Gauhati High Court
Sirish Chandra Paul vs State Of Tripura on 6 January, 1997
Equivalent citations: 1997CRILJ2617
JUDGMENT N.G. Das, J.
1. This appeal is directed against the judgment dated 9th January, 1992 passed by learned Additional Sessions Judge, Belonia in Sessions Trial No. 19(S.T/B) of 1989 whereby the learned Addl. Sessions Judge convicted the accused-appellant for commission of the offence Under Section 307 of IPC and sentenced him to undergo imprisonment for six (6) years and also to pay a fine of Rs. 2000/- in default of which he is to suffer R.I. for a further period of two months.
2. I have heard Mr. M.L. Roy, the learned counsel appearing on behalf of the appellant and Mr. S. Das, the learned Public Prosecutor, appearing on behalf of the State of Tripura.
3. The facts of the case in brief are that on 19-1-86 A.D. at about 9.00/9.30 a.m. Slidhangshu Bhattacharjee (P.W. 8) along with Mukupda Paul (P.W.1) and Rajmohan Shil (P.W. 2) were proceeding towards Bathkhola bazar and as they went near the house of Bhabatosh Biswas (P.W. 7), the accused-appellant suddenly appeared be-fore Sudhagshu Bhattacharjee (P.W.8) with a dao in his hand and struck successive blows by means of that dao on the person of Sudhangshu Bhattacharjee causing grievous injuries on his person. As a result of these violent beating Sudhangshu Bhattacharjee raised cries and fell on the ground unconscious. Rajmohan and Mukunda also raised cries for help. On hearing their cries Badal Majumder (P.W. 9) rushed to the scene of occurrence. But by that time the accused-appellant fled away. However, on query Badal Majumder came to know from Rajmohan and Mukunda that it was accused-appellant whocaused the injuries on the person of Sudhangshu Bhattacharjce by striking blows with dao. A few persons also came there after the arrival of Badal Majumder and then all of them took Sudhangshu Bhattacharjee to the Belonia hospital for his treatment.
4. After Sudhangshu Bhattacharjce was taken to Belonia hospital Smti Dlialai Saha, G.D.A. of Belonia Govt. hospital informed Sub-Inspector Moloy Bhattacharjee Incharge O/C of the P.S. over phone that one Sudhangshu Bhattacharjee who was severely injured was take to hospital and that his condition was serious. On getting this information Sub-Inspector Shri Bhattacharjee entered the gist of the information in the G.D. book of Thana and thereafter went to Belonia Hospital along with staff.
5. After the arrival of Sub-Inspector Shri Bhattacharjee in Belonia Hospital, Badal Majumder (P.W. 9) lodged the F.I.R. with him narrating the above facts. Accordingly, Sub-Inspector Shri Moloy Bhattacharjee recorded the F.I.R. and sent it to Belonia P.S. for registering a case. A case was accordingly registered being Belonia P.S. Case No. 10(1)/86 Under Section 326/307 of IPC The O/C, J. Chakraborty of Belonia P.S. endorsed the case to Sub-Inspector Shri Moloy Bhattacharjee for investigation of the case. Accordingly, Sub-Inspector Shri Bhattacharjee completed the investigation of the case and submitted the charge-sheet through the O/C for prosecution of the accused-appellant for commission of the offence Under Section 326/307 of l.P.C.
6. But thereafter Investigating Officer Shri Bhattarcharjee died.
7. However, the case being exclusively triable by the Court of Session it came to the Court of learned Addl. Sessions Judge who after going through the materials on records framed a charge Under Section 307 of IPC against the accused-appellant for causing grievous hurt on the person of Sudhangshu Bhaltarcharjce by means of sharp cutting weapon viz. 'dao' with the intention to cause his death. The charge was read over and explained in Bengali to the accused-appellant who pleaded not guilty and claimed to be tried.
8. In order to bring home the charge the prosecution examined 11 witnesses in all and also took the aid of documentary evidence, namely, F.I.R. seizure list etc. The accused led no evidence in support of his defence. However, his defence as would appear from the cross-examination as well as the statement he gave at the time of examination Under Section 313 of CrPC is that he has been falsely implicated in this case. It was pleaded by the accused-appellant that he was innocent.
9. Learned Addl. Sessions Judge, however, after appreciation of the evidence on record arrived at the conclusion that the prosecution succeeded in bring home the charge Under Section 307 of the l.P.C. against the accused-appellant and accordingly awarded the punishment as mentioned above.
10. Mr. M.L. Roy, the learned counsel appearing on behalf of the appellant has at the very outset submitted that no reliance can be placed on the F.I.R. of this case as a perusal of the evidence on record will make it clear that it was an after throught document. It is, therefore, necessary to examine the evidence on record.
11. The informant, who lodged the F.I.R. has been examined as P.W. 9 in this case. He has proved the signature on the F.I.R. and stated that this F.I.R. was recorded as per his dictation and that it was read over to him before putting the signature. According to him he lodged the F.I.R. with the Sub-Inspector of Police in the Belonia hospital. The G.D. entry marked as Ext. P/5 shows that Sub-Inspector Moloy Bhattarcharjee after getting the information over phone from Smti Dhalai Saha, G.D.A. went to Belonia hospital and after going over there he recorded the ejhar. The ejhar which has been exhibited in this case shows that ejahar was recorded at 18.05 hours. P.W. 9 deposed that on hearing the cries he rushed to the scene of occurrence and found the injured Sudhangshu Bhattarcharjee (P.W. 8) lying on the ground with marks of bleeding injuries on his person. According to his ejahar he rushed to the scene of occurrence at about 9.00/9.30 a.m. It is also evident from the evidence of P.W. I Mukunda Paul, P.W. 2 Rajmohan Shil, P.W. 3 Santosh Chandra Bal that P.W. 8 Sudhangshu Bhattarcharjee was immediately taken to the Belonia hospital. Therefore, it is clear from their evidence that the informant Badal Majumder and others took Sudhangshu Bhattarcharjee to hospital immediately after the occurrence and they had been there until the arrival of Sub-Inspector Moloy Bhattacharjee. It is, therefore, clear from their evidence that this ejahar was lodged without any practicable loss of time.
12. It must be further mentioned that it is but natural that P.Ws. 1, 2 and others who came to the spot would first take steps to take the injured to the hospital then to run to the police station to lodge the F.I.R. In view of the timings given above I am of the view that there was no unusual delay in lodging the F.I.R. in the instant case. Cross-examination of P.W. 9 does not indicate in any manner that he did not go to the hospital or that he left the hospital before arrival of Sub-Inspector Moloy Bhattacherjee. I arn, therefore, unable to accept the contention of Mr. Roy that the F.I.R. of this case was subsequently manufactured.
13. There is no dispute over fact that the two independent eye-witnesses supported the prosecution case. In course of his argument Mr. Roy, the learned counsel for the appellant however argued that their evidence suffered from contradictions. I have gone through the entire evidence on record, particularly, the evidence of P.Ws. 8, 1 and 2 but I am unable to accept the contention of Mr. Roy.
14. P.W. 8, who is the victim in this case deposed that on the date of occurrence at about 7.30 a.m. he along with Mukunda Paul (P.W.1) and Rajmohan Shil (P.W. 2) took tea in the stall of Srinath Mallik and thereafter they proceeded towards the bazar. He deposed that as they came near the house of Bhabatosh Biswas (P.W. 7) the accused-appellant suddenly appeared before him with a dao in his hand and struck successive blows on his person causing severe bleeding injuries. He also deposed that on getting the injuries on his person he fell down on the ground. His further version was that both P.W.1 and P.W. 2 tried their best to save him. But in spite of their resistence the accused-appellant struck the blows on his person. According to him after the incident he was taken to Belonia Hospital and thereafter he was shifted to G.B. Hospital. The witness has been cross-examined but nothing material could be brought out to discredit his version. Rather it appears that so many irrelevant questions were put to the witness.
15. P.W. 1 Mukunda Paul who is an eyewitness supported the version of P.W. 8 by stating that on that day he along with P.W. 8 and P.W. 2 was going towards the bazar and as they proceeded to a certain distance the accused-appellant suddenly appeared there with a dao in his hand and struck successive blows on the person of P.W. 8. He further deposed that they raised cries and on hearing their cries some people also rushed to the scene of occurrence and thereafter they took P.W. 8 to the hospital for his treatment.
16. Similarly, P.W. 2 Rajmohan Shil who is another eye-witness deposed that while they were going to the market accused-appellant suddenly appeared before them and struck successive blows by means of a dao on the person of P.W. 8. He also deposed that on hearing their cries some persons also came there and thereafter they took P.W. 8 to the Belonia hospital.
17. P.W. 3 Santosh Chandra Bal who also came to the scene of occurrence on hearing the cries, stated that as he rushed to the scene of occurrence he found Sudhangshu Bhattarcharjee (P.W. 8) lying on the ground with injuries on his person. So he asked P.Ws. 1 and 2 as to how it happened. According to him he carne to know from them that it was accused-appellant who suddenly came before them and sturck blows on the person of P.W. 8. The evidence of this witness shows that on hearing the cries he rushed to the scene of occurrence and as soon as he went there he came to know from P.Ws. 1 and 2 that it was the accused-appellant who inflicted injuries on the person of P.W. 8.
18. P.W. 4 Jogendra Kr. Kar who also rushed to the scene of occurrence on hearing the cries deposed to the same effect. P.W. 7 also deposed that at that time he heard the cries in the words "Thakurke katia felche" (Thakur has been cut).
19. I have also quite carefully gone through the cross-examination of these witnesses but I find that in none of the cross-examinations there is any suggestion to any one of them having any animocity or ill-will towards the appellant. The statements of the appellant during his examination Under Section 313 of CrPC also do not indicate even remotely that the aforesaid eyewitnesses were interested in implicating him in this case falsely.
20. The evidence of the eye-witness is also supported by the medical evidence on record. Dr. Rabindra Nath Choudhury (P.W. 10) who examined P.W. 8 Sudhangshu Bhattacharjee deposed that on 19-1-1986 he examined the victim Sudhangshu Bhattacharjee in Belonia hospital and during examination he found the following injuries :
1. Deep incised wound measuring 5" x 2" x 2" on the left side of the neck standing from 2" lateral side from mid line on the back of the neck and about 3" deep before the left ear lobe. The doctor opined that it was a grievous injury caused by sharp cutting weapon and that this injury cut the mussles and vessles of the neck causing profuse bleeding.
2. Deep incised wound semi lunar shaped 6" x 1" x full scalp thickness on the occipital region of head. This injury, according to the doctor was simple in nature but it was also caused by sharp cutting weapon.
3. Penetrative wound measuring 3" x I" x 3" on the back of the chest in the inter scapular region. The doctor stated that it was grievous in nature and it was caused by sharp cutting weapon.
4. Incised wound measuring 2" x 1" x 3" on the right shoulder. This injury was simple in nature but it was also caused by sharp cutting weapon; and
5. Incised wound measuring 3" x I" x full scalp thickness on the left parieital area of scalp. This injury was simple in nature but it was also caused by sharp cutting weapon.
21. The doctor has been cross-examined, but I do not find anything there to disregard the evidence of the doctor. The evidence of the eyewitnesses are therefore well supported by the evidence of the doctor.
22. Thus, in view of above discussions, I am of the opinion that it has been well established by the prosecution that on the date and time as mentioned in the charge accused-appellant caused severe injuries on the person of P.W. 8 Sudhangshu Bhattacharjee by means of a sharp cutting weapon, viz. dao.
23. The learned counsel for the appellant has argued that there was no apparent motive for the crime and the prosecution also could not prove that there was any motive. It may, however, be mentioned that law in this regard is settled. In a criminal case even if the prosecution has failed to prove the motive of the accused in committing the crime yet the conviction can be made if the evidence is unimpeachable in nature connecting the accused as the offender of the alleged crime. In the instant case it would be quite apparent from the evidence I have discussed above that P.Ws. 1 and 2, the two independent witnesses are the eyewitnesses to the occurrence. Therefore, in lace of the evidence of eye-witnesses supporting the prosecution case absence of proof of motive is of no importance.
24. In the case of State of Madhya Pradesh v. Digvijay Singh, reported in AIR 1981 SC 1740 : (1981 Cri LJ 1278) it has been held by their Lordships under para 18 of the judgment that it may be that the prosecution was not able to prove the motive for the crime, but that could not possibly matter when the circumstantial evidence on record was sufficient to prove, beyond any doubt, that it was the accused and no one else who intentionally cause the death of the deceased.
25. In the case of Molu v. State of Haryana, reported in AIR 1976 SC 2499 : (1976 Cri LJ 1895) the Supreme Court held under para I 1 of thejudgment that 'it is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved; sometimes, however, motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them the question whether there is any moti vc or not becomes wholly irrelevant.
26. I have discussed the evidence of the eyewitnesses above and showed why reliance should be placed on the testimony of those eye-witnesses. Therefore, in view of the evidence, particularly, in view of the law laid down by the Supreme Court as discussed above the contention of Mr. Roy is not acceptable.
27. In this case the evidence of doctor clearly shows that injuries were caused on the vital parts of the body of P.W. 8. While giving discription of injury No. 3 it was stated by the doctor that the injury was not only grievous in nature but air was going inside and coming out with hitching sound. The evidence on record also shows that the dying declaration of P.W. 8 was also recorded. The condition of P.W. 8 was so serious that he was referred to the G.B. Hospital at Agartala and he was saved by timely medical aid. Otherwise, the injuries which were caused upon him were likely to prove fatal. The evidence of the doctor thus clearly established that the injuries which were caused were dangerous to life in the ordinary course of nature. It has also been well established that the accused-appellant inflicted the injuries by means of a sharp cutting weapon like dao, and that he caused the injuries on the vital parts of the body of P.W. 8, P.W. 8 deposed that both P.Ws. 1 and 2 tried their utmost to save him. Therefore, the cumulative effect of all the facts and circumstances lead to the inference that the accused-appellant caused such injuries as was likely to cause the death. The evidence on record docs not indicate even in a casual manner that it was the result of the provocation at a fight at the time of incident.
28. Therefore, in view of all the facts, circumstances and probabilities I come to the conclusion that there was an attempt to cause death and only timely medical aid saved the appellant being charged with the commission of the offence of murder.
29. The next contention urged by Mr. Roy, the learned counsel for the appellant is that learned Addl. Sessions Judge committed error of law in not releasing the appellant Under Section 360 of CrPC It is, therefore, necessary to see the scope and application of Section 360 of CrPC A persual of Section 360 of CrPC will show that this section applies to two classes viz. (1) women and all persons under the age of 21 years and (2) persons over that age. In the former case the accused may be treated as a first offender, if convicted of an offence not punishable with death or imprisonment for life and in the later case if convicted of an offence punishable with imprisonment for seven years or less. There is another class (3) which embraces persons convicted of (a) the offences specified in Sub-section (3) under the Penal Code or (b) other offences under the same Code punishable with not more than two years' imprisonment or punishable with fine only, who may be released 'after due admonition'. The word 'trivial' occurs only in Sub-section (3).
30. In order to give jurisdiction, two conditions must co-exist; (i) no previous conviction is proved, and (ii) the offence must be of the character specified in the section.
31. In the instant case, the accused-appellant has been charged with the offence of Section 307 of IPC which entails imprisonment for life or imprisonment for 10 years. Therefore, the accused-appellant cannot be dealt with Under Section 360, CrPC
32. The last contention of Mr. Roy is that the learned Addl. Sessions Judge did not comply with the mandatory provisions laid down Under Section 235(2) of CrPC In support of his contention Mr. Roy has referred to a decision of the Supreme Court rendered in- the case of Allauddin Mian Sharif Mian v. State of Bihar, reported in AIR 1989 SC 1456 : (1989 Cri LJ 1466). In the aforesaid judgment it has been held by the Supreme Court that Section 235(2) of CrPC is mandatory and should not be treated as mere formality. It has been observed by their Lordships that in a case of life or death as in the case of punishment for murder, a Presiding Officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. Their Lordships also observed that in a case of such nature, the trial Court should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed upon the offender. The aforesaid decision was with respect to the case of murder and some other charges. However, their Lordships allowed the appeal partly. The conviction of accused Nos. 1 and 2 under all the heads was confirmed. But their sentence of death for killing Sahana Khatoon and Chand Tara respectively was converted to imprisonment for life. The conviction and sentence passed upon accused Nos. 3 to 6 Under Sections 326/149 of IPC was set aside.
33. In the instant case, the accused-appellant was charged Under Section 307 of the IPC There is no dispute that after the order of conviction is recorded it is obligatory for the Court to hear the culprits on the question of sentence unless it releases him on probation of good conduct of admonition Under Section 360 of CrPC In the present case, on going through the records I find that learned Addl. Sessions Judge after pronouncement of his order of conviction gave the accused-appellant chance to make his submission. The statement that was given by the accused-appellant was also recorded by the learned Addl. Sessions Judge in his judgment. The statements given by the accused-appellant do not indicate that he had anything more to submit. Moreover, learned counsel for the appellant did not make any submission before this Court that he had anything more to submit on behalf of the appellant or place anything in writing by affidavit or otherwise. Learned counsel for the appellant did not make any submission to give him any opportunity to adduce any evidence or date before this Court on the question of sentence. It is already stated that Section 307 of IPC entails imprisonment for life or imprisonment for 10 years.
34. Therefore, in view of the above facts there is no scope to say that Section 235(2) of CrPC was not complied with. It however, appears from the statement of the accused-appellant which was recorded by the learned Addl. Sessions Judge that the accused-appellant was 65 years of age. So, considering his age I am of the view that a lesser punishment will meet the ends of justice.
35. In the result, the conviction of the accused-appellant Under Section 307 of IPC is affirmed, but the sentence awarded thereunder is reduced to 4 years only. With this modification of sentence the appeal is disposed of. The accused-appellant is on bail. Therefore, he shall surrender to his bail and undergo sentence. The trial Court shall take steps for sending him to jail under proper warrants.
A copy of this order be sent to learned Sessions Judge, South Tripura, Udaipur immediately.