Tripura High Court

Ratan Sarkar vs The State Of Tripura on 7 April, 2021

                   HIGH COURT OF TRIPURA
                         AGARTALA
                       Crl.Rev.P.No.74 of 2017
Ratan Sarkar
Bridhyanagar, P.S Ranir Bazar
                                                      -------Petitioner(s)
                                  Versus

The State of Tripura, represented By PP
                                                      -----Respondent(s)

For the Petitioner(s)       :      Mr. S.Lodh, Adv.
For the Respondent(s)       :      Mr. S.Ghosh, Addl.PP.
Date of hearing             :      27.01.2021
Date of pronouncement       :      07.04.2021
Whether fit for reporting   :      No.

                                  BEFORE
      HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                            JUDGMENT

[1] Petitioner has challenged the judgment dated

27.07.2017 delivered by the Addl. Sessions Judge(Court No.2)

West Tripura, Agartala in Criminal Appeal No.34 of 2016

affirming the conviction and sentence under Sections 341 and 326

IPC awarded by the Judicial Magistrate of the First Class, West

Tripura, Agartala in case No. PRC 172 of 2012 whereby petitioner

Ratan Sarkar was sentenced to RI for 6 months for commission of

offence under Section 341 IPC and RI for 2 years for having

committed offence punishable under Section 326 IPC and fine of

Rs.3,000/- with default stipulation. Aggrieved petitioner has

challenged the said judgment by means of filing this criminal

revision petition.

[2] The genesis of the prosecution case is rooted in the

FIR lodged by Smt.Gita Debnath [PW-1] at Ranirbazar Police

Station on 26.02.2012, Sunday, at around 2.15 P.M alleging that at

about 8 O'clock in the morning when her husband Arun Debnath

[PW-11] went to the jewelry shop of Pradip Debnath after buying

vegetables from Ranirbazar vegetable market, accused petitioner

attacked him with a 'dao' from his behind and started chopping him

indiscriminately. As a result of such assault, her husband received

bleeding injuries on both of his arms and scalp. He was

immediately, taken to Ranirbazar Primary Health Centre in a very

critical condition from where he was referred to GB Hospital.

When the FIR was lodged, the injured was undergoing treatment in

GBP Hospital. It was alleged by the informant [PW-1] that the

accused petitioner would have killed him had he not been rescued

by the local people.

[3] Based on her FIR, Ranirbazar P.S. Case No.12 of 2012

under Sections 341 and 326 IPC was registered and investigation of

the case was taken up by Jayanta Malakar, SI of police [PW-13].

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[4] Sri Jayanta Malakar [PW-13] carried out the whole

investigation of the case. During investigation, he visited the crime

scene. A hand sketch map indicating the material locations of the

crime scene was prepared by the IO along with the separate index.

The victim and the witnesses acquainted with the facts of the case

were also examined by him whose statements under Section 161

Cr.P.C. were recorded. The blood stained weapon of offence was

recovered from the crime scene in presence of witnesses along with

some blood stained mud from the place where the victim was

assaulted. The accused petitioner was also arrested on the same day

who was produced in court on the following day. After collecting

the injury report of the victim, the IO [PW-13] filed charge sheet

no.10 of 2012 dated 03.04.2012 against accused petitioner Ratan

Sarkar for having committed offence punishable under Sections

341 and 326 IPC.

[5] The Chief Judicial Magistrate, West Tripura, Agartala

received the charge sheet and vide his order dated 28.04.2012 took

cognizance of offence punishable under Sections 341 and 326 IPC

and made over the case to the court of the Judicial Magistrate First

Class (Court No.4) at Agartala for disposal according to law.

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[6] At the commencement of the trial the learned trial

judge framed charges of offence punishable under Sections 341 and

326 IPC which are as under:

"Firstly, that on 26.02.2012 at about 7.30 A.M infront of the shop of Sri Subhash Debnath of Ranir Bazar market under Ranir Bazar P/S you wrongfully restrained Sri Arun Debnath and that you thereby committed an offence punishable under Section 341 of IPC and within my cognizance.

Secondly, that on the aforesaid date after few minutes and same place you voluntarily caused grievous hurt to Sri Arun Debnath by means of 'Dao'(which is used as a cutting instrument) which is a dangerous weapon and that you thereby committed an offence punishable under Section 326 IPC and within my cognizance

And

I do hereby direct that you be tried on the said charges"

The accused pleaded not guilty to both the charges and

desired trial.

[7] During trial, prosecution examined as many as 13

witnesses and introduced 7 documents [Exbt. 1 to Exbt.7] inorder

to prove the charges against the accused petitioner. After the

recording of prosecution evidence was concluded, the incriminating

materials which appeared from the prosecution evidence were

stated to the accused during his examination under Section 313

Cr.P.C. Accused stated that when he had gone to Ranirbazar market

on the material day, he was caught by the local people on the basis

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of suspicion. He denied the charges and claimed that those charges

were foisted on him. He also declined to adduce any evidence on

his defence.

[8] Before I advert to the argument advanced by learned

counsel of the parties, it would be appropriate to have a glance at

the prosecution evidence. Informant who is the wife of the victim

has been examined as PW-1. She is a house wife of the age of 36

years. According to her, she herself did not witness the assault on

her husband. She rushed to Ranirbazar Primary Health Centre and

from there to GBP Hospital soon after she came to know that the

accused petitioner chopped her husband with a 'dao' in front of a

jewelry shop at Ranirbazar where her husband had gone in the

morning for buying vegetables. After visiting her injured husband

at GBP hospital, she got the FIR written by one Mintu Debnath

[PW-4] and lodged it at Ranirbazar police station in the afternoon.

She also stated at the trial that after 5/6 days, her husband was

taken to Kolkata for better treatment.

Accused subjected her to a lengthy cross-examination

in order to demolish her examination in chief. In her cross

examination she stated that she did not have any prior acquaintance

with accused Ratan Sarkar who came from another place. It was

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suggested to her by the counsel of the accused that her husband

received the injury by falling on the floor of the market shed which

was denied by the PW. She also denied that she made a false

statement before the court.

[9] PW-2, who was present in Ranirbazar market at the

material time supported the assault on the husband of the informant

by saying that following hue and cry, he appeared at the spot in

front of the jewelry shop of Pradip Debnath and found informant's

husband who received bleeding injuries on his head and both hands

and a finger in one of his hands was found almost detached. The

PW immediately transported the victim to Ranirbazar PHC. Though

he did not name the assailant in his deposition, accused tried to

impeach his examination in chief by suggesting in cross that he did

not witness the occurrence and the victim received hurt by falling

on the floor of the market shed which were denied by the PW.

[10] Sri Subhash Debnath who has been examined as PW-3

is one of the most vital witnesses of this case because he was an

employee in the jewelry shop of Padip Debnath and at the material

time on 26.02.2012 when informant's husband was assaulted in

front of the jewelry shop, he was present in the shop. For better

Crl.Rev.P.74/2017

appreciation of his evidence it would be appropriate to reproduce

his words as under:

"I work in the jewelry ship of Pradip Debnath at Ranirbazar market since last 16 years. On 26.02.2012 at around 7.30 a.m Arun Debnath came to my shop regarding certain rings which he gave order to us for making. I informed him to come after 2 days. He left and I became busy with the works of my shop. Suddenly I found while he was returning accused Ratan Sarkar started assaulting with dao for which he received injuries on the back of his head and he tried to prevent the accused by lifting his hand. In the meantime people of the market gathered and accused Ratan was detained by them. We informed the Police and handed over Ratan Sarkar to Daragababu. Arun Debnath was then taken to Hospital by the vegetable venders through an Ambulance. Witness identifies the accused amongst other 2 accused persons in the dock"

In cross examination the accused tried to discredit his

evidence by suggesting to him that he did not see accused Ratan

Sarkar assaulting the victim with 'Dao'. The said suggestion was

denied by the PW. The PW re-affirmed in his cross examination

that he was an employee in the jewelry shop of Pradip Debnath and

he was present in the shop at the time of occurrence. PW also stated

in cross examination that he did not have any prior acquaintance

with accused Ratan Sarkar.

[11] PW-4, Mintu Debnath, is the scribe of the ejahar. He

stated that following the statement of Smt. Gita Debnath[PW-1] he

scribed the ejahar which was later submitted by said Smt. Gita

Debnath at the police station. On his identification, the ejahar (FIR)

was marked as Exbt.1 during trial.

Crl.Rev.P.74/2017

In cross examination the accused tried to impeach his

evidence by extracting a statement from him that in the ejahar

[Exbt.1] there was no mention that it was scribed by the PW and

moreover the PW did not also give any certificate in the said ejahar

that after taking down the ejahar he read over the same to the

informant [PW-1] and informant signed it after admitting its

correctness. The PW, however, denied the suggestion of the

accused that he did not write it as per version of the informant.

[12] PW-5, Doctor Rajat Debbarma, was posted at AGMC

and GBP Hospital on 26.02.2012 when victim Arun Debnath [PW-

11] was brought to the hospital. The PW stated in his examination

in chief that he treated 02 injuries of PW 11 one of which was at his

right thumb and the other was 'V' shaped cut injury at the right

index finger. Injury at the right thumb was grievous and both

injuries were caused by sharp hard object. The third lacerated injury

on the occipital region which was treated at the surgery unit of the

hospital. Report furnished by the PW was taken into evidence and

marked as Exbt.2 during trial. The report indicates that the patient

was admitted in the said hospital on 26.02.2012 and he was

discharged from the hospital on 01.03.2012 with advice to attend

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the hospital for follow up treatment. There was no cross

examination of the medical witness [PW-5].

[13] PW-6 is the seizure witness in whose presence blood

stained soil was seized by police. It is not necessary to discuss his

evidence in detail. Same is the evidence of PW-7, Uttam Das, PW-

8, Narayan Bhattacharjee and PW9, Uttam Roy who are mere

seizure witnesses. They have no idea as to how the occurrence took

place.

[14] PW-10 is Sudip Karmakar, whose is heresay evidence.

While he was returning to his shop at Ranirbazar market from his

daughter's house on the material day, he came to know from others

that the accused gave a dao blow to PW-11, Arun Debnath. The

witness also identified the accused at the dock who was previously

known to him.

During cross-examination of the PW, numerous

suggestions were put to the witness on behalf of the accused to

demolish his examination in chief. It was suggested to him that he

did not hear about the assault of Arun Debnath and he had no

acquaintance with accused Ratan Das which was denied by the PW.

PW stated that victim was a palmist who had a chamber at

Ranirbazar motor stand.

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[15] PW-11 is the injured himself who has given a detailed

description of what happened to him on 26.02.2012. According to

the PW at around 7.30 a.m in the morning he went to the jewelry

shop of Pradip Debnath at Ranirbazar when Subhash Debnath, an

employee of the shop was dusting the show case. While the PW

was having parlance with said Subhash Debnath, accused attacked

him from his behind and gave 2 blows on his shoulder with a

'Dao'. When the PW turned to the accused, he raised the 'dao' to

give another blow on his face. The PW prevented the blow with

his hands. As a result, it struck his right hand and took off his

thumb. The witness had also shown his injuries to the court and the

impression of the court was recorded in the deposition of PW-11.

Therefore, it would be appropriate to reproduce his examination in

chief which is as under:

"The incident occurred on 26.02.2012 at around 7/7.30 a.m. I went to the jewelry shop of Pradip Debnath. I found his staff Subhash Debnath outside the shop and dusting it. While I was talking to Subhash Debnath suddenly somebody gave me two blows with a dao from my back side on my shoulder. The aid shop is beside the road which runs to the fish market at Ranirbazar market. I was standing outside the shop and beside the road. Getting the blows I immediately turned around and saw somebody was about to give me another blow over my face and I tried to prevent by my hands. The blow struck my hand right hand and took off my thumb. The blow caused also serious injury on my left hand (Witness showed his right hand without the thumb and also his left hand which clearly shows that his fingers has been disfigured). The distance between the said p.o and the PS is 50 meters. Hearing my cry Police personnel came and also people around detained the offender Ratan Sarkar.

Subsequently, he was handed over to the Police. I came to know later on the name of the offender to be Ratan Sarkar. I can identify him by

Crl.Rev.P.74/2017

face. I was taken to Ranirbazar hospital and thereafter I was admitted to the GBP Hospital for 2 &2/1 days. I was referred to Kolkata. I was taken to Chennai and was admitted at the Apollo Hospital for 22/22 days. Because of the said injuries I became incapable of doing any work with my 2 hands. Witness identifies the accused in the dock."

The accused put the witness to an incisive cross

examination to impeach his examination in chief. Through cross

examination of the PW, accused also tried to project a defence case.

It was suggested to the PW on behalf the accused that few days

prior to the occurrence, a woman came to the chamber of the PW at

Ranirbazar market where he used to carry on his occupation as a

palmist and when the lady came to his chamber, the PW tried to

outrage her modesty in the course of reading her fortune. The

accused could not relate the defence case to the alleged incidence of

assault of the PW because the identity of the lady was not disclosed

by the accused and whether the PW was assaulted for that reason is

not also suggested by the accused. This apart, the accused also

suggested to the witness that he received the injuries by a sudden

fall on the ground which was also denied by the PW. The accused

also tried to contradict the witness with reference to his previous

statements recorded by the IO under Section 161 Cr.P.C. and the

witness seems to have successfully qualified the test. The accused,

therefore, could not impeach the credibility of the witness to any

extent during cross examination.

Crl.Rev.P.74/2017

[16] PW-12 Dr. Debashish Gope was posted as a medical

officer at Ranirbazar PHC on the material day where injured Arun

Debnath was brought with a history of assault. The PW had seen

that his hands were wrapped with a piece of cloth. Soon after the

doctor removed the cloth blood started to come with a jet like force

because the artery/ veins were cut. Seeing his critical condition, the

PW referred him to AGMC and GBP Hospital. He recorded his

findings in Exbt.4.

Accused, while cross examining the witness, suggested

that the injured was not brought to hospital with cut injuries on his

palm. The said suggestion was denied by the witness. The PW,

however, admitted that he did not record in his report [Exbt.4] that

his hands were wrapped with cloth and when he removed the cloths

blood started flowing with jet like force.

[17] PW-13 is the IO of the case. During investigation, he

collected materials which supported the charges under Section 341

and 326 IPC. As a result of which, the IO [PW-13] submitted

charge sheet against the accused. In is cross examination the PW

stated that the occurrence took place at 8 O'clock in the morning.

But the accused was produced at the Police Station by police staff

Crl.Rev.P.74/2017

and members of public at 2.30 P.M. It was further stated by the PW

that the police station was situated at a distance of 300 meters.

In his cross-examination the PW stated that when the

accused was brought to the police station, no weapon of offence

was produced along with him. The PW admitted that the seizure list

whereby the weapon of offence was seized does not specify the

exact location from where it was seized. He further stated that he

arrived at the place of occurrence at 2.15 p.m. and seized the

weapon of offence at 2.20 p.m. It was also stated by him that he did

not send the weapon of offence to Forensic Science Laboratory for

forensic examination. The PW further stated that he did not submit

any document in support of the fact that accused also received

treatment in Kolkata.

[18] On appreciation of evidence, the trial court convicted

the accused under Sections 341 and 326 IPC and sentenced him as

above holding as under:

"34. The defence tried to discard the case of prosecution by stating that evidence adduced by prosecution is not sufficient to hold the accused convict as the evidence are not consistent and there are many infirmities in the story of prosecution case which creates a doubt about the authenticity of prosecution case and it is further contended that no such incident ever occurred and accused Ratan Sarkar was not at all involved with the alleged crime.

Defence also pointed out the identification of accused

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by witnesses before court especially by PW 1 is a serious infirmities of the prosecution case as this witness never met with accused but identified the accused in dock. Defence also expressed his doubt about the seizure of the weapon of offence on the ground that all the seizure witnesses are police constables only.

35. On and overall reading of evidence of prosecution I find that the infirmities of prosecution as pointed by defence are not so significant to shake the prosecution case and the available evidence as adduced by the prosecution are enough and undoubtedly put the prosecution case in strong footing .

36. In view of the above discussed evidence more particularly the corroborations found in the evidence of victim and eye witness and the medical evidence coupled with other oral and documentary evidence available with the record I am inclined to hold that the prosecution could established their case and has successfully proved the charges U/S 341/323 of IPC against the accused beyond all reasonable doubt and as such the accused Ratan Sarkar is convicted U.S 341/326 of IPC.

37. Now, I have to decide whether the benefit of Probation of Offender's Act can be extended to the convict Ratan Sarkar. Considering the entire facts and circumstances of the case at hand where one person in a brought day light committed the crime, I am of the opinion that such act of a person cannot be pardon by allowing him the benefit of Probation of Offenders Act which undoubtedly will spread a bad message to the society and will give encouragement to the other people to commit such crime . Therefore I am not inclined to extend the benefit of the Probation of Offenders Act to the accused. Let the convict be heard on quantum of sentence."

[19] In the appeal, the Addl. Sessions Judge, West Tripura,

Agartala(Court No.2) affirmed the conviction and sentence

awarded by the trial court holding as under:

Crl.Rev.P.74/2017

"23. On scrutiny of the evidence of the witnesses so far examined on behalf of the prosecution specially Pws-3, 5, 11 and 12, it is well established that PW-11 was attacked by the convict-appellant Ratan Sarkar at Ranirbazar market opposite to the jewelery shop of Pradip Debnath and the incident was witnessed by PW-3 from the jewelery shop of Pradip Debnath. PW-3 and other people present in the market appeared there and detained the convict-appellant Ratan Sarkar and handed over the him to the police. It is also well established that PW-11 received severe bleeding injuries over his head and in his both hands and from the evidence of the medical officer's i.e. PW- 5 and PW-12, it is also well established that PW-11 sustained grievous injury. Though there are some infirmities found in the evidence of other witnesses inclusive of the evidence of PW-13,the investigating officer, this court finds that the evidence of Pws-3, 5, 11 and 12 are reliable and complementary to each other and defence fails to shake the credibility of the witness and accordingly, this court finds that Learned Trial Court rightly reached in the conclusion that charge under Sections 341/326 of IPC has been well established against the convict-appellant Ratan Sarkar. However, having gone through the impugned judgment passed by the Ld. Trial Court and the evidence of the prosecution witnesses, this court finds that the Ld. Trial Court has given cogent reasons in the judgment passed by the learned Trial court while finding the appellant guilty and thereby, I find there is no infirmity in the conclusion arrived by the learned trial Court and accordingly, there is no need to interfere with the impugned judgment passed by the learned Trial Court and the appeal filed by the accused/ appellant is liable to be dismissed.

24. Accordingly, the appeal is dismissed on contest in the light of the aforesaid observation and the judgment passed by the Ld. Trial Court convicting the appellant is hereby confirmed for the offence punishable under section 341/326 of the Indian Penal Code."

[20] Counsel appearing for the petitioner submits that the

judgment of the trial court and that of the appellate court are wholly

erroneous and liable to be set aside. Mr. S.Lodh, learned counsel

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appearing for the petitioner has emphasized mainly on the

following points in the course of his arguments:

i) The courts below did not take into consideration the discrepancies appearing in the hand sketch map drawn by the IO and the oral statement of the witness with regard to the exact place of occurrence.

ii) There were other employees in the jewelry shop of Pradip Debnath at the time of occurrence. Only one of the employees namely Subhash Debnath [PW-3] was examined whereas the other employees were held back. The courts below did not draw any adverse inference against the prosecution for withholding such material witnesses of the case.

iii) FIR was lodged at around 2.15 p.m whereas the occurrence took place at 8 O'clock in the morning, although the police station was only 300 meters away. The courts below did not take notice of this material defect in the prosecution case.

iv) The blood stained mud seized from the place of occurrence was not sent for forensic examination which suggests false implication of the accused.

v) Seizure list does not specify the location from where the weapon of offence was actually seized. No evidence was produced by the prosecution to relate the weapon of offence to the crime allegedly committed by the accused.

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[21] According to learned counsel there is no substantive

piece of evidence on the basis of which the guilt of the accused can

be said to have been established beyond reasonable shadow of

doubt and as such the accused deserves acquittal and the impugned

judgment is liable to be set aside.

[22] Mr. S.Ghosh, learned Addl. PP on the other hand

supported the impugned judgment and argued that the findings of

the courts below are based on consistent, corroborative and

trustworthy evidence of as many as 13 witnesses and there is no

reason to interfere with the concurrent findings of the courts below

with regard to the conviction and sentence of the accused petitioner.

Learned counsel, therefore, urges the court for maintaining the

conviction and sentence of the petitioner by dismissing the criminal

revision petition.

[23] In so far as the commission of offence punishable

under Section 341 IPC is concerned, 341 IPC provides punishment

for wrongful restraint. Wrongful restraint is defied under Section

339 IPC which reads as under:

"339.Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

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Exception --The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.

Illustration A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z."

[24] For commission of wrongful restraint a person shall be

punished with simple imprisonment for a term which may extend to

one month, or with fine which may extend to five hundred rupees,

or with both as provided under Section 341 IPC. In the given

context, there is no iota of evidence against the accused petitioner

that he ever intended to obstruct the path of the victim with a view

to prevent the course of his movements. He suddenly attacked the

victim clandestinely from his behind and fled after assaulting the

victim. Wrongful restraint is a distinct offence for which

punishment has been prescribed under Section 341 IPC. Unless

there is evidence substantiating the commission of the offence of

wrongful restraint, an offence under Section 326 IPC would not

necessarily attract the offence of wrongful restraint punishable

under Section 341 IPC in all cases. Since evidence available on

record does not support the charge of wrongful restraint against the

petitioner, his conviction under Section 341 IPC does not survive

and he is acquitted of the said charge of offence punishable under

Section 341 IPC.

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[25] With regard to his conviction under Section 326 IPC,

PW-5, Dr. Rajat Debbarma in his report [Exbt.2] has recorded that

when the victim [PW-11] was admitted in AGMC and GBP

Hospital on the date of occurrence, his right thumb was found

amputed at base and according to the PW the injury was caused by

sharp hard object. Injured victim [PW-11] had categorically stated

in his examination in chief that the dao blow given to him by the

accused took off his right thumb and the witness showed his right

hand to the trial judge during trial and the learned trial judge

recorded her observation in the following words:

"Witness showed his right hand without the thumb and also left hand which clearly shows that his fingers have been disfigured"

[26] Dr.Rajat Debbarma, PW-5 also noted in his injury

report [Exbt.2] that a 'V' shaped cut injury measuring 3.5cm x 1cm

x1/4 cm caused by a sharp hard object was also found by him on

the right index of the victim. The evidence of the victim [PW-11]

and the medical evidence of PW-5 read together establish the fact

that the right thumb of the victim [PW-11] was blown off as a result

of the said assault and he also received a deep cut 'V' shape injury

in his right index apart from receiving injuries on his occipital

region. Assault on the victim by the accused is also supported by

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PW-3, Subhash Debnath who is an eye witness to the occurrence.

The accused petitioner gave repeated dao blows on the victim [PW-

11] before his eyes. Evidence of Subhash Debnath has also

qualified the test of cross examination and there is no reason to

disbelieve his evidence. Evidence of other witnesses have also

given strong circumstantial support to the commission of the

offence by the petitioner.

[27] Section 326 IPC provides punishments for voluntarily

causing grievous hurt by dangerous weapon or means which reads

as under:

"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."

[28] Grievous hurt is defined under Section 320 IPC which

designate certain hurts provided under Section 320 IPC as

'grievous' which is as under:

"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--

(First) -- Emasculation.

(Secondly) --Permanent privation of the sight of either eye.

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(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."

[29] In the back drop of the aforesaid evidence and the

legal provisions, in my view, the injuries sustained by the victim

[PW-11] would fall within the ambit of clause 'fourthly' of Section

320 namely "Privation of any member or joint" as it has been

proved that the left thumb of the deceased was completely blown

off as a result of the attack on him with a sharp edged weapon

called 'dao' by the accused petitioner. The said injury also falls

within the ambit of the "Seventhly" clause of Section 320 IPC.

[30] In view of the evidence of the prosecution witnesses,

tested on the touchstone of their credibility and trustworthiness, this

court is inclined to hold that the prosecution succeeded in

establishing the charge of offence punishable under Section 326