Tripura High Court
Sri Dipak Bhowmik vs The State Of Tripura on 30 June, 2021
Equivalent citations: AIRONLINE 2021 TRI 358
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
Page - 1 of 25
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No. 04 of 2019
Sri Dipak Bhowmik,
Son of Lt Nitya Gopal Bhowmik, resident of East Mirza, P.S.-Kakraban, District-
Gomati, Tripura.
----- Petitioner(s)
Versus
The State of Tripura
-----Respondent(s)
For Petitioner(s) : Mr. B.N. Majumder, Senior Advocate.
Mr. Alik Das, Advocate.
For Respondent(s) : Mr. R. Datta, Public Prosecutor.
Date of Hearing : 3rd February, 2021.
Date of Pronouncement : 30th June, 2021.
Whether fit for reporting : Yes No
√
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
By means of filing this criminal revision petition, petitioner Dipak
Bhowmik has challenged the judgment dated 06.12.2018 passed by the Sessions
Judge, Gomati Judicial District, Udaipur in Criminal Appeal No. 11(1) of 2018
affirming the judgment and order of conviction and sentence dated 29.01.2018
passed by the Chief Judicial Magistrate, Gomati Judicial District whereby
Crl. Rev. P. No. 04 of 2019
Page - 2 of 25
petitioner Dipak Bhowmik was convicted under section 326 IPC and sentenced to
RI for 2(two) years and fine of Rs.5,000/- with default stipulation.
[2] Maintainability of the conviction and sentence of the accused under
section 326 IPC is the core question to be decided in this criminal revision
petition. Therefore, before adverting to the factual score, it would be appropriate to
have a look into the relevant statute. For the sake of convenience, section 326 IPC
is set out herein below:
"326. Voluntarily causing grievous hurt by dangerous weapons
or means--
Whoever, except in the case provided for by section 335,
voluntarily causes grievous hurt by means of any instrument
for shooting, stabbing or cutting, or any instrument which,
used as a weapon of offence, is likely to cause death, or by
means of fire or any heated substance, or by means of any
poison or any corrosive substance, or by means of any
explosive substance, or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal, shall be
punished with 1[imprisonment for life], or with imprisonment
of either description for a term which may extend to ten years,
and shall also be liable to fine."
[3] It would emerge from the statute that for conviction under section
326 IPC it has to be essentially proved that accused voluntarily caused grievous
hurt to the victim by dangerous weapons or means. Section 320 IPC has
designated certain kinds of hurt as grievous hurt which are as under:
"320. Grievous hurt.--The following kinds of hurt only are
designated as "grievous":--
First -- Emasculation.
Crl. Rev. P. No. 04 of 2019
Page - 3 of 25
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."
[4] Petitioner of the present case is charged with the offence of
voluntarily causing grievous hurt to the victim by means of a sharp edged weapon
called Kurki on the alleged date of occurrence.
[5] On the factual score, it appears that the victim [PW-1] lodged a
written ejahar with the officer in charge of Kakraban police station on 09.07.2016
at about 06.13 pm alleging, inter alia, that 3 (three) days back on 06.07.2016 at
around 11 O‟ clock in the night while he was returning home from Mirza bazaar
on his bicycle, the focus of his torchlight fell on the face of the petitioner. As a
result the petitioner got agitated and started arguing with him. In the course of
arguments, the agitated petitioner dashed him several times. Suman Pal and
Biswajit Das who were accompanying the informant at that time came forward
and tried to settle the matter. But the petitioner ran to his house and returned with
a sharp edged weapon called Kurki and attacked the informant with the said
weapon. The informant prevented the first blow with his left hand. As a result he
Crl. Rev. P. No. 04 of 2019
Page - 4 of 25
received bleeding injuries in his left arm. The second blow hit his skull and ear.
He received grievous hurts in his skull and ear. The informant raised alarm to
save his life. Then the petitioner gave fist blow and kick on him and left. The
neighbouring people appeared and transported him to the nearby Tulamura
Primary Health Centre from where he was referred to the District Hospital at
Udaipur.
[6] Based on his ejahar, Kakraban PS case No. 2016KKB3058 under
section 326 IPC was registered and investigation of the case was endorsed to
Gautam Jamatia [PW-15] for investigation and report.
[7] In the course of his investigation, the investigation officer visited
the crime scene and prepared a hand sketch map indicating the material locations
of the crime scene in a separate index [Exbt.6]. He also met the injured at the
hospital, recorded his police statement under section 161 Cr.P.C, seized the said
torchlight from his possession by preparing a seizure list and collected his injury
report from the hospital after his treatment was over. The I.O also examined the
other material witnesses of this case and recorded their statements under section
161 Cr.P.C. He, however, could not seize the weapon of offence. Raid was
conducted in the house of the accused for arresting him. But he was granted pre
arrest bail under section 438 IPC. At the end of investigation, the investigating
officer submitted Challan No. 59 of 2016 dated 03.08.2016 for trial of the case
under section 326 IPC.
Crl. Rev. P. No. 04 of 2019
Page - 5 of 25
[8] Trial commenced in the court of the Chief Judicial Magistrate,
Gomati Judicial District, Udaipur on 25.04.2017 with the framing of following
charge against the petitioner:
"Firstly-That on 06.07.2016 at about 11/11.30 pm near the rice
mill of Rakhal Muhari at Mirza TLM road you voluntarily
caused grievous hurt to informant Sri Dipankar Datta by a
knife, a sharp cutting weapon and thus you have thereby
committed an offence punishable U/S 326 of IPC and within
the cognizance of this Court.
And I do hereby direct that you be tried on the said charges by
this court."
Petitioner pleaded not guilty to the said charge and desired to stand
the trial.
[9] In the course of trial, prosecution examined as many as 17
(seventeen) witnesses including the informant, the medical officer and the
investigating officer and relied on as many as 12 (twelve) exhibits to establish the
charge against the petitioner.
[10] After the recording of the prosecution evidence was over, petitioner
was examined under section 313 Cr.P.C. The memorandum of his examination
under section 313 Cr.P.C demonstrates that as many as 154 questions were asked
to him explaining the incriminating evidence appearing against him. In his reply
statement, he denied the prosecution case and claimed that the charge was foisted
on him. When he was asked as to whether he would like to adduce any defence
witness, petitioner denied to adduce any defence witness.
Crl. Rev. P. No. 04 of 2019
Page - 6 of 25
[11] On appreciation of evidence, the trial court held the petitioner guilty
of offence punishable under section 326 IPC and sentenced him for the offence
observing as under:
"24. In this case, PW.15 SI Gautam Jamatia also proved the
fact of receiving FIR, registration of case, preparation of hand
sketch map and index, seizure of torchlight, collection of injury
report and filing of charge sheet.
As regards the submission of Ld. Defence counsel that P.O is a
village road as deposed by I.O and victim was going to his
house through Mirza-Tulamura road and to go to the house of
victim through Mirza-Tulamura road it is not necessary to
enter into the village road indicated A of the place of
occurrence, I am of the view that the place of occurrence
indicated as A is situated near and side by the Mirza-Tulamura
road and, therefore, I find, the submission of Ld. Defence
counsel has no force. I am also of the view that the defence
failed to bring the distance of the P.O from the Mirza
Tulamura road. Thus, it safely can be said that the place of
occurrence is near and side by the Mirza-Tulamura road.
Thus, I find, there is no contradiction or discrepancy in the
prosecution evidence about the place of occurrence. As regards
the submission of Ld. Defence counsel about the non
corroboration of prosecution case by PW.16 being the friend of
PW.1, the victim and PW.6, I am of the view that hostility of
witnesses in criminal cases are not new and it is common
experience that in criminal cases witnesses are easily turn
hostile and deviate from the police statement including friend
and relative witnesses. In this case, the prosecution case is
corroborative with the police statement of PW.16 and other
hostile witnesses as discussed above. Thus, I find, the
submission of Ld. Defence counsel has no merit. As regards
the non seizure of knife by I.O., I am of the view that the same
is not fatal as injury by sharp cutting weapon is sufficiently
proved by prosecution witnesses including by medical evidence.
Thus, therefore, considering all the evidence as described
above, I find, it can be said that on 6.7.2016 at about 11/11.30
p.m near the rice mill of Rakhal Muhari at Mirza accused
Dipak Bhowmik voluntarily caused grievous hurt to informant
Sri Dipankar Datta by a knife which is a sharp cutting weapon.
Crl. Rev. P. No. 04 of 2019
Page - 7 of 25
Accordingly, point No.(i) is decided in affirmative and in
favour of the prosecution but against the accused.
ORDER
In the result, I find, the prosecution has well established its case beyond any reasonable doubt the offence punishable under Section 326 of IPC against accused namely, Sri Dipak Bhowmik and, therefore, he is convicted for the offence punishable under Section 326 of IPC.
Now, I am to consider whether the convict can be given benefits under Probation of Offenders Act, 1958. As offence punishable under Section 326 of IPC is punishable with imprisonment for life benefit of the Probation of Offenders Act, 1958 cannot be given to the convict.
H E A R I N G ON S E N T E N C E Thus, heard convict namely, Sri Dipak Bhowmik and learned defence counsel on the matter of sentence. In this respect, the convict stated that he is poor and only person to look after his family and he has committed no incident and prayed for mercy of this court.
Having heard and considering the facts and circumstances of this case, I am of the view that if a sentence of rigorous imprisonment(RI) for 02(two) years and a fine of Rs.5000/- (Rupees five thousand) i.d. of payment of fine further RI for 02(two) months is given to the convict for offence under Section 326 of IPC, the same would meet the ends of justice.
SENTENCE Accordingly, the convict namely, Sri Dipak Bhowmik is sentenced to rigorous imprisonment(RI) for 02(two) years and a fine of Rs.5000/- (Rupees five thousand) i.d. of payment of fine further RI for 02(two) months for offence punishable under Section 326 of IPC."
Crl. Rev. P. No. 04 of 2019
Page - 8 of 25 [12] As noted, petitioner assailed the judgment of the trial court in appeal before the Sessions Judge. The learned Sessions Judge re-evaluated the whole evidence and by a detailed judgment affirmed the judgment and order of conviction and sentence passed by the trial court observing as under:
"7. Hence, the combination of the evidence of the victim PW.1, PW.6, PW.7 and PW.9 coupled with the medical evidence of PW.13 and PW.17 proves with absolute certainty that on 06.07.2016 at about 11 p.m. the accused-appellant committed assault on the victim PW.1 with sharp cut weapon causing grievous injury. In cross-examination of the said PWs no material infirmity has been brought about so as to doubt their credibility.
8. As regard the other PWs I find that PW.5,10,12 and 14 are seizure witnesses. In respect of the torch light and injury report etc. PW.2 is the neighbour of the appellant who turned hostile, however, he has stated this much that at about 11 p.m. one person with bleeding injury came to his house and fell down and his tenant gave him medicine. PW.3 also has stated this much that at about 11 p.m. one person with bleeding injury came to her house and fell down and he was given primary medical aid. He has further stated that two other persons were also with the injured. The evidence of PW.2 and 3 thus broadly stands in corroboration as far as the injured condition of the victim is concerned.PW.4 also is a neighbour of the appellant who turned hostile. PW.8 is the scribe of the ejahar. PW.11 is the owner of the vehicle by which the victim was shifted to hospital from the place of occurrence. He has further stated that he saw that the patient Dipankar Datta was having bleeding injury. PW.15 is the IO of the case who has stated about the acts of investigation. PW.16 is the other companion of the victim who unfortunately turned hostile and as such, the prosecution case did not get any support from him.
9. As regards the argument of learned counsel for the appellant about non seizure of the weapon of offence, I find that the learned Trial Court has rightly observed that the non seizure of the weapon of offence is not fatal in view of the fact that the injury by sharp cutting weapon has been sufficiently proved by the prosecution witnesses and medical evidence. Here, I may also add that after all the weapon of offence was with the Crl. Rev. P. No. 04 of 2019 Page - 9 of 25 accused-appellant and it is only natural that he will make all efforts to conceal the weapon so that it does not go to the hand of the police. As such, non seizure of the weapon of offence under the given facts situation of the case cannot be regarded as fatal.
10. In view of the clear and convincing evidence given by the victim PW.1 and corroborated by PW.6, 7 and 9 and further corroborated by the medical evidence of PW.13 and 17, I am of the view that the learned Trial Court has rightly held that the charge under Section 326 of IPC has been proved against the appellant Dipak Bhowmik. As such, I find no infirmity in the judgment of learned Trial Court so as to take a different view.
11. As regards the sentence it appears that the Trial Court has sentenced the appellant to RI for R.I. for two years and fine of Rs.5,000/- in default to R.I. for two months for the offence under Section 326 of IPC.
In view of the gravity of the offence being under Section 326 of IPC and the location of the injury being the vital part of the body of the victim and there being no convincing mitigating circumstance in favour of the appellant, I am of the view that the quantum of sentence as awarded by learned Trial Court is not excess, rather it is on the lower side. Hence, I find no justification to interfere with the quantum of sentence as awarded by the learned Trial Court.
ORDER
12. In the result, the appeal is dismissed being devoid of merit The judgment dated 29.01.2018 passed by learned Chief Judicial Magistrate, Gomati, Udaipur in case No.PRC (WP) 117 of 2016 is hereby upheld."
[13] The petitioner has challenged the impugned judgment mainly on the following grounds:
(i). The trial court as well as the appellate court did not appreciate the medical evidence of PW-13 from the right perspective. The said medical report of PW-13 Crl. Rev. P. No. 04 of 2019 Page - 10 of 25 does not support that grievous hurt in terms of section 320 IPC was caused to the victim [PW-1]. Therefore, conviction and sentence under section 326 IPC is not sustainable.
(ii). The trial court as well as the appellate court did not appreciate the fact that most of the witnesses turned hostile in the case who told at the trial that the victim received such injury by falling on the rough surface of a GCI sheet.
(iii). The crime scene could not be identified by the investigating officer which casts doubt on the veracity of the prosecution case and the courts below did not appreciate the fact.
(iv). The victim was in hospital only for 3 (three) days after which he resumed his normal work. Had it been a grievous injury the victim would not have recovered and released from hospital so fast.
(v). The FIR was lodged 3(three) days after the occurrence for which prosecution offered no explanation at all.
[14] In the course of his arguments, Mr. B.N. Majumder, learned senior advocate appearing along with Mr. Alik Das, advocate, vehemently argued that for conviction under section 326 IPC, one of the injuries defined in section 320 IPC must be proved failing which the charge under section 326 IPC cannot survive against the accused. In support of his contention Mr. Nandi Majumder, learned senior advocate has relied on the decision of the Apex Court in Mathai Crl. Rev. P. No. 04 of 2019 Page - 11 of 25 Vs. State of Kerela reported in AIR 2005 SC 710. Mr. Nandi Majumder, learned senior advocate further argued that the investigating agency could not recover the weapon of offence. As a result, the court did not have any idea about the size and sharpness of the weapon to determine as to whether it was a dangerous weapon within the meaning of section 326 IPC. In these circumstances, conviction and sentence of the petitioner under section 326 IPC was erroneous. Mr. Nandi Majumder, learned senior advocate has also relied on the decision of this court in Crl. Rev. P. No. 38 of 2019 wherein the accused convicted under section 325 IPC was released under the Probation of Offenders Act and placed under the supervision of probation officer. Mr. Nandi Majumder, learned senior advocate submits that in view of the evidence on record if it so appears to this court that the accused petitioner caused hurt to the victim his conviction may be converted into a conviction under section 324 IPC and similar benefit of Probation of Offenders Act may be extended to the petitioner.
[15] Mr. R. Datta, learned Public Prosecutor appearing for the State respondent on the other hand supports the impugned judgment and submits that petitioner could not make out any ground to interfere with the concurrent findings of the courts below with regard to the conviction and sentence of the petitioner under section 326 IPC and as such the criminal revision petition is liable to be dismissed.
[16] In the course of their arguments, learned counsel representing the parties had taken this court to the evidence of the prosecution witnesses. Crl. Rev. P. No. 04 of 2019
Page - 12 of 25 [17] Sri Dipankar Datta [PW-1] is the victim who told at the trial that on the material day when he was returning home along with Suman Pal [PW-6] and Biswajit Das [PW-16] on his bicycle, he frequently flashed his torch to see the road. Suddenly, the focus of his torch fell on the eyes of the accused. Instantly, the accused got agitated and started abusing him with slang language. As a result, a hot altercation took place between them. The accused petitioner then brought a sharp edged weapon called „Kurki‟ and hit him with the said weapon on his left shoulder and left ear. He received bleeding injury from the assault and lost his sense. The neighbouring people appeared and got him admitted at Tulamura Hospital where he regained his sense. From Tulamura Hospital he was referred to the District Hospital at Udaipur where he was admitted for 3 (three) days. After his discharge from the hospital he lodged the ejahar. The PW further stated that the torchlight was seized by the investigating officer during investigation and on identification of the same after trial, the said torchlight was marked as Exbt.MO1.
The witness was cross examined by the counsel of the accused at length. Accused tried to project a defence case through the cross examination of the witness. According to the accused, when the victim [PW-1] and his associates were illegally transporting a stolen timber along the lane in front of his house, local people noticed them committing the offence and chased them. As a result the witness slipped from his motorbike and received the said injuries. Subsequently, he filed a false case against the accused to teach him a lesson. The said story has been denied by the PW. Some more suggestions were put to the Crl. Rev. P. No. 04 of 2019 Page - 13 of 25 witness on behalf of the accused. It was suggested to him that he was not returning home along with PW-6 and PW-16 and he was not assaulted by the accused. The PW denied those suggestions.
Thus, the evidence of PW-1 with regard to his assault by the accused petitioner could not be impeached to any extent by his cross examination. [18] Sri Suman Pal [PW-6] who was accompanying the victim [PW-1] at the material time supported the evidence of PW-1 by saying that at the material time when they were returning home together, the focus of the torchlight which was held by the victim fell on the eyes of the accused who immediately reacted by using slang language towards the victim. The incidence resulted in a hot altercation between the accused and the victim. The accused then assaulted the victim with a „Kurki‟ and caused fatal injuries to him. The victim lost his sense at the spot from where he was first taken to Tulamura Hospital and from there to District Hospital at Tepania.
In his cross examination, the PW stated that he was a friend of the victim. He denied the defence story that the victim was chased by the accused while he was transporting a stolen timber and at that time he slipped from the bike and received the said injuries. The accused could not discredit the witness by cross examination. His evidence regarding the assault of the victim by the accused remained unembellished.
Crl. Rev. P. No. 04 of 2019
Page - 14 of 25 [19] Surprisingly, Biswajit Das [PW-16] who was also accompanying the victim at the time of occurrence did not support the prosecution case. He was declared hostile to the prosecution at the trial. The prosecution lawyer cross examined him and during such cross examination, his attention was drawn to his police statement recorded under section 161 Cr.P.C wherein he stated that he was returning home along with the victim. When the accused assaulted the victim with a Kurki and caused bleeding injuries to his shoulder and ear. The witness denied to have made any such statement to police.
In his cross examination by the counsel of the accused the PW stated that he gave correct statement before the court. [20] Sri Ratna Acharjee [PW-2], a neighbour of the accused stated that the occurrence took place at about 11.30 pm. According to the PW, an injured person came to her house at the time when a tenant of her gave some medicine to the injured. The PW stated that she could not say how the person received the injuries. PW-2 was also declared hostile to the prosecution who was cross examined by the prosecution lawyer. During her cross examination her police statement recorded under section 161 Cr.P.C was shown to her. She disowned the entire statement.
[21] Smt. Bani Datta [PW-3] gave similar evidence. According to her, she saw a injured person entering into the house of PW-2 at the material time. The house inmates nursed him and applied medicine to his injuries. The PW Crl. Rev. P. No. 04 of 2019 Page - 15 of 25 could not say how he received such injuries. She was declared hostile to the prosecution and she was also cross examined by the prosecution counsel. Her attention was drawn to her statement recorded under section 161 Cr.P.C. She denied to have made such statement to police.
[22] Sri Malay Ghosh [PW-4] stated in his examination in chief that the victim was engaged in an illegal business of transporting stolen timber to various places. While carrying out such business he was chased by the local people as a result of which he slipped from his bike and received injury. The PW was declared hostile to prosecution.
During his cross examination by the prosecution lawyer his attention was drawn to his police statement. The PW disowned the statement. In his cross examination by learned counsel of the accused, he repeated the same story and said that while the accused was transporting stolen timber during night, he was chased by the local people and while crossing a speed breaker on the road he slipped from his bike and received the injury.
[23] Md. Jashim Uddin Chowdhury [PW-5] a constable of police simply stated that pursuant to the direction of the investigation officer, he collected the injury report of the victim from the District Hospital at Udaipur. [24] The evidence of Sri Suman Pal [PW-6] has already been discussed. Sri Litan Datta [PW-7] is the cousin brother of the victim who met his injured Crl. Rev. P. No. 04 of 2019 Page - 16 of 25 brother at Tulamura Hospital and came to know from him that while he was returning home from Mirza bazaar, accused assaulted him with a Kurki as focus of his torchlight fell on his eyes.
In his cross examination, it was suggested to him that his brother Dipankar Datta was engaged in illegal business of selling stolen timbers and while pursuing such business during the night he was chased by the local people. As a result he slipped from the bike and received injuries. He denied the suggestions.
[25] Sri Harun Miah [PW-8] stated that he had written the ejahar following the version of the victim. The said ejahar was identified by the witness and marked as Exbt-1(i).
[26] Sri Samir Sarkar [PW-9] did not witness the occurrence. He heard about the occurrence from the victim over telephone. Later he went to Tulamura hospital where he met the injured.
[27] Sri Priyatosh Debnath [PW-10] was a Special police officer posted at Kakraban police station. On 08.08.2016 he seized a torchlight from the possession of the victim.
[28] Sri Prabir Das [PW-11] did not support the prosecution case. As a result of which he was declared hostile to the prosecution and cross examined by Crl. Rev. P. No. 04 of 2019 Page - 17 of 25 the learned prosecution counsel. Nothing could be extracted from him in support of the prosecution case.
[29] Sri Jiban Krishna Pal [PW-12], a police constable stated that the injury report of the victim was collected by police in his presence from Tulamura hospital. He signed the seizure list as a witness.
[30] Dr. Joysankar Majumder [PW-13] is the medical officer who attended the victim at Tulamura Primary Health Centre when he was brought to the said health centre in injured condition. The PW made the following statement:
"On 06.07.2016 I was posted as medical officer at the Tulamura PHC. On that day one patient namely, Dipankar Datta was examined by me at Emergency block of Tulamura PHC with the history of injury in left pinna and scalp following assaulted by known persons. There was also the history of loss of consciousness. On examination I have found cut injury in left pinna and scalp around left ear measuring 2cm x 0.5 cm x .25 cm and second was 4cm x .5cm x .25 cm. It was cut injury occurred by any sharp weapon. The injury was severe in nature and caused by sharp weapon. Stitching under the local anaesthesia and patient referred to Gomati District Hospital for further management. This is the injury report prepared by me which is marked as Exb.4 as a whole. These are my signatures on the said injury report which is marked as Exbt. 4(i) & 4(ii)."
In his cross examination, the PW stated that he did not inform the police station after the injured was brought to the health centre even though a history of assault was reported. The PW stated that such injury could have sustained by falling on a tin sheet.
Crl. Rev. P. No. 04 of 2019
Page - 18 of 25 [31] Sri Samir Das [PW-14] was a special police officer at Tulamura police outpost in whose presence the torchlight of the victim was seized. [32] Sri Gautam Jamatia [PW-15] is the investigating officer who deposed that he conducted the whole investigation of the case and during his investigation he examined the material witnesses and truly recorded their statements under section 161 Cr.P.C. The PW further stated that having found sufficient materials against the accused he submitted charge sheet against him on the charge of offence punishable under section 326 IPC.
In his cross examination, he confirmed that he did not seize the weapon of offence.
[33] Dr. Manoj Debbarma [PW-17] was posted at the District Hospital at Udaipur as a medical officer when the injured victim was brought to the Hospital. Statement of the PW made out in his examination in chief is as follows:
"On 7.7.2016 I was posted as medical officer at Gomati District Hospital, Udaipur. On that day one patient namely, Sri Dipankar Datta was admitted in the said hospital with history of physical assault on 6.7.2016. On examination I have found lacerated cut injury on left pinna and post ocular region measuring 3 cm length. The injury was grievous in nature and caused by sharp weapon. This is the injury report which is already marked as Exbt.7. These are my signatures on the said injury report which are marked as Exbt.7(i) & 7(ii)."
[34] It would emerge from the evidence as discussed above that most of the witnesses turned hostile to prosecution during the trial of the case except PW- Crl. Rev. P. No. 04 of 2019
Page - 19 of 25 1, PW-6, PW-7, PW-9 & PW-17. Among them only PW-1 & PW-6 are the eye witness to the occurrence. Other PWs are official witnesses including the police officers and medical officers. PW-1 & PW-6 are consistent on the point that accused assaulted the victim in presence of PW-6 while they were returning home together. Even thought the other witnesses turned hostile, the evidence of PW-1 & PW-6 read together establish the charge of assault beyond reasonable shadow of doubt. The core question to be decided is whether the hurt caused to the accused by way of such assault can be termed as grievous hurt in terms of section 320 IPC and whether such hurt was caused voluntarily and whether the weapon used by the accused was a dangerous weapon.
[35] In the case of Mathai Vs. State of Kerela (Supra) relied upon by the counsel of the accused the Apex Court has held that before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in section 320 must be strictly proved and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly. [Para 15] [Italics supplied].
Doctor‟s evidence is very relevant to determine whether it was a grievous hurt in terms of section 320 IPC. The doctor [PW-13] examined the injured at the Primary Health Centre and noticed the following injuries vide his report [Exbt.4]:
(i). Cut injury measuring 2 cm x 0.5 cm x 0.25 cm over left pinna.Crl. Rev. P. No. 04 of 2019
Page - 20 of 25
(ii). Cut injury measuring 4 cm X 0.5 cm x 0.25 cm over the skull around the left ear circle.
According to the doctor, the injuries were "severe type" of injury caused by sharp weapon. The injuries were stitched and dressed at the Primary Health Centre.
[36] Another doctor [PW-17] who treated the injured at the District Hospital found the following injuries:
(i). Cut injury measuring 3 cm over left pinna and head.
(ii). Cut injury measuring 3 cm over ocular region.
According to the doctor the injuries were "severe" and caused by sharp weapon. He recorded the injuries in his report [Exbt.7]. [37] Though the investigating officer could not recover the weapon of offence it has been consistently stated by the victim as well as by PW-6 that the accused assaulted the victim with a Kurki which is a sharp edged weapon. The doctors [PW-13 & PW-17] have also consistently stated that the injuries were inflicted to the victim by means of sharp weapon. Through the weapon of offence has not been seized and no evidence is led with regard to the size and sharpness of the weapon, from the medical evidence and the extent of injuries it can be safely held that the weapon used by the accused for assaulting the victim was a dangerous weapon.
Crl. Rev. P. No. 04 of 2019
Page - 21 of 25 [38] Evidently, the accused gave the blow on the victim in the fits of anger. From the evidence of the prosecution witnesses, it would appear that the attack on the victim was not a premeditated attack. Quite evidently, the focus of the torchlight held by the victim fell on the face of the accused which made him agitated. Hot exchange of words took place between the accused and the victim and in the fits of anger he attacked the victim with a sharp edged weapon. Even though the evidence suggests that provocation preceded the occurrence but whether such provocation was grave within the meaning of section 335 of IPC cannot be determined in absence of the exact words used during such altercation between the accused and the victim.
[39] But, considering the injuries suffered by the victim it cannot be said that the victim suffered „grievous hurt‟ within the meaning of section 320 IPC. However, there is no doubt that hurt of the victim was caused by the accused by means of a dangerous weapon and as such the conviction of the accused petitioner is altered to that under section 324 IPC. [40] In the instant case, no previous conviction or any criminal antecedent of the accused has been brought to record. As noted, the circumstances of the case have revealed that the occurrence took place in the fits of anger. In such circumstances, it would be appropriate to provide the benefit of Probation of Offenders Act to the accused.
Crl. Rev. P. No. 04 of 2019
Page - 22 of 25 [41] This High Court in Mithun Debnath Vrs. State of Tripura reported in (2014) 2 TLR 922 while applying the provisions of Probation of Offenders Act, 1958 to a first time offender convicted under Section 325 IPC held as follows:
"12. ............... Imprisonment is not always the only answer. Sentencing need not only be retributive in nature it can also be reformative in nature. There can be no hard and fast rule as to in which cases probation is to be granted and in which cases it is not to be granted. Even with regard to the same offence, in certain cases probation may be granted and in certain cases probation may not be granted. Many factors will have to be taken into consideration. One of the principal factors will be the nature of the offence and by nature it is not only the section under which the offence is committed which is relevant but the manner in which the offence has been committed is also relevant. If the offence is committed at the heat of the moment due to a sudden altercation, the Court would be lenient towards the offender. However, if it is a case of a premeditated offence, then the Court may not grant probation. If a plan is made out to assault a certain person, that may be a ground not to grant probation. On the other hand, in case an occurrence takes place at the heat of the moment and a grievous injury is caused, then also probation may be granted if other conditions are satisfied.
13. Another important aspect to be taken into consideration is the age of the offender. If the offender is a person of young age, then the Court should always make an endeavour to release him on probation. It does not serve society any purpose if a young boy or girl of 20 or 21 years is sent to jail and made to live with hardened criminals. This Court is not oblivious to the fact that despite best intentions of the State and the jail authorities, the state of the jails is very bad and the young offenders may come in contact with hardened criminals in jail and may themselves become hardened criminals. This Court is not oblivious to the fact that in jails throughout this country many vices are available which are not so easily available outside the jails. Jails themselves are dens of corruption and it is better to keep young impressionable minds outside the jail rather than send them to jail..............."Crl. Rev. P. No. 04 of 2019
Page - 23 of 25 [42] It was further observed by this Court in paragraphs 22 and 23 of the judgment as follows:
"22................ As held by this Court above, it is not that in every case this benefit must be extended. The Court convicting the accused is best suited to decide this matter. It is the Judge who has seen the accused, seen his behaviour in Court and also knows how the occurrence took place. If the occurrence shows that the accused is a cruel person and is not likely to improve, the Court would be fully justified in not granting this benefit but if on the other hand, there is material to show that reformation can be carried out if the convict is a first time offender, he must be given benefit of these provisions.
23. Another consideration will also be the social status of the accused. If he belongs to the poor strata of society and has committed a theft because of his penurious financial condition, the Judge can take the same into consideration and give him an opportunity to improve himself. If on the other hand, it is shown that the person who has committed a crime has thought about the crime, committed it in a manner like a practiced criminal, then he may not be given the benefit thereof. However, as far as possible, the Courts must make an endeavour to find out whether the accused is to be granted this benefit or not and they should not discard these provisions of the Cr.P.C. and the Probation of Offenders Act only by writing two lines that the Judge is not inclined to release the convict under the Probation of Offenders Act or that the offender does not merit the benefits of these provisions."
[43] Apparently, the petitioner is a first offender. Keeping in view, the object of the provisions of the Probation of Offenders Act, 1958, the principles of law laid down in the judgments cited above and the facts and circumstances leading to the occurrence, it would be appropriate in this case to give the benefit of Probation of Offenders Act to the petitioner as a chance to improve himself instead of sending him to jail at once.
Crl. Rev. P. No. 04 of 2019
Page - 24 of 25 [44] For the forgoing reasons, the petitioner namely, Sri Dipak Bhowmik is released on probation for a period of one year in terms of Section 4 of the Probation of Offenders Act, 1958. The petitioner is directed to appear before the trial Court within one month from today and execute a bond of Rs.20,000/- with one surety of like amount to the satisfaction of the learned trial court on condition that during the period of probation he would maintain peace and be of good behaviour. In addition, the petitioner be placed under the supervision of the jurisdictional Probation Officer for the said period of one year for appropriate counselling. After the petitioner appear before the learned trial Judge, the learned trial Judge shall appoint a day for appearance of the Probation Officer for placing the petitioner under the supervision of Probation. The Probation Officer, shall thereafter, submit periodical report in the trial Court about the conduct of the petitioner during the period of his probation. [45] Section 5 of the Probation of Offenders Act, 1958 provides for compensation to be paid to the victim in appropriate cases. It appears from the record that the victim was in hospital for about three days for treatment of his injury and he was further advised to undergo better treatment in Gomati District Hospital at Tepania. Therefore, the victim should be adequately compensated for the loss suffered by him at the hand of the petitioner. Accordingly, the petitioner is directed to pay compensation of Rs.20,000/-(rupees twenty thousands) to the victim. The petitioner will deposit the said amount of compensation at the trial Court within a month from today and thereafter the learned trial Judge (Chief Crl. Rev. P. No. 04 of 2019 Page - 25 of 25 Judicial Magistrate, Gomati Judicial District) shall issue notice to the victim to appear and receive the compensation from the Court.
In terms of the above, the criminal revision petition stands disposed of. Pending application(s), if any, also stands disposed of.
Send back the LC record.
JUDGE Rudradeep Crl. Rev. P. No. 04 of 2019