Tripura High Court
Sri Bijoy Chakma vs The State Of Tripura on 11 June, 2018
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) No.11 of 2015
Sri Bijoy Chakma,
son of Sri Kamal Kitya Chakma @
Santi Chakma, resident of
Kanchanchera (Chandra Mohan Baidya
Para), Rabindranagar, P.S.
Kanchanpur, District - North Tripura
..... Appellant(s)
-Versus-
The State of Tripura
.... Respondent(s)
For Appellant(s) : Mr. R. Datta, Advocate
Mr. A. Acharjee, Advocate
For Respondent(s) : Mr. B. Chowdhury, PP
HON‟BLE THE CHIEF JUSTICE MR. AJAY RASTOGI HON‟BLE MR. JUSTICE S. TALAPATRA Reserved on : 25.04.2018 Pronounced on : 11.06.2018 Whether fit for reporting : Yes No √ JUDGMENT AND ORDER BY THE COURT (Per Hon'ble Mr. Justice S. Talapatra) By means of this appeal under Section 374 (2) of the Cr.P.C., the legality of the judgment dated 27.05.2014 delivered in S.T 04 (NT/D)/2013 by the Additional Sessions Judge, North Tripura, Dharmanagar, as he then was, has been questioned. By the said judgment, the appellant has been convicted for committing offence punishable under Sections 304, Part-II of Page 2 of 14 the IPC and sentenced to suffer 7(Seven) years' rigorous imprisonment and to pay a fine of `5,000/- [Rupees Five thousand] with default imprisonment.
[2] The genesis of the prosecution case can be located in the oral ejahar filed by one Banalata Chakma [PW-1] disclosing that on 02.05.2012 at around 2200 hours in the evening, the appellant raided their house and attacked her son Mritunjoy Chakma. The appellant had dealt with several blows and her son fell down on the ground. Mritunjoy started bleeding through mouth and nostril. On the following day, 03.05.2012 her son was taken to Kanchanpur Hospital and from there, her son was referred to Kailashahar Hospital. On the way to the Kailashahar Hospital, her son died at a place under Pecharthal police station. They brought back the body to Kanchanpur Hospital. It has been also disclosed in the said ejahar [Exbt.6] that her son was rickshaw puller by profession and there was a dispute in respect of rickshaw-fare with the appellant. Since PW-1 was busy with treatment of her son there had been delay in lodging the information to the police station. Based on the said ejahar, Kanchanpur P.S. case No.32 of 2012 was registered under Sections 448/302 of the IPC and was taken up for investigation. On completion of investigation, the final police report [under Section 173(2) of the Cr.P.C.] was filed chargesheeting the appellant. Since the offence is exclusively triable by the court of Sessions, the police papers were committed to the court of the Page 3 of 14 Addl. Sessions Judge, North Tripura, Dharmanagar, as he then was. Having taken the cognizance, the charge was framed under Section 302 of the IPC, to which the appellant pleaded not guilty and claimed to be tried in accordance with law. [3] In order to substantiate the said charge, the prosecution adduced as many as 13[thirteen] witnesses including the informant. Moreover, they had introduced 9 documentary evidence viz. the inquest report [Exbt.3], the postmortem examination report [Exbt.5] and the site map [Exbt.9]. After recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. when he repeated his plea of innocence by stating that the incriminating materials as surfaced in the evidence are all false. [4] Having appreciated the evidence on record, the trial court returned the finding of conviction as challenged in this appeal. For returning the finding of the conviction, the trial court had occasion to observe that on the previous night of hospitalization, the victim was assaulted by the appellant and the victim was totally left uncared as there was none in the family except PW-1. In the following morning, he was transported to Kanchanpur hospital and later on, he was referred to the Kailashahar hospital but he expired before he could be taken to the said hospital. The death of the victim has resulted from the hurt caused by the appellant. The trial court has observed in the context as under:
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„....the prosecution fails to prove the mens rea of the offence. There is no iota of evidence that the accused intended to kill the deceased though there are some evidence showing that the accused begged for water to some witnesses saying that he would kill the victim by forceful administering of water, but actually he did not administer any water rather it appears that he splashed water on the face of the deceased either when the deceased was unconscious or about to become unconscious. The expression of the accused to the witnesses that he would kill the victim might be an expression of anger. In absence of mens rea for committing a murder it cannot be said that the accused intended that the deceased should die receiving assault from him. So this is a case of culpable homicide not amounting to murder since death of the deceased took place due to assault made by the accused as a consequence of such assault.‟ Such observation has provided the foundation of the finding of conviction.
[5] Mr. R. Dutta, learned counsel appearing for the appellant has submitted that on appreciation of the evidence, it would be apparent that there is no legal evidence to hold the appellant guilty of culpable homicide. Even PW-1 is not an eye witness but PW-2, Laxmi Rani Chakma is the only eye witness, but on her statement no reliance can be placed inasmuch as she had stated that in the light of a lamp [kupi] she had identified the appellant but Mr. Datta, learned counsel has succinctly submitted that the said lamp was not seized during the investigation. According to Mr. Datta, learned counsel, the other witnesses from the neighbourhood have stated what they had heard either from PW-2 or from PW-1. Mr. Datta, learned counsel however has fairly submitted that PW-5 has appeared in the place of occurrence with immediate proximity of the occurrence and he has stated in the trial as follows:
"The occurrence took place at 9/10 pm. At that time I was going to my house from my shop and found there was hue and cry in a hut near the road side. I went there and found victim Mritunjoy Chakma was lying there in Page 5 of 14 almost unconscious condition with bleeding injuries on his person and also found that Agalakh Chakma was coming with water from a nearby house and then he splashed water on the face of Mritunjoy and also inflicted kicks on his person. Then I separated him from the victim and thereafter informed the parents of the accused that he had assaulted Mrityunjoy Chakma and so they should go and take him to hospital. Then my mother Laxmi Rani Chakma informed the local Headman and other people. Next morning police came and the victim was taken to hospital by police. Later on the victim died on the way to Kailashahar Hospital for treatment. The good name of Agalakh Chakma is Bijoy Chakma.
[6] Mr. Datta, learned counsel has questioned the proportionality of sentence and he has relied on a decision of the apex court in Gurmukh Singh vs. State of Harayana, reported in 2010 Cri.L.J 450. According to Mr. Datta, learned counsel, while awarding the sentence the mitigating and aggravating circumstances were not properly appreciated. To bolster this argument, he has referred the following passage from Gurmukh Singh (supra):
"24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury.
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre-
mediation in a sudden fight;
h) the nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted.
i) The criminal background and adverse history of the accused;
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j) Whether the inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behavior of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into considerations while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."
[7] Appearing for the State, Mr. B. Choudhury, learned P.P. has strongly refuted the submissions made by learned counsel appearing for the appellant and stated that there is no infirmity in appreciation of the evidence or awarding the sentence. He has stated that there can be no earthly reason to disbelieve PWs-2 & 5. That apart, PWs-3,4 & 6 by way of their deposition have given placed evidentiary inputs which support the narrative of PW-2. Thus, no interference in the impugned judgment is called for.
[8] It would be apposite to evaluate the evidence meaningfully.
PW-1, Smt. Banalata Chakma [the informant and mother of the deceased] was away from her house when the occurrence took place on the fateful night. She came to know Page 7 of 14 about the occurrence from PW-2. PW-1 is also witness to the inquest procedure and the seizure of the wearing apparels of the victim [Exbt. M.O.1]. In the cross-examination, nothing could be elicited which would dent the prosecution's case. [9] PW-2, Laxmi Rani Chakma has deposed in the trial thus:
"The incident occurred at about 1 year ago at night at about 10 pm. At that time I was in my house and Mritunjoy was in his room closed nearby. At the time of incident Mritunjoy Chakma came to his house after driving rickshaw. At that time Agalakh Chakma came with Dharmendra Chakma and suddenly Agalakh Chakma entered the room of Mritunjoy and began to assault him mercilessly by fist and blows and kick. Dharmendra tried to save Mritunjoy but failed. Agalakh inflicted flying kicks on the victim. I being an old woman was unable to do anything. The accused was telling that he would kill the victim. At the time of incident there was Kupi Lamp in the house of the victim. After the arrival of Pritimoy Chakma the accused fled away. After the occurrence the parents of the accused came but they did nothing to help the victim. Thereafter I went to Kanchancherra and informed the Headman Dhana Chakma. The mother of Mritunjoy went to her daughter‟s house at Andercherra and I informed her on mobile. The accused inflicted many blows on the victim. In the morning police came and they shifted the victim to the hospital. Accused Agalakh is present in the dock and indentified. On the next day night Mritunjoy died. Darogababu prepared inquest over the dead body of the deceased and I put my thumb impression in the inquest report."
While she was confronted in the cross-examination, no statement was found to have been recorded by the police officer to the effect that PW-2 had stated anything about identification by lamp. Even her statement made to the police officer in regard to her knowledge of the occurrence is found to be substantially different from what she has stated in the trial. Even that part was confirmed by the investigating officer [PW- 13].
Page 8 of 14[10] PW-3, Sri Dhananjoy Chakma is the younger brother of the deceased and he has testified that they were informed over phone about the assault by the appellant. On the next morning, they visited Kanchanpur hospital and found that the deceased was lying in an unconscious state. Even he was not in a position to drink water. As the appellant was a person from the neighbourhood, he was closely known to PW-3 and hence, he identified the appellant in the dock.
In the cross-examination nothing material has surfaced.
[11] PW-4, Smt. Chaya Roy has stated that the appellant asked for water from her and muttered audibly that he would kill the deceased by forcing to drink water. She heard the cry from the house of the deceased and on the next morning, she came to know that Mritunjoy, the deceased was assaulted by the appellant. But no source has been disclosed.
In the cross-examination, she has categorically stated that Mritunjoy was a good person and used to earn his livelihood by pulling the rickshaw. She denied the suggestion that the appellant did not ask for water from her. [12] PW-5, Sri Pritimoy Chakma appeared to be a vital witness for the prosecution's case. Since his testimony has been substantively reproduced before, it would be a useless exercise to revaluate his testimony.
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In the cross-examination, however, he has stated that the occurrence took place in the premises of Nakul Nath, where PW-1 and her sons used to reside. The other suggestions in conflict with the statements made in the examination-in-chief have been squarely denied by PW-5.
[13] PW-6, Smt. Renu Mahisya Das has also testified in the trial and stated that the appellant approached her for a glass of water and muttered in front of her that he would kill the deceased by forcing him to drink water. She gave him water and subsequently, she knew that Mritunjoy, the deceased was assaulted by the appellant.
In the cross-examination, she has more clearly stated that she did not go to the place of occurrence after hearing the hue and cry.
[14] PW-7, Sri Dharmendra Chakma did not support the prosecution's case and was declared hostile on the prayer of the Addl. P.P. who was conducting the case for the State. But the statement of PW-7 made under Section 161 of the Cr.P.C. has been admitted in the evidence [Exbt.2].
In the cross-examination, he bluntly denied that he did know the victim and the appellant.
[15] PW-8, Smt. Tulshibala Chakma is a hearsay witness and she did not state anything, materially important for determining the appeal.
Page 10 of 14[16] PW-9, Sri Amar Chakma is a hearsay witness and as such, incisive reference is not required to be made. [17] PW-10, Sri Kripesh Roy, a constable of Kanchanpur P.S. transported the dead body of Mritunjoy Chakma to the morgue as per the direction of Rupendra Debbarma [PW-13] and he identified the dead body to the medical officer who conducted the postmortem examination. He handed over the dead body to the relatives including PW-1. He is also the seizure witness of the wearing apparels of the deceased [Exbt.M.O.1]. The defence declined to cross-examine him. [18] PW-11, Dr. Sutap Bhattacharjee carried out the postmortem examination and prepared the postmortem examination report [Exbt.5]. While testifying he has stated that 'there was visible injury at parietal region of the scalp I mentioned that no injury was found. I mentioned it because in the column of scalp/head I specifically mentioned the injuries. I admit that I committed mistake by not mentioning the injuries against the column of external appearance. I found congestion inside the occipital and parietal region [left]. I found a soft tissue injury in the head which has caused some internal bleeding in the parietal region and occipital region. I opined that the death of the deceased was caused due to stoppage of the vital center of the brain. I could not give any opinion whether the death was homicidal, accidental and suicidal. On the basis of my report I can say that it was a case of homicidal or Page 11 of 14 accidental." PW-11 admitted that he did not provide any explanation for delay in preparing the report. No cross examination was carried out by the defence. [19] PW-12, is the scribe and a Sub-Inspector of Police. He has stated in the trial that he had written the ejahar [Exbt.6] as per the version of PW-1. He denied the suggestion that he did not read out the ejahar to PW-1.
[20] PW-13, Rupendra Debbarma investigated the case and he has given the details how he carried out the investigation by preparing the site map, causing seizure of the wearing apparels of the deceased, arranging the postmortem examination. After the postmortem examination report was available to him, he filed the charge sheet under Sections 448/302 of the IPC. He has confirmed the statement as recorded by him of Dharmendra Chakma [Exbt.2]. He produced all the relevant GD books for inspection of the court. He confirmed the statement of PW-2 as recorded by him. He has denied the suggestion that there is no complicity of the appellant in the commission of offence.
[21] From the postmortem report [Exbt.5] it clearly surfaces that the death of the deceased occurred due to the stoppage of vital center of the brain and for internal bleeding in the brain.
Page 12 of 14[22] At the threshold, we are of the view that there are adequate evidentiary materials to hold that the appellant had intention to assault the victim and his presence in the relevant time of occurrence has been well established, from the testimonies of PWs-2, 4, 5 & 6. PWs-5 & 6 heard the words of the appellant in the form of muttering that he would kill Mritunjoy. The observation of the trial court in this regard is a probable one that those words did not reflect any intention to kill but those were signs of anger of the appellant. But again, his motive to assault the victim cannot be discarded. PW-5 is the witness who has categorically stated that he found the appellant splashing water on the face of the deceased and he gave kicks on his person. PW-5 separated the appellant from the victim. Later on, he had informed the parents of the appellant. His mother Laxmi Rani Chakma [PW-2] informed the village headman. The next morning, the police came and had taken Mritunjoy to hospital. PW-4, Smt. Chaya Roy and PW-6 Smt. Renu Mahishya Das have corroborated the part of the transaction in respect of collection of water. In this context, the contradiction as recorded by the defence against the statement made by PW-2 in the examination-in-chief would stand lighted. Hence, the reliance can legally be placed on the testimony of PW-2. On cumulative reading of the evidence along with the opinion of the postmortem doctor, there cannot be any hesitation to hold that for the said assault by the appellant, Mritunjoy died but the appellant had no intention to kill Page 13 of 14 Mritunjoy. Therefore, the conviction as returned under Section 304, Part-II of the IPC cannot be faulted with. We affirm the said finding of conviction.
[23] So far the ground raised on proportionality of sentence is concerned, we have given an anxious consideration. It has become common place for the trial judges not to record the reasons for sentence. In absence of reasons to weigh the proportionality becomes an uphill task for the appellate court. Even though no sentencing policy has been adopted by our country, but over the period of time some inviolable principles have become the guiding light. In Gurmukh (supra) the apex court has relied on some important principles even though those are not exhaustive. From the records, it appears that there was some dispute relating to the rickshaw-fare, but the incident did not take place in a spur of moment. As stated, there was no intention to kill the victim and the victim died out of the injuries he received in the assault, not instantaneously but after a day. So far the gravity, dimension and the nature of injury are concerned, it appears that the external injuries are not grave but the internal injury as identified by the postmortem doctor has caused death of the victim. There is no finding on the health condition of the victim at least that has not been recorded in the postmortem examination report. Since no weapon has been used, it cannot be said that there was pre-mediation or the occurrence took place in a sudden outburst. The appellant does Page 14 of 14 not have any criminal antecedent but the conduct of the appellant after the occurrence cannot generate confidence in his human nature.
[24] Taking all these elements in consideration, this court is of the view that the sentence as awarded is required to be modified to a lesser one. Hence, the sentence the appellant shall suffer for committing the said offence, will be 5(five) years rigorous imprisonment with fine of Rs.1,000/-, in default, to suffer simple imprisonment for fortnight. It is to be noted that the detention, the appellant has suffered during investigation or trial shall be set off from the said term of imprisonment.
In the result, the appeal is partly allowed. Send down the LCRs.
JUDGE CHIEF JUSTICE Sujay