CJM, West Tripura took cognizance of the offence punishable under Section-326A of IPC and transferred the case to the Court of Ld. JMFC, Agartala, West Tripura, Court No.7 who after compliance of the provisions of Section-207 Cr. P.C. committed the case to the Court of learned Addl. Sessions Judge, West Tripura, Agartala.
Page 3 of 11[6] Upon hearing the parties, a prima facie case having been found, charge punishable under Section-326A of IPC was framed against the accused- appellant to which she pleaded not guilty and claimed to be tried. In order to substantiate the case, the prosecution has examined as many as 9 witnesses including the victim as PW-1, the informant as PW-2 and the I.O. as PW-8. PWs-3, 4 and 5 are the neighbours, PW-6 Sri Suman Kumar Chakraborty (Deputy Director SFSL), PW-7 Sri Brajakishore Sharma (scribe), PW-9 Dr. Shyam Sundar Saha, who examined the victim and prepared the injury report Exbt.6. After closure of the prosecution evidence, the accused-appellant was examined under Section-313 of Cr. P.C. to which the appellant denied the allegations and desired to adduce evidence.
[7] On the basis of the materials available on record and after hearing argument advanced by the learned counsel appearing for the parties, the learned Addl. Sessions Judge, West Tripura, Agartala, (Court No.5), on 26.11.2019 convicted the appellant under Section-326A of IPC as aforementioned.
[8] The appellant herein, being aggrieved by and dissatisfied with against the impugned judgment and order of conviction dated 26.11.2019, has preferred this appeal on the following grounds:
[9] Mr. Bhattacharyya, learned counsel appearing for the appellant in support of his case has argued that the learned Addl. Sessions Judge, West Tripura, Agartala has committed error of law and fact in passing the impugned judgment. He has further contended that the trial court has failed to appreciate the evidences on record and arrived at a wrong conclusion that the accused- appellant is guilty of the alleged offence under Section-326A of IPC.
[10] Further, he has submitted that PWs-1, 2 and 5 have stated in their evidence that the incident took place on 25.07.2016, but PW-4 stated that the incident took place on 26.07.2016 and there is contradiction regarding the time of incident as per version of different witnesses and also contradiction regarding her statement. PW-1 stated that from the date of occurrence, there was quarrel between her child and the child of Smti. Prava Sarkar, the Page 4 of 11 appellant herein, at Anganwadi Centre and at about 12.30 hours, while Smti. Rakhi Deb Sarkar was coming from the house of Smti. Kalpana Sarkar (PW-2) and reached in front of the house of the appellant, she threw some liquid upon the victim by which she received burn injury and she became senseless.
[11] He has further submitted that if on the same day in the morning, the child of the victim and the accused-appellant had been to Anganwadi Centre, where they had quarrel. It is not reasonable that the victim will have come out from the house of Smti. Kalpana Sarkar at around 12.30 hours on the same day, because the Anganwadi Centre closes at 1.00pm. There is no indication as to what is the distance between the gates of the house of Smti. Kalpana Sarkar and the appellant. Therefore, there is no reason to hold beyond reasonable doubt that Smti. Kalpana Sarkar could have seen the accused- appellant throwing acid upon the victim in front of the house of the accused. Thus, it cannot be said to be beyond reasonable doubt that Smti. Kalpana Sarkar had seen the appellant throwing acid upon the victim in front of her house.
[12] Learned counsel for the appellant has further contended that from the cross-examination of PW-2, it appears that PW-2 did not make any statement to the police that she was standing in front her gate and saw that the accused had thrown acid upon the victim. Therefore, such statement was an afterthought and as such, it cannot be believed beyond reasonable doubt.
[13] He has pointed out that there is Rubber Processing Unit in the house of the appellant and the acid is required to make rubber sheet from latex. So to prove the third ingredient of the offence under Section-326A of IPC that the accused did it intentionally or with knowledge that the act would likely cause such injury or hurt, the fact of procurement or getting the acid in possession of the appellant for the fulfillment of the intention or knowledge as stated above, is to be proved beyond reasonable doubt.
[14] It is a fact that the acid was present in possession of the appellant from much earlier period as the appellant has a rubber processing unit at home, therefore, this ingredient is not proved beyond reasonable doubt. So far the Page 5 of 11 knowledge of acid on the victim with intention and knowledge is concerned, there is a suggestion put to PW-2 that there is a scuffle between the appellant and the victim and the victim received such acid burn injuries accidently spilling of acid kept in a bowl.
[15] He has further stated that one plastic drum and one steel made bowl Exbt.3 as a whole, wherein Exbt.A is the plastic drum and Exbt. B is the steel bowl. There is no link between the burn injury in the body of victim and the plastic drum and steel bowl seized by the police from the house of the accused. Since there was no eye witness of the incident therefore, whether the bowl which was seized was the same bowl which contained the liquid, cannot be said beyond reasonable doubt that the bowl which has been seized and indentified later on was in fact at all used to throw liquid upon the victim.
[16] The prosecution has not been able to prove that there was acid in the Exbt. B which has been allegedly used to throw liquid upon the victim this is as per statement of PW-6 in his examination in chief and therefore, it cannot be said beyond reasonable doubt that the appellant had thrown the liquid/acid and has caused burn injury in the person of the victim. But, the trial Court did not consider this fact and convicted and sentenced the accused-appellant wrongly and illegally.
[17] He has further contended that the victim was passing through the front of the house of the accused with her child as such, if acid was thrown on the body of the victim, some acid would have certainly fallen on the person of her child also, but there is no such evidence. Moreover, it is not normal course of event that if the accused-appellant would be throwing some liquid on the victim then, she would not have notice her and be alert. There is no evidence anywhere that the accused hiding and as and when victim came before her house she threw it. Therefore, the story of throwing acid upon the victim by the appellant has not been proved beyond shadow of reasonable doubt and as such, the trial Court ought to have acquitted the appellant.
[18] The learned trial Court observed in the judgment that the injury was caused by acid and most probably homicidal in nature. The doctor i.e. PW-Page 6 of 11
9 was not sure that the injury was homicidal. Moreover, the learned trial Court felt in error in holding that the prosecution has proved the appellant guilty under Section-326A of the IPC and in cross-examination PW-9 also stated that he cannot say whether there is any injury present or not.
[19] He further advanced his submission on the evidence of PW-2 regarding the time of the incident. In the evidence of PW-2 it reveals that the incident took place around 12/12.30 hours and the ejahar was lodged by her and the ejahar has been written according to her version. The scribe of the ejahar was Brajakishore Sharma. According to the statement of PW-7 the ejahar was lodged around 12/12.30 hours. The printed FIR form also shows that the incident took place at 12.45 hours and the information was received at P.S. at 18.36 hours. However, the final report states that the incident took place at 13.00hours. Therefore, there is contradiction regarding the time when the incident took place and when the FIR was lodged. If at 12/12.30 the incident took place then, by no means the ejahar could have been lodged at around 12/12.30 hours.
[20] In view of above submission as advanced by the learned counsel appearing for the appellant, in order to bring home a charge punishable under Section-326A of IPC, the prosecution has to be prove certain legal points viz.
(i) whether the accused caused permanent or partial damage or deformity to any part or parts of the body of the victim (ii) whether the accused did it by throwing acid on the victim and (iii) whether the accused did it intentionally or with knowledge that his/her acts would likely to cause such injury or hurt.
[21] He argued that beyond reasonable doubt and the legal points stated supra, the case against accused is not proved and the judgment is liable to be set aside and accused to be acquitted. The learned Addl. P.P. contended that the case is proved beyond reasonable doubt and motive, circumstantial evidence, statement of PWs.1, 2 and 5 and medical evidence and record is in favour of prosecution and prayed to dismiss the appeal confirms the judgment.
[22] Now, in view of the arguments advanced by both sides, with a view to find out as to whether any permanent or partial damage or deformity to Page 7 of 11 any parts or part of the body of the victim was caused or any grievous hurt was cause to the victim, we find it appropriate to have a reference to the evidence of Dr. Shyam Sundar Saha (PW-9), who on 25.07.2016 was posted as medical officer in Unit No.1 of Surgical Ward at AGMC and GBP hospital, Agartala. On examination, PW-9 has found burn injuries on the fact, chest, abdomen, both upper arms and eyes. According to PW-9 total burn area was 32 percent. He has further opined that nature of injuries were grievous and fresh in nature and was caused by acid (corrosive substance) and most probably homicidal in nature and his report was exhibited as Exbt.6.
[23] During cross-examination no material came out by which the evidence of PW-9 could be shaken. There is not even a denial of the statements made by the PW-9 which may caste any doubt on the evidence of PW-9. A simple question was asked to PW-9 during his cross-examination whether there were any old burn injuries. The answer came up in negative. Therefore, on the evidence of PW-9 we can safely hold that grievous injury was caused to the victim by acid.
[24] Now, question to be determined is as to whether the accused had caused such injury to the victim. As stated earlier that the informant Kalpana Sarkar, PW-2 was standing in front of the gate of their house while the victim was going back to her house and on the way, the accused threw acid upon the victim causing injuries. Immediately, PW-2 rushed to the spot and poured water on the victim. She also stated to have arranged shifting of victim to Taltala PHC wherefrom the victim was referred to GBP Hospital.
[25] PW-2 further added that she had knowledge that on the day of incident there was a quarrel in between the victim and the appellant on the issue of another quarrel between their children. The victim supporting the evidence of informant (PW-2) has deposed, inter alia, that on that day she was returning to our house along with her child from the house of informant and as soon as she reached in front of the house of accused-appellant, she threw some liquid substance upon her resulting which she received burn injuries and cried out and also thereby lost her sense. Immediately PW-2 and other people came Page 8 of 11 there and poured water upon her. Thereafter, she was taken to Taltala PHC and as referred therefrom to GBP hospital for better treatment where she was undergone treatment for 7 days.
[26] The victim further stated that she received severe burn injuries on her person. According to the victim, the appellant threw such liquid upon her by bowl. She further stressed on the point that on the day of incident in the morning there was a quarrel in between her child and the child of accused at Anganwadi Centre. PW-4 on the fateful day was in her house and on hearing hue and cry she rushed to the place of occurrence and found the victim was saying that the appellant threw acid upon her. Therefore, they poured water upon the victim and thereafter the informant and some other neighboring people also came to the place of occurrence and arranged shifting of victim to the hospital.
[27] PW-5, Sri Nandu Bardan also appears to be a direct witness to the prosecution case. On the alleged day and time PW-5 was proceeding in front of the house of the appellant on foot. All on a sudden PW-5 saw that the victim was shouting and thereby fell down on the ground and was rolling on the ground by saying that Prava Sarkar, the accused-appellant threw acid upon her. Subsequently, PW-5 and some other people rushed to the spot and poured water upon the victim and thereafter the victim was shifted to hospital. According to PW-5, the accused-appellant was also detained and was handed over to the police.
[28] What emerges on the basis of the evidence of PWs.1, 2, 4 and 5 is that the accused had thrown acid upon the victim and thereby grievous injuries were caused to the victim. The issue leading to the incident appears to be the quarrel in between the children of the victim and the accused. during cross-examination of the victim save and except simple denial as to throwing acid causing burn injuries a suggestion was given, inter alia, that as a result of quarrel in between their children the victim got self injury by acid keeping in a bowl in her hose. Simple denial not supported by any cogent reason cannot be a good ground to discard the evidence.
Page 9 of 11[29] That apart, the suggestion so put to PW-1, appears to be illogical and cannot be accepted being not supported by any evidence whatsoever. During cross-examination of PW-2 similar denial was given. A suggestion to the PW-2, however, was given in different way to that of the PW-1 stating, that the victim went to the house of accused and h ad scuffling and thereby received burn injuries by acid which was kept in bowl for the use of rubber processing unit admittedly was in existence in the house of accused. In our opinion, the cross-examination done to the PW-2 has no avail for the defence rather, it confirms existence of acid in the house of accused.
[30] It is apparent from the records that during examination of PW-8 (I.O) had seized one plastic drum containing acid vide seizure list dated 25.07.2016 (Exbt.2/2) and it was sent for chemical examination to the TSFSL wherein, PW-6, Sri Suman Kumar Chakraborty being the Dy. Director has examined the seized acid by extracting it suitably and also by analyzing through chemical test and thereby opined that the seized materials is forming acid which is corrosive substance and can cause effect in human being.
[31] The report so prepared by the PW-6 was also admitted into evidence without any objection and was marked as Exbt.3. The seizure and recovery of the plastic drum containing acid was also confirmed by PW-5 (Sri Nandu Bardhan). During cross-examination of PW-6, only a simple question was put as to requisition for detection of finger prints of the accused in the seized plastic drum as well as the bowl.
[32] As referred earlier that the accused has examined only one witness, namely, Kamal Sarkar in defence as DW-1, who in course of examination has stated that on the alleged day accused rushed to his house being chased by some local people. At that point of time PW-5 came there and told DW-1 that the appellant caused the death of one of their neighbors and therefore threatened the DW-1 not to give shelter to the accused. During cross- examination, DW-1 further confirmed that he knows both the accused and the informant being his neighbors and he was told by the local people that the accused caused the death of victim by throwing acid. The evidence of DW-1 Page 10 of 11 did not appear to have supported the defence rather, it confirms the case of the prosecution. In this view of the matter, existence of finger print of the accused in the seized materials stands redundant.
[33] On the basis of the evidences of PWs-1, 2, 4 and 5 coupled with the evidence of PW-6 and PW-9, it is crystal clear that accused Prava Sarkar had thrown acid upon the victim with the help of a bowl. We therefore, find and hold that the prosecution has proved the case against the accused beyond all reasonable doubt. As the learned trial Court convicted the appellant under Section-326A of IPC, it would be apposite to quote the extract of this section and thus:
"326A. voluntarily causing grievous hurt by use of acid, etc.-whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extended to imprisonment for life, and with fine.
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim Provided further that any fine imposed under this section shall be paid to the victim."
[34] In view of the statement made by the accused under Section-313 Cr. P.C. wherein, the accused-appellant has admitted the charge framed against her and has not denied completely. The circumstantial evidence and the version of the eye witness i.e. PW-2 who has immediately put off the burn by pouring water on the victim established the prosecution story completely. Grievous injuries as per medical evidence of the doctor, PW-9 and the medical report, Exbt.6 indicated the severe burns on the fact, chest and abdomen, caused due to acid attack.
[35] In our ultimate analysis and having regard to the evidences on record, it is crystal clear that there is no doubt that the question of sentence is a matter of discretion and such discretion has to be exercised Page 11 of 11 along with accepted judicial lines. To impose adequate punishment according to law is not only the duty of the Court, but it is social obligation clearly enjoined upon it keeping in mind not only the crime but also the criminal. In the case in hand, the convict proved to have committed the offence punishable under Section-326A of IPC and as such her plea of innocence cannot have any significance. There is also nothing in the record to suggest any previous crime and also there is nothing that the accused-appellant will be a danger to the society.
[36] As such, we do not find any infirmity in the findings arrived at by the learned Addl. Sessions Judge while convicting and sentencing the accused-appellant. Accordingly, the judgment and order of conviction and sentence as declared by learned Addl. Sessions Judge is affirmed and upheld. Consequently, the present appeal preferred by the convict- appellant shall stand dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs forthwith.
JUDGE JUDGE A.Ghosh