Tripura High Court
Sri Swadesh Chowdhury vs The State Of Tripura on 23 April, 2021
Equivalent citations: AIRONLINE 2021 TRI 248
Author: S. G. Chattopadhyay
Bench: S. G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P No.01/2020
SRI SWADESH CHOWDHURY
S/o Late Kartik Chowdhury, resident of
Tulabagan, P/O and P/S. Sidhai, District-West
Tripura.
............... Petitioner(s).
Versus
THE STATE OF TRIPURA
represented by the Ld. PP, High Court of Tripura,
Agartala
............... Respondent(s).
BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. S. Lodh, Advocate.
For Respondent(s) : Mr. S. Ghosh, Addl. Public Prosecutor.
Date of hearing : 19th March, 2021.
Date of Judgment & Order : 23rd April, 2021.
Whether fit for reporting : NO.
JUDGMENT AND ORDER
[1] This criminal revision petition is directed against the
judgment dated 19.11.2019 delivered by the Sessions Judge, West Tripura, Agartala in Criminal Appeal No.36 of 2016 affirming the judgment and order of conviction and sentence dated 16.03.2016 passed by the Judicial Magistrate, First Class (Court No.1), Agartala in case No. PRC 80/2013 whereby the petitioner was found guilty of offence punishable under Sections 341 and 325 IPC and he was convicted to SI for one month and fine of Rs.500/- under Section 341 IPC and S.I for one Crl. Rev. P No.01/2020.
Page - 2 of 16 year and fine of Rs.4,000/- with default stipulation for having committed offence punishable under Section 325 IPC.
[2] The genesis of the prosecution case is rooted in the FIR which was lodged by Smt. Chabi Das(PW-1), wife of Narayan Das of Sidhai at Sidhai police station on 28.01.2013 alleging, inter allia, that on 26.01.2013 at about 7 „O‟ clock in the night the petitioner had a hot altercation with her husband at Office Tilla Bazar. At the intervention of local people the petitioner left the place but when her husband arrived near the house of the petitioner for returning home, petitioner attacked him with a wooden stick (lathi) and gave a blow on his head. Having received bleeding injury, her husband collapsed on earth. Following his cry, the neighbouring people appeared and shifted her husband to Mohanpur hospital from where he was referred to AGMC and GBP Hospital at Agartala. She stated in her FIR that filing of the FIR was delayed because she was busy in arranging the treatment of her husband. [3] Based on her FIR, Sidhai PS case No.8 of 2013 under Sections 341 and 325, IPC was registered and the case was endorsed to S.I, Dhanesh Ch. Das(PW-8) for investigation.
[4] During his investigation of the case, the I.O had investigated the crime scene and he had drawn up a hand sketch map of the entire crime scene. The material locations at the crime scene was indicated by him by preparing a separate index (Exbt.5). He also collected the injury report (Exbt.2) of the victim from G.B.P. Hospital. The material witnesses Crl. Rev. P No.01/2020.
Page - 3 of 16 acquainted with the facts of the case were also examined by him and their statements were recorded under Section 161 Cr. P. C. Having thus completed the investigation of the case, the investigating officer submitted charge sheet No.48 of 2013 dated 31.07.2013 under Sections 341 and 325 IPC against accused Swadesh Chowdhury in the Court of the Chief Judicial magistrate at Agartala.
[5] The Chief Judicial Magistrate having perused the charge sheet and supporting police papers had taken cognizance of offence punishable under Sections 341 and 325 IPC against the accused vide his order dated 27.09.2013 and made over the case to the Judicial Magistrate of the First Class (Court No.1) where the case was tried. [6] The trial commenced with the framing of charges against the accused which reads as under:
"That on 26.01.2013 at about 2030 hours at Tulabagan PS Sidhai, West Tripura you wrongfully restrained the husband of the complainant namely Narayan Sukladas and that you thereby committed offence punishable u/s 341 of the Indian Penal Code and within the cognizance of this court.
Secondly that on or about 26.01.2013 at about 2030 hours at Tulabagan PS Sidhai, West Tripura you voluntarily caused grievous hurt to the husband of the complainant namely Narayan Sukladas and that you thereby committed offence punishable u/s 325 of the Indian Penal Code and within the cognizance of this court.
And I do hereby direct that you be tried on the said charges."
Crl. Rev. P No.01/2020.
Page - 4 of 16 Accused pleaded not guilty to the said charges and desired to stand the trial.
[7] In the course of trial, prosecution examined as many as eight PWs (PW-1 to PW-8) including the complainant wife of the victim (PW-1), Medical Officer (PW-6) and the Investigating Officer (PW-8). Apart from adducing the oral evidence of the prosecution witnesses, five documents were introduced on behalf the prosecution which were admitted into evidence and marked as Exbt.1 to Exbt.5/1.
[8] At the conclusion of prosecution evidence, accused was examined under Section 313 Cr. P.C. In reply, he pleaded innocence and claimed that the charges were foisted on him. He also declined to adduce any evidence on his defence.
[9] On appreciation of evidence, the trial Court returned the aforesaid findings holding the accused guilty of having committed offence punishable under Sections 341 and 325 IPC for which sentence aforesaid was imposed on him. Aggrieved thereby, the accused convict assailed the said judgment of the trial Court in appeal in the Court of Sessions Judge. The learned Sessions Judge by the impugned judgment affirmed the judgment of the trial court which has been challenged before this Court by means of filing this criminal revision petition. [10] Counsel appearing for the petitioner has taken this Court to the evidence recorded at the trial. Informant, Smti Chabi Das (PW-1) supported her FIR statement at the trial by saying that her husband and Crl. Rev. P No.01/2020.
Page - 5 of 16 accused Swadesh Choudhury had a hot altercation between them prior to the assault of her husband. The accused then attacked her husband with a lathi when her husband reached near the house of the accused while returning home. Consequently, her husband received bleeding injury in his head. It has been stated by the informant that at the time of occurrence she was in her house which is adjacent to the house of the petitioner. Following the cry of her husband she rushed to the spot and found her husband in critical condition from where he was first taken to Mohanpur hospital and then to G.B.P. Hospital at Agartala. About 2(two) days delay in lodging the FIR, she explained that her husband had to be shifted to Kolkata by air for better treatment and she was very busy in arranging the treatment of her husband which caused delay in lodging the FIR. She was cross examined on behalf of the accused. The accused try to project a defence case in the cross-examination of the PW by suggesting to the PW that her husband was abusing some women of the locality with filthy words in intoxicated condition at the time of occurrence. Though the PW admitted that her husband used to consume alcohol occasionally, but according to the PW, he was not drunk at the time of occurrence.
[11] PW-2, Tutan Das is a neighbour of both the victim and the accused. At the time of occurrence he was inside his home. Following the cry of the injured he appeared at the spot and saw the injured husband of PW-1 lying there with bleeding injury in his head. He also found accused Swadesh Choudhury at the spot. It was stated by the PW that from there Crl. Rev. P No.01/2020.
Page - 6 of 16 he along with others had taken the injured to Mohanpur hospital from where he was shifted to GBP hospital at Agartala.
In his cross-examination he admitted that the injured was his cousin brother. He also stated that he was not aware as to whether a hot altercation between the victim and his assailant preceded to the assault of the victim.
[12] PW-3, Kishore Sarkar did not also witness the occurrence taking place. He was informed by his neighbour Tutan Das over telephone that Narayan Das was assaulted by accused Swadesh Choudhury. Immediately, he arrived at the place of occurrence from where he had transported Narayan Das to Mohanpur hospital in his car and thereafter to G B P Hospital at Agartala. The PW came to know from Tutan Das that said Narayan Das was assaulted by accused Swadesh Choudhury. [13] PW-4, Smt. Dipali Debnath is also a neighbour of both the victim and the accused petitioner. She is no eye witness to the occurrence. She heard from others that accused Swadesh Choudhury assaulted Narayan Das following a hot altercation between them. At the instance of the prosecution lawyer, the witness was declared hostile and she was cross examined by the prosecution lawyer. Nothing could be extracted from her in favour of the prosecution through such cross examination by the Assistant Public Prosecutor. [14] PW-5, is the most significant witness of this case. His is victim Narayan Ch. Sukla Das who stated in his examination in chief that at the Crl. Rev. P No.01/2020.
Page - 7 of 16 time of occurrence at about 8.30 p.m on 26.01.2013 he was returning home from Tulabagan Bazar. As soon as he reached in front of the house of the petitioner, the petitioner hit the PW on his head with a lathi. As a result of which he collapsed on earth and lost consciousness. He further stated that following his cry, people from the neighbourhood appeared there. Seeing them accused petitioner fled with the lathi. His wife Chabi and his neighbours Manik Pal and Tutan Das had taken him to Mohanpur PHC from where he was taken to GBP Hospital. He was in GBP hospital for four days from there where he was taken to Peerless Hospital in Kolkata by flight. It has been stated that his condition was so critical that he was carried in a stretcher in the flight and a doctor had to accompany him. According to the PW he had a hot altercation with the accused prior to the occurrence and out of rage the accused caught him on his way back home and assaulted him.
The PW was put to incisive cross examination on behalf of the accused. In his cross examination he stated that prior to the occurrence he had a good relationship with the accused. He also stated that after being hit by the accused, he lost his consciousness and regained his consciousness only at Mohanpur hospital. While he was in G.B.P Hospital, he was fully conscious but his condition was unstable. Many suggestions were put to the witness on behalf of the accused. It was suggested to him that he had taken a loan from the accused but he did not pay back Rs.1,47,000/- of the said loan to the accused. The suggestion was denied by the PW. It was also suggested that to get rid of repayment of such loan he had implicated the accused in a false case which was also denied Crl. Rev. P No.01/2020.
Page - 8 of 16 by him. It was also suggested to the PW that the accused did not assault him which also was denied by the PW.
[15] PW-6, Dr. Abhijit Dey, is a Medical Officer who examined the injured (PW-5) in GB Hospital at Agartala on 27.01.2013 when the injured was brought to the hospital and found a stitched wound measuring 4 cm in length over left eyebrow of the injured which was simple in nature and caused by hard and blunt object. It was stated by the PW that brain of the injured was also scanned which showed that there was „acute haemorrhagic contusion and surrounding edema in right temporal parietal region.‟ The PW identified his report which was taken into evidence and marked as Exbt.2. In his cross examination he stated that such injury might have occurred otherwise than by physical assault. [16] PW-7, Kanu Das was a resident of the same neighbourhood with the accused and the victim. He heard about the occurrence from others. According to the PW he heard that Narayan Das was assaulted by accused Swadesh Choudhury. In his cross examination he denied the suggestion of the accused that there was no hot altercation between the accused and injured Narayan Das prior to the occurrence. [17] PW-8 is the Investigating Officer who stated that the materials collected by him during investigation supported the charges against the accused. As a result, he submitted charge sheet against the accused for having committed offence punishable under Sections 341 and 325 IPC.
Crl. Rev. P No.01/2020.
Page - 9 of 16 [18] The trial Court found the accused guilty and held as under:
"****To sum up the evidence of the PWs that the incident of assault occurred on 26/01/13 at about 8-8.30 pm in front of the house of the accused on the road and the Pw5 was assaulted by the accused and as per the Pw6, Pw5 was injured due to the assault by blunt object and the injury was fresh grievous and the PW5 was treated at the GB hospital from 26/01/13 to 30/01/13 and thereafter the Pw5 was treated at the Peerless hospital for 15 days on being referred by the GB hospital and the medical injury report (Exbt.2 revealed so).
It is proved that the accused person wrongfully restrained the PW5 on his way in front of the house of the accused while the PW5 was returning from Tulabagan market and the accused assaulted the PW5 by lathi on his head for which he sustained grievous injuries on his head and bodily suffered in total 20 days and was treated at the GB hospital for 05 days and for 15 days at Kolkata and while the PW5 was returning home, on the way on a road in front of the house of the accused and the accused assaulted the PW5. The medical officer (PW-6) clearly states that there was injury and the injury was fresh and grievous in nature (NCCT of brain revealed acute hemorrhagic contusion and surrounding edema in right temporal parietal region). In the instant case, grievous injuries are found in the head of the victim (PW5) and the injuries were inflicted with a blunt object and the PW5 stated that he was assaulted by lathi.
The accused caused hurt and the hurt caused was grievous and the accused intended or knew that he was likely to cause grievous hurt and this incident occurred following the hot altercation prior the incident.****"
[19] In appeal, learned Sessions Judge found no reason to disbelieve the evidence of the prosecution witnesses particularly that of the victim and his wife. Having pointed out also to the inconsistent defence story, the appellate court affirmed the judgment of the learned trial court upholding the conviction and sentence of the accused. Crl. Rev. P No.01/2020.
Page - 10 of 16 [20] Counsel appearing for the petitioner has emphasised on the following grounds in the course of hearing:
(i) The Courts below did not take into consideration the discrepancies appearing in prosecution evidence on material points.
(ii) Courts below did not also consider the fact that the basic ingredients of Section 341 and 325 IPC were not satisfied in the case.
(iii) The delay in lodging the FIR was not explained which made the prosecution case doubtful.
(iv) Except the victim, no other witness saw the occurrence.
The Courts below decided the case on the basis of hearsay evidence which is grossly erroneous and on such ground the judgments are liable to be set aside.
(v) The place of occurrence which has been shown in the hand sketch map drawn by the I.O is not the same place where the incident took place according to the victim (PW-5). This material fact was not considered by the Courts below. It has been finally argued by learned counsel of the petitioner that evidently there was a hot altercation between the accused and the victim prior to the occurrence which supports the case of the petitioner that he has been implicated in a false case by the victim out of vengeance.
Crl. Rev. P No.01/2020.
Page - 11 of 16 [21] Learned Additional Public Prosecutor appearing for the respondent on the other hand contends that the findings of the Courts below are based on cogent and sound evidence and the petitioner has failed to make out any ground on which this Court can interfere with the concurrent findings of the Courts below. According to learned Additional Public Prosecutor, it has been established at the trial that the petitioner clandestinely attacked the victim (PW-5) causing serious bodily injury to him for which the victim had to undergo prolonged treatment in various hospitals in the State and outside the State which not only caused huge financial loss to him, it also caused innumerable pain and sufferings to the victim for no fault of him. Learned counsel therefore, urges the Court to dismiss the petition.
[22] It may be recalled that the petitioner has been convicted and sentenced under Sections 341 and 325 IPC. Section 325 IPC reads as under:
"325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
[23] A plain reading of Section 325 IPC would show that the following basic ingredients have to be satisfied to constitute an offence punishable under Section 325 IPC:
Crl. Rev. P No.01/2020.
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(i) It has to be proved that accused caused grievous hurt to the victim and
(ii) Such hurt was caused voluntarily, except in the case provided for by Section 335 IPC.
[24] The Medical evidence of PW-6 demonstrates that on 27.01.2013 victim was examined by him in AGMC and GBP Hospital at Agartala at the casualty block of the hospital. The said Medical Officer (PW-6) ascertained from the victim that he was physically assaulted on the previous day. On his examination the Medical Officer found a stitched wound on his left eyebrow which was 4 cm in length and such injury was simple in nature which according to the PW was caused by hard, blunt object. The injury report (Exbt.2) prepared by the doctor (PW-6) also demonstrate that brain of the injured was scanned which showed the following injury in his brain:
"acute haemorrhagic contusion and surrounding edema in right temporal parietal region".
In his testimony, the doctor (PW-6) stated that the brain injury was grievous in nature which might have caused the death of the injured. It was also stated by the witness that the injured who was admitted in the hospital was later referred to SSKM hospital in Kolkata on 30.01.2013 for better management.
[25] Grievous hurt is defined in Section 320 IPC which reads as under:
"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
Crl. Rev. P No.01/2020.
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(First) -- Emasculation.
(Secondly) -- Permanent privation of the sight of
either eye.
(Thirdly) -- Permanent privation of the hearing of
either ear,
(Fourthly) -- Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of
the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or
face.
(Seventhly) -- Fracture or dislocation of a bone or tooth.
(Eighthly) -- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
[26] From the medical evidence it has been made abundantly clear that the injury caused to the victim endangered his life for which he was medically advised and referred to a hospital outside the State for better management of the trauma suffered by him. The victim (PW-5) categorically stated that the accused petitioner hit him with a hard wooden object on his head and caused his injury. His evidence could not be impeached by the petitioner in cross examination. In these circumstances there is no reason to doubt the prosecution evidence that the hurt caused to the victim (PW-5) endangered his life. Evidence also supports the fact that for treatment the injured (PW-5) was in various hospitals for more than 20 days and during those days he was unable to pursue normal life. Therefore, such hurt falls within the purview of the Eighthly clause of Section 320 IPC and make the same a grievous hurt within the meaning of Section 320 IPC.
Crl. Rev. P No.01/2020.
Page - 14 of 16 [27] All the witnesses have stated in chorus that prior to the occurrence, the accused petitioner and the victim had a hot altercation between them and immediately thereafter the accused attacked the victim in front of his house while he was returning home from market. There is no doubt that such altercation must have acted as a sudden provocation, but there is no evidence to suggest that it was a grave provocation to attract the exception provided under Section 335 IPC. Rather in the cross examination of the witnesses, the accused tried to demolish the evidence that a hot altercation between the accused and the victim preceded the occurrence.
[28] The evidence recorded at the trial would clearly show that the accused with a clear intention of causing grievous hurt to the victim and with a clear idea of the consequence of his act, attacked the victim with a hard wooden stick and gave a violent blow on his head which resulted in grievous injury in his head for which the victim had to undergo treatment in various hospitals within the State and outside the State over a long period of time. Both the Courts below have examined the evidence in detail and after consideration of the relevant provision of law and the arguments placed by learned counsel of the parties arrived at a logical conclusion with regard to the guilt of the accused and convicted him for having committed offence punishable under Sections 341 and 325 IPC for voluntarily causing grievous hurt to the victim (PW-5) after wrongfully restraining him. In these circumstances there is reason to interfere with the conviction of the petitioner.
Crl. Rev. P No.01/2020.
Page - 15 of 16 [29] As regards sentence, trial Court viewed that the manner in which the accused committed the offence would not justify his release on Probation of Offenders Act. It was also viewed by the learned trial Court that the accused was a matured man capable of realising the consequence of his act and his release without adequate sentence would send a wrong signal to the society. On such consideration, the trial Court declined his release on Probation of Offenders Act and awarded the aforesaid sentence to him. The learned Sessions Judge after detailed examination and re-evaluation of entire evidence accepted the findings of the trial Court and affirmed the judgment of the trial Court. [30] The record would show that the petitioner was 50 years old at the time of occurrence and quite mature in understanding whereas the victim being 39 years old was much younger than the petitioner. The facts of the case revealed that after an altercation took place between them, the petitioner returned home and armed himself with a hard wooden stick and started waiting for the victim. As soon as the victim appeared in front of his house on his way back home, he had given mighty blow on his head and in consequence of his act, the victim received grievous hurt in his head. It is true that there is no past criminal record of the accused. But considering the age of the victim and the manner in which he committed the offence to his neighbour, the trial Court was absolutely right in denying the benefit of the Probation of Offenders Act to the accused. As stated, he has been sentenced to RI for one year for having committed offence punishable under Section 325 and Crl. Rev. P No.01/2020.
Page - 16 of 16 fine of Rs.4000/- with default stipulation and he has been sentenced to S.I for one month and fine of Rs.500/- with default stipulation for offence punishable under Section 341 IPC.
This Court is of the view that the said sentence is justified and there is no reason to interfere with the sentence awarded to the petitioner.
[31] Resultantly, the petition stands dismissed. Convict petitioner is directed to surrender at the trial Court within 02 months to suffer the sentence failing which the trial Court shall take required steps in accordance with law to make him suffer the sentence.
Pending application(s), if any, shall also stand disposed of. Send down the LCR immediately.
JUDGE Dipankar Crl. Rev. P No.01/2020.