High Court Of Tripura vs The State Of Tripura
2021 Latest Caselaw 535 Tri

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                          HIGH COURT OF TRIPURA
                                AGARTALA
                              Crl. Rev. P No.01/2020
SRI SWADESH CHOWDHURY
S/o Late Kartik Chowdhury, resident of
Tulabagan, P/O and P/S. Sidhai, District-West
Tripura.
                                                           ............... Petitioner(s).

                                             Versus
THE STATE OF TRIPURA
represented by the Ld. PP, High Court of Tripura,
Agartala
                                              ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. S. Lodh, Advocate.

For Respondent(s) : Mr. S. Ghosh, Addl. Public Prosecutor.

       Date of hearing                   :    19th March, 2021.

       Date of Judgment & Order :             23rd April, 2021.

       Whether fit for reporting         :    NO.


                             JUDGMENT AND ORDER

[1]            This       criminal   revision   petition   is   directed   against   the

judgment dated 19.11.2019 delivered by the Sessions Judge, West

Tripura, Agartala in Criminal Appeal No.36 of 2016 affirming the

judgment and order of conviction and sentence dated 16.03.2016 passed

by the Judicial Magistrate, First Class (Court No.1), Agartala in case No.

PRC 80/2013 whereby the petitioner was found guilty of offence

punishable under Sections 341 and 325 IPC and he was convicted to SI

for one month and fine of Rs.500/- under Section 341 IPC and S.I for one

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year and fine of Rs.4,000/- with default stipulation for having committed

offence punishable under Section 325 IPC.

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

was lodged by Smt. Chabi Das(PW-1), wife of Narayan Das of Sidhai at

Sidhai police station on 28.01.2013 alleging, inter allia, that on

26.01.2013 at about 7 „O‟ clock in the night the petitioner had a hot

altercation with her husband at Office Tilla Bazar. At the intervention of

local people the petitioner left the place but when her husband arrived

near the house of the petitioner for returning home, petitioner attacked

him with a wooden stick (lathi) and gave a blow on his head. Having

received bleeding injury, her husband collapsed on earth. Following his

cry, the neighbouring people appeared and shifted her husband to

Mohanpur hospital from where he was referred to AGMC and GBP Hospital

at Agartala. She stated in her FIR that filing of the FIR was delayed

because she was busy in arranging the treatment of her husband.

[3] Based on her FIR, Sidhai PS case No.8 of 2013 under Sections

341 and 325, IPC was registered and the case was endorsed to S.I,

Dhanesh Ch. Das(PW-8) for investigation.

[4] During his investigation of the case, the I.O had investigated

the crime scene and he had drawn up a hand sketch map of the entire

crime scene. The material locations at the crime scene was indicated by

him by preparing a separate index (Exbt.5). He also collected the injury

report (Exbt.2) of the victim from G.B.P. Hospital. The material witnesses

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acquainted with the facts of the case were also examined by him and

their statements were recorded under Section 161 Cr. P. C. Having thus

completed the investigation of the case, the investigating officer

submitted charge sheet No.48 of 2013 dated 31.07.2013 under Sections

341 and 325 IPC against accused Swadesh Chowdhury in the Court of the

Chief Judicial magistrate at Agartala.

[5] The Chief Judicial Magistrate having perused the charge sheet

and supporting police papers had taken cognizance of offence punishable

under Sections 341 and 325 IPC against the accused vide his order

dated 27.09.2013 and made over the case to the Judicial Magistrate of

the First Class (Court No.1) where the case was tried.

[6] The trial commenced with the framing of charges against the

accused which reads as under:

"That on 26.01.2013 at about 2030 hours at Tulabagan PS Sidhai, West Tripura you wrongfully restrained the husband of the complainant namely Narayan Sukladas and that you thereby committed offence punishable u/s 341 of the Indian Penal Code and within the cognizance of this court.

Secondly that on or about 26.01.2013 at about 2030 hours at Tulabagan PS Sidhai, West Tripura you voluntarily caused grievous hurt to the husband of the complainant namely Narayan Sukladas and that you thereby committed offence punishable u/s 325 of the Indian Penal Code and within the cognizance of this court.

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

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Accused pleaded not guilty to the said charges and desired to

stand the trial.

[7] In the course of trial, prosecution examined as many as eight

PWs (PW-1 to PW-8) including the complainant wife of the victim (PW-1),

Medical Officer (PW-6) and the Investigating Officer (PW-8). Apart from

adducing the oral evidence of the prosecution witnesses, five documents

were introduced on behalf the prosecution which were admitted into

evidence and marked as Exbt.1 to Exbt.5/1.

[8] At the conclusion of prosecution evidence, accused was

examined under Section 313 Cr. P.C. In reply, he pleaded innocence and

claimed that the charges were foisted on him. He also declined to adduce

any evidence on his defence.

[9] On appreciation of evidence, the trial Court returned the

aforesaid findings holding the accused guilty of having committed offence

punishable under Sections 341 and 325 IPC for which sentence aforesaid

was imposed on him. Aggrieved thereby, the accused convict assailed the

said judgment of the trial Court in appeal in the Court of Sessions Judge.

The learned Sessions Judge by the impugned judgment affirmed the

judgment of the trial court which has been challenged before this Court

by means of filing this criminal revision petition.

[10] Counsel appearing for the petitioner has taken this Court to

the evidence recorded at the trial. Informant, Smti Chabi Das (PW-1)

supported her FIR statement at the trial by saying that her husband and

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accused Swadesh Choudhury had a hot altercation between them prior to

the assault of her husband. The accused then attacked her husband with

a lathi when her husband reached near the house of the accused while

returning home. Consequently, her husband received bleeding injury in

his head. It has been stated by the informant that at the time of

occurrence she was in her house which is adjacent to the house of the

petitioner. Following the cry of her husband she rushed to the spot and

found her husband in critical condition from where he was first taken to

Mohanpur hospital and then to G.B.P. Hospital at Agartala. About 2(two)

days delay in lodging the FIR, she explained that her husband had to be

shifted to Kolkata by air for better treatment and she was very busy in

arranging the treatment of her husband which caused delay in lodging the

FIR. She was cross examined on behalf of the accused. The accused try

to project a defence case in the cross-examination of the PW by

suggesting to the PW that her husband was abusing some women of the

locality with filthy words in intoxicated condition at the time of

occurrence. Though the PW admitted that her husband used to consume

alcohol occasionally, but according to the PW, he was not drunk at the

time of occurrence.

[11] PW-2, Tutan Das is a neighbour of both the victim and the

accused. At the time of occurrence he was inside his home. Following the

cry of the injured he appeared at the spot and saw the injured husband of

PW-1 lying there with bleeding injury in his head. He also found accused

Swadesh Choudhury at the spot. It was stated by the PW that from there

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he along with others had taken the injured to Mohanpur hospital from

where he was shifted to GBP hospital at Agartala.

In his cross-examination he admitted that the injured was his

cousin brother. He also stated that he was not aware as to whether a hot

altercation between the victim and his assailant preceded to the assault

of the victim.

[12] PW-3, Kishore Sarkar did not also witness the occurrence

taking place. He was informed by his neighbour Tutan Das over telephone

that Narayan Das was assaulted by accused Swadesh Choudhury.

Immediately, he arrived at the place of occurrence from where he had

transported Narayan Das to Mohanpur hospital in his car and thereafter to

G B P Hospital at Agartala. The PW came to know from Tutan Das that

said Narayan Das was assaulted by accused Swadesh Choudhury.

[13] PW-4, Smt. Dipali Debnath is also a neighbour of both the

victim and the accused petitioner. She is no eye witness to the

occurrence. She heard from others that accused Swadesh Choudhury

assaulted Narayan Das following a hot altercation between them. At the

instance of the prosecution lawyer, the witness was declared hostile and

she was cross examined by the prosecution lawyer. Nothing could be

extracted from her in favour of the prosecution through such cross

examination by the Assistant Public Prosecutor.

[14] PW-5, is the most significant witness of this case. His is victim

Narayan Ch. Sukla Das who stated in his examination in chief that at the

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time of occurrence at about 8.30 p.m on 26.01.2013 he was returning

home from Tulabagan Bazar. As soon as he reached in front of the house

of the petitioner, the petitioner hit the PW on his head with a lathi. As a

result of which he collapsed on earth and lost consciousness. He further

stated that following his cry, people from the neighbourhood appeared

there. Seeing them accused petitioner fled with the lathi. His wife Chabi

and his neighbours Manik Pal and Tutan Das had taken him to Mohanpur

PHC from where he was taken to GBP Hospital. He was in GBP hospital for

four days from there where he was taken to Peerless Hospital in Kolkata

by flight. It has been stated that his condition was so critical that he was

carried in a stretcher in the flight and a doctor had to accompany him.

According to the PW he had a hot altercation with the accused prior to the

occurrence and out of rage the accused caught him on his way back home

and assaulted him.

The PW was put to incisive cross examination on behalf of the

accused. In his cross examination he stated that prior to the occurrence

he had a good relationship with the accused. He also stated that after

being hit by the accused, he lost his consciousness and regained his

consciousness only at Mohanpur hospital. While he was in G.B.P Hospital,

he was fully conscious but his condition was unstable. Many suggestions

were put to the witness on behalf of the accused. It was suggested to him

that he had taken a loan from the accused but he did not pay back

Rs.1,47,000/- of the said loan to the accused. The suggestion was denied

by the PW. It was also suggested that to get rid of repayment of such

loan he had implicated the accused in a false case which was also denied

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by him. It was also suggested to the PW that the accused did not assault

him which also was denied by the PW.

[15] PW-6, Dr. Abhijit Dey, is a Medical Officer who examined the

injured (PW-5) in GB Hospital at Agartala on 27.01.2013 when the injured

was brought to the hospital and found a stitched wound measuring 4 cm

in length over left eyebrow of the injured which was simple in nature and

caused by hard and blunt object. It was stated by the PW that brain of

the injured was also scanned which showed that there was „acute

haemorrhagic contusion and surrounding edema in right temporal parietal

region.‟ The PW identified his report which was taken into evidence and

marked as Exbt.2. In his cross examination he stated that such injury

might have occurred otherwise than by physical assault.

[16] PW-7, Kanu Das was a resident of the same neighbourhood

with the accused and the victim. He heard about the occurrence from

others. According to the PW he heard that Narayan Das was assaulted by

accused Swadesh Choudhury. In his cross examination he denied the

suggestion of the accused that there was no hot altercation between the

accused and injured Narayan Das prior to the occurrence.

[17] PW-8 is the Investigating Officer who stated that the

materials collected by him during investigation supported the charges

against the accused. As a result, he submitted charge sheet against the

accused for having committed offence punishable under Sections 341 and

325 IPC.

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[18] The trial Court found the accused guilty and held as under:

"****To sum up the evidence of the PWs that the incident of assault occurred on 26/01/13 at about 8-8.30 pm in front of the house of the accused on the road and the Pw5 was assaulted by the accused and as per the Pw6, Pw5 was injured due to the assault by blunt object and the injury was fresh grievous and the PW5 was treated at the GB hospital from 26/01/13 to 30/01/13 and thereafter the Pw5 was treated at the Peerless hospital for 15 days on being referred by the GB hospital and the medical injury report (Exbt.2 revealed so).

It is proved that the accused person wrongfully restrained the PW5 on his way in front of the house of the accused while the PW5 was returning from Tulabagan market and the accused assaulted the PW5 by lathi on his head for which he sustained grievous injuries on his head and bodily suffered in total 20 days and was treated at the GB hospital for 05 days and for 15 days at Kolkata and while the PW5 was returning home, on the way on a road in front of the house of the accused and the accused assaulted the PW5. The medical officer (PW-6) clearly states that there was injury and the injury was fresh and grievous in nature (NCCT of brain revealed acute hemorrhagic contusion and surrounding edema in right temporal parietal region). In the instant case, grievous injuries are found in the head of the victim (PW5) and the injuries were inflicted with a blunt object and the PW5 stated that he was assaulted by lathi.

The accused caused hurt and the hurt caused was grievous and the accused intended or knew that he was likely to cause grievous hurt and this incident occurred following the hot altercation prior the incident.****"

[19] In appeal, learned Sessions Judge found no reason to

disbelieve the evidence of the prosecution witnesses particularly that of

the victim and his wife. Having pointed out also to the inconsistent

defence story, the appellate court affirmed the judgment of the learned

trial court upholding the conviction and sentence of the accused.

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[20] Counsel appearing for the petitioner has emphasised on the

following grounds in the course of hearing:

(i) The Courts below did not take into consideration the

discrepancies appearing in prosecution evidence on material

points.

(ii) Courts below did not also consider the fact that the

basic ingredients of Section 341 and 325 IPC were not

satisfied in the case.

(iii) The delay in lodging the FIR was not explained which

made the prosecution case doubtful.

(iv) Except the victim, no other witness saw the occurrence.

The Courts below decided the case on the basis of hearsay

evidence which is grossly erroneous and on such ground the

judgments are liable to be set aside.

(v) The place of occurrence which has been shown in the

hand sketch map drawn by the I.O is not the same place

where the incident took place according to the victim (PW-5).

This material fact was not considered by the Courts below.

It has been finally argued by learned counsel of the petitioner

that evidently there was a hot altercation between the accused and the

victim prior to the occurrence which supports the case of the petitioner

that he has been implicated in a false case by the victim out of

vengeance.

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[21] Learned Additional Public Prosecutor appearing for the

respondent on the other hand contends that the findings of the Courts

below are based on cogent and sound evidence and the petitioner has

failed to make out any ground on which this Court can interfere with the

concurrent findings of the Courts below. According to learned Additional

Public Prosecutor, it has been established at the trial that the petitioner

clandestinely attacked the victim (PW-5) causing serious bodily injury to

him for which the victim had to undergo prolonged treatment in various

hospitals in the State and outside the State which not only caused huge

financial loss to him, it also caused innumerable pain and sufferings to

the victim for no fault of him. Learned counsel therefore, urges the Court

to dismiss the petition.

[22] It may be recalled that the petitioner has been convicted and

sentenced under Sections 341 and 325 IPC. Section 325 IPC reads as

under:

"325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

[23] A plain reading of Section 325 IPC would show that the

following basic ingredients have to be satisfied to constitute an offence

punishable under Section 325 IPC:

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(i) It has to be proved that accused caused grievous hurt to the victim and

(ii) Such hurt was caused voluntarily, except in the case provided for by Section 335 IPC.

[24] The Medical evidence of PW-6 demonstrates that on

27.01.2013 victim was examined by him in AGMC and GBP Hospital at

Agartala at the casualty block of the hospital. The said Medical Officer

(PW-6) ascertained from the victim that he was physically assaulted on

the previous day. On his examination the Medical Officer found a stitched

wound on his left eyebrow which was 4 cm in length and such injury was

simple in nature which according to the PW was caused by hard, blunt

object. The injury report (Exbt.2) prepared by the doctor (PW-6) also

demonstrate that brain of the injured was scanned which showed the

following injury in his brain:

"acute haemorrhagic contusion and surrounding edema in right temporal parietal region".

In his testimony, the doctor (PW-6) stated that the brain

injury was grievous in nature which might have caused the death of the

injured. It was also stated by the witness that the injured who was

admitted in the hospital was later referred to SSKM hospital in Kolkata on

30.01.2013 for better management.

[25] Grievous hurt is defined in Section 320 IPC which reads as

under:

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

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               (First)          -- Emasculation.
               (Secondly)       -- Permanent privation of the sight of
                                  either eye.
               (Thirdly)        -- Permanent privation of the hearing of
                                   either ear,

               (Fourthly)       -- Privation of any member or joint.
               (Fifthly)        -- Destruction or permanent impairing of
                                  the powers of any member or joint.
               (Sixthly)        -- Permanent disfiguration of the head or
                                  face.

(Seventhly) -- Fracture or dislocation of a bone or tooth.

(Eighthly) -- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

[26] From the medical evidence it has been made abundantly clear

that the injury caused to the victim endangered his life for which he was

medically advised and referred to a hospital outside the State for better

management of the trauma suffered by him. The victim (PW-5)

categorically stated that the accused petitioner hit him with a hard

wooden object on his head and caused his injury. His evidence could not

be impeached by the petitioner in cross examination. In these

circumstances there is no reason to doubt the prosecution evidence that

the hurt caused to the victim (PW-5) endangered his life. Evidence also

supports the fact that for treatment the injured (PW-5) was in various

hospitals for more than 20 days and during those days he was unable to

pursue normal life. Therefore, such hurt falls within the purview of the

Eighthly clause of Section 320 IPC and make the same a grievous hurt

within the meaning of Section 320 IPC.

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[27] All the witnesses have stated in chorus that prior to the

occurrence, the accused petitioner and the victim had a hot altercation

between them and immediately thereafter the accused attacked the

victim in front of his house while he was returning home from market.

There is no doubt that such altercation must have acted as a sudden

provocation, but there is no evidence to suggest that it was a grave

provocation to attract the exception provided under Section 335 IPC.

Rather in the cross examination of the witnesses, the accused tried to

demolish the evidence that a hot altercation between the accused and the

victim preceded the occurrence.

[28] The evidence recorded at the trial would clearly show that the

accused with a clear intention of causing grievous hurt to the victim and

with a clear idea of the consequence of his act, attacked the victim with

a hard wooden stick and gave a violent blow on his head which resulted

in grievous injury in his head for which the victim had to undergo

treatment in various hospitals within the State and outside the State over

a long period of time. Both the Courts below have examined the evidence

in detail and after consideration of the relevant provision of law and the

arguments placed by learned counsel of the parties arrived at a logical

conclusion with regard to the guilt of the accused and convicted him for

having committed offence punishable under Sections 341 and 325 IPC for

voluntarily causing grievous hurt to the victim (PW-5) after wrongfully

restraining him. In these circumstances there is reason to interfere with

the conviction of the petitioner.

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[29] As regards sentence, trial Court viewed that the manner in

which the accused committed the offence would not justify his release on

Probation of Offenders Act. It was also viewed by the learned trial Court

that the accused was a matured man capable of realising the

consequence of his act and his release without adequate sentence would

send a wrong signal to the society. On such consideration, the trial Court

declined his release on Probation of Offenders Act and awarded the

aforesaid sentence to him. The learned Sessions Judge after detailed

examination and re-evaluation of entire evidence accepted the findings of

the trial Court and affirmed the judgment of the trial Court.

[30] The record would show that the petitioner was 50 years old at

the time of occurrence and quite mature in understanding whereas the

victim being 39 years old was much younger than the petitioner. The

facts of the case revealed that after an altercation took place between

them, the petitioner returned home and armed himself with a hard

wooden stick and started waiting for the victim. As soon as the victim

appeared in front of his house on his way back home, he had given

mighty blow on his head and in consequence of his act, the victim

received grievous hurt in his head. It is true that there is no past criminal

record of the accused. But considering the age of the victim and the

manner in which he committed the offence to his neighbour, the trial

Court was absolutely right in denying the benefit of the Probation of

Offenders Act to the accused. As stated, he has been sentenced to RI for

one year for having committed offence punishable under Section 325 and

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fine of Rs.4000/- with default stipulation and he has been sentenced to

S.I for one month and fine of Rs.500/- with default stipulation for offence

punishable under Section 341 IPC.

This Court is of the view that the said sentence is justified and

there is no reason to interfere with the sentence awarded to the

petitioner.

[31] Resultantly, the petition stands dismissed. Convict petitioner

is directed to surrender at the trial Court within 02 months to suffer the

sentence failing which the trial Court shall take required steps in

accordance with law to make him suffer the sentence.

Pending application(s), if any, shall also stand disposed of.

Send down the LCR immediately.

JUDGE

Dipankar

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