Shri Dipankar Bhowmik vs The State Of Tripura
2021 Latest Caselaw 98 Tri

                         HIGH COURT OF TRIPURA
                               AGARTALA
                             Crl. Rev. P. 49 of 2019

1. Shri Dipankar Bhowmik,
   Son of Dhirendranath Bhowmik,

2. Shri Sushanta Bhowmik
   Son of Dhirendranath Bhowmik,

   Both are residents of
   Shal Tilla, P.S-Belonia,
   District-South Tripura

                                            ---- Revision-Petitioner(s)

                                    Versus


   The State of Tripura

                                                   ---- Respondent(s)

For Petitioner(s) : Mr. J. Bhattacharjee, Adv.

   For Respondent(s)                 : Mr. R. Datta, P.P.

   Date of hearing                   : 04.12.2020

   Date of pronouncement             : 03.02.2021

                                      Yes    No
   Whether fit for reporting :
                                             √


                                BEFORE

HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Judgment & Order

1. This criminal revision petition has been directed

against the judgment dated 14.06.2019 delivered by the

learned Sessions Judge, South Tripura, Belonia in case No.

Crl. Rev. P. 49 of 2019

Criminal Appeal 3 of 2018 affirming the judgment and order of

conviction and sentence dated 12.02.2018 passed by the

learned Chief Judicial Magistrate, South Tripura, Belonia in case

No. PRC 428 of 2014 whereby the petitioners were convicted

and sentenced under sections 325 & 323 read with section 34

of the Indian Penal Code (IPC in short).

2. The brief facts of the case are as under:

Sri Himadri Bhowmik, S/o Umesh Ch. Bhowmik of

Shal Tilla, Belonia lodged a written FIR with the Officer in

Charge of Belonia police station on 30.08.2014 at 10.30 am

alleging that at about 07.30 am in the morning, the petitioners,

who were his relatives, started abusing him with filthy words.

When he raised protest, the petitioners attacked him and his

father Umesh Bhowmik with stick and spade etc and assaulted

them as a result of which both of them received bleeding

injuries. His father also received fracture injury in his right

hand. Following their hue and cry, the neighbours appeared and

rescued them from the assault. The informant and his father

were then taken to the District hospital at Belonia. The

informant was released after treatment on the same day but his

father was admitted in the hospital. His condition being critical,

he was referred to Tripura Sundari District hospital at Udaipur.

Crl. Rev. P. 49 of 2019

3. Based on his FIR, Belonia PS case No. 221 of 2014

under sections 325, 324 & 506 read with section 34 IPC was

registered and the case was taken up for investigation.

4. During investigation of the case, the investigating

officer examined the informant, his injured father and other

material witnesses of the case. He also recovered and seized

the weapons of offence and collected the injury reports of the

informant as well as of his father. Having concluded his

investigation, Sankar Saha, investigating officer [PW-12]

submitted charge sheet No. 167 of 2014 dated 30.09.2014

against the petitioners namely Dipankar Bhowmik and his

brother Sushanta Bhowmik for having committed offence

punishable under sections 323, 325 and 506 read with section

34 IPC. The learned Chief Judicial Magistrate, South Tripura,

Belonia received the charge sheet and on perusal of the

prosecution papers placed before him, the learned Chief Judicial

Magistrate vide. his order dated 04.12.2014 had taken

cognizance of offence punishable under sections 325, 323, 506

read with section 34 IPC against the petitioner brothers.

5. Trial commenced with the framing of charges under

sections 325, 323 and 506 read with section 34 IPC against

petitioner namely Dipankar Bhowmik and his brother Sushanta

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Bhowmik. The charges framed by the learned trial court are as

under:

"FIRSTLY, that both you on 30.08.2014 at about 7.30 A.M at Shaltilla under Belonia Police Station in furtherance of your common intention voluntarily caused grievous hurt to Umesh Ch. Bhowmik, father of the informant Himandri Bhowmik and that both of you thereby committed an offence punishable Under Section 325 read with Section 34 of the Indian Penal Code and with the cognizance of this Court.

SECONDLY, that both of you on the same date, time and place in furtherance of your common intention voluntarily caused hurt to the informant Himadri Bhowmik and that both of you thereby committed an offence punishable Under Section 323 read with Section 34 of the Indian Penal Code and within the cognizance of this Court.

THIRDLY, that both of you on the same date, time and place in furtherance of your common intention committed criminal intimidation by threatening the informant and his father with dire consequences and that both of you thereby committed an offence punishable Under Section 506 read with Section 34 of the Indian Penal Code and within the cognizance of this Court.

AND I do hereby direct that both of you be tried on the said charge."

Both of the petitioners pleaded not guilty and

claimed to stand the trial.

Crl. Rev. P. 49 of 2019

6. During the trial of the case prosecution examined as

many as 12 (twelve) witnesses [PW-1 to PW-12]. The witnesses

so examined by prosecution include the informant [PW-1], his

mother Smt. Gouri Bhowmik [PW-2], neighbour Shri Gopal

Chakraborty [PW-3], Dr. Chandan Mallik [PW-4], the medical

officer, Dr. Tapash Majumder [PW-5], another medical officer,

Shri Umesh Bhowmik [PW-6], injured father of the informant,

Shri Dulal Datta [PW-7], a neighbour of the informant, Shri

Bimal Shome [PW-8], a next door neighbour of the informant,

Shri Timir Das [PW-9], neighbour of the informant, Shri Niladri

Bhowmik [PW-10], a neighbour of the informant, Shri Rahul

Sutradhar [PW-11], another neighbour of the informant and

S.I. Shri Sankar Saha [PW-12], investigating officer of the case.

Apart from adducing the ocular testimony of the prosecution

witnesses, some documents [Exbt.1 to Exbt.7] were also

introduced on behalf of the prosecution.

7. After the recording of evidence was over, the

learned trial Judge separately examined the 2 (two) accused

under section 313 of the Code of Criminal Procedure, 1973

(Cr.P.C. hereunder) and recorded their statements. Both of the

accused brothers gave same reply to the court. They pleaded

that they were implicated in a false and fabricated case. With

regard to the admission of the father of the informant in

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hospital the petitioners replied that father of the informant was

a heart patient and for his treatment he was admitted in

hospital.

8. The learned trial court heard the submissions of

learned counsel of the parties and after consideration of their

submissions and appreciation of evidence, convicted and

sentenced the petitioners for offence punishable under sections

325 and 323 read with section 34 IPC. For having committed

offence punishable under section 325 read with section 34 IPC

petitioners were sentenced to RI for 1 (one) year and fine of

Rs.2,000/- (Rupees two thousand) each with default stipulation

and for offence punishable under section 323 read with section

34 IPC, each of the convicts were sentenced to fine of

Rs.1,000/- (Rupees one thousand) with default stipulation.

In appeal, the learned Sessions Judge by the

impugned judgment affirmed the conviction and sentence

awarded by the learned trial court without modification.

9. Aggrieved with the impugned judgment delivered

by the learned Sessions Judge, South Tripura, Belonia the

convict petitioners preferred this criminal revision petition under

section 389 Cr.P.C. They had also filed an interim application

seeking suspension of their sentence and release on bail till

disposal of the instant criminal revision petition which was

Crl. Rev. P. 49 of 2019

allowed by this court vide. order dated 16.07.2019 in I.A 01 of

2019.

10. I have heard Mr. J. Bhattacharjee, learned advocate

appearing for the convict petitioners as well as Mr. R. Datta,

learned P.P representing the State respondent.

11. Appearing for the petitioners, Mr. J. Bhattacharjee,

learned counsel contends that the learned trial court did not

take into consideration the contradictions and infirmities

appearing in the evidence of the prosecution witnesses.

According to Mr. Bhattacharjee, learned counsel, the learned

Appellate court also overlooked such contradictions and

infirmities present in the prosecution evidence and as a result

the findings of both the courts below are erroneous and liable

to be set aside. It is further argued by Mr. Bhattacharjee,

learned counsel that the informant complained in his FIR that

the petitioners attacked him and his father with stick and spade

etc but the seizure list dated 01.09.2014 [Exbt.5/3] would show

that no such weapon of offence was seized from their

possession. Rather the seizure list dated 01.09.2014 [Exbt.5/3]

indicates that one spade and 3 (three) cubits long stick were

seized from the house of the informant. Since it is no case of

the prosecution that after committing assault they left the

weapon in the house of the informant, seizure of the stick and

Crl. Rev. P. 49 of 2019

spade from the house of the informant does not support the

prosecution case that these weapons were used by the

petitioners in assaulting the informant and his father. Further

submission of Mr. Bhattacharjee, learned counsel is that the

petitioners and the informant are close relatives and the

incident occurred due to certain disputes between the two

families. It is, therefore, submitted by Mr. Bhattacharjee,

learned counsel that imprisonment of the petitioners is likely to

further spoil the relationship between them.

12. According to Mr. Bhattacharjee, learned counsel,

there is no criminal antecedent of any of the petitioners. Both

of them are graduates and their imprisonment will spoil their

future. Mr. Bhattacharjee, learned counsel, therefore urges the

court for setting aside their conviction and sentence or to

extend the benefit of the Probation of Offenders Act, 1958 to

them. According to Mr. Bhattacharjee, learned counsel

appearing for the petitioners, this High Court in similar cases

extended the benefit of Probation of Offenders Act, 1958 to the

convicts. In support of his contention, Mr. Bhattacharjee,

learned counsel relied on the decision of this High Court in

Mithun Debnath Vs. State of Tripura reported in (2014) 2 TLR

922 wherein the benefit of Probation of Offenders Act was

Crl. Rev. P. 49 of 2019

extended to the convict who was convicted and sentenced

under section 325 IPC.

13. Mr. R. Datta, learned P.P on the other hand submits

that there is no infirmity in the concurrent findings of the

learned courts below and therefore the impugned judgment of

the learned Sessions Judge does not call for any interference in

this criminal revision petition.

14. It is gathered from the evidence led by the

prosecution that the petitioners are the sons of the elder

brother of the injured namely Umesh Bhowmik and as such

both convicts are cousin brothers of the informant and they live

in the adjoining houses.

15. The informant Shri Himadri Bhowmik [PW-1] stated

during the trial that at the time of occurrence he was reading in

his room. At that time the petitioners were quarrelling between

themselves in their house. Informant's father being their uncle

and a senior member of the family intervened to stop them

from quarrelling. Both of the petitioners then started abusing

the father of the informant with filthy language. During an

altercation with him, petitioner Dipankar Bhowmik assaulted his

father with a stick. As a result he received injuries and

collapsed on earth. When the PW appeared at the spot another

petitioner namely Sushanta Bhowmik struck him with a spade

Crl. Rev. P. 49 of 2019

as a result of which he received bleeding injuries. Following

their cry, people from the neighbourhood appeared and took

them to hospital.

In cross examination, the PW admitted that one of

the petitioner namely Sushanta Bhowmik had mental disorder

and as such he was undergoing treatment under Dr. A.K. Nath.

The PW also admitted in his cross examination that one of the

petitioners namely Dipankar Bhowmik had already filed a

criminal case against him and his father in which the PW and

his father were enlarged on bail from court.

16. Smt. Gouri Bhowmik [PW-2] who is the mother of

the informant also supported the prosecution case. The PW

stated at the trial that at the time of occurrence she was

cooking in the kitchen. When she came out following the hue

and cry, the petitioners were seen assaulting her husband and

son.

In her cross examination the PW stated that convict

petitioner Sushanta Bhowmik had been suffering from mental

illness. She also admitted that her son and husband are

accused in a case lodged by petitioner Dipankar Bhowmik.

17. Shri Gopal Chakraborty [PW-3] came to the house

of the informant after knowing about the quarrel which had

taken place in their house in the morning on 30.08.2014. He

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witnessed the injuries in the hand of the informant and in the

scalp of his father.

The PW in his cross examination admitted that he

did not have good relationship with any of the petitioners. He,

however, denied that he gave false evidence in support of the

informant due to his enmity with the petitioners.

18. Dr. Chandan Mallik [PW-4] who was the medical

officer posted in Tripura Sundari District hospital at Udaipur

examined the injured father of the informant in the hospital

when the injured was brought there on 30.08.2014 and found

the following injuries:

"1. Lacerated wound over forehead 1cm x ½ cm,

2. Lacerated wound over left parietal area of scalp 1cm x ½ cm,

3. Tender swelling on left hand with fracture neck of second meta carpal,

4. Abrasion over right forearm. X-Ray was done."

According to the PW, the injuries were fresh in

nature. Among the injuries, the third injury was grievous in

nature and caused by a blunt object whereas the other injuries

were simple in nature.

In his cross examination he admitted that such

injuries could have been caused by falling on hard substance.

Crl. Rev. P. 49 of 2019

19. Dr. Tapash Majumder [PW-5] was also a medical

officer posted at Belonia hospital and attended the informant

and his father Umesh Bhowmik when they were first brought to

Belonia hospital from the place of occurrence and on

examination of the injured persons, the PW found the injuries in

the parsons of both of them. With regard to the injuries found

by him, the PW in his deposition has asserted as follows:

"..............On examination of Umesh Bhowmik I found the following injury:

1. Bleeding of nose,

2. Laceration wound 3cm x 1cm x 0.5 cm on parietal area of head,

3. Lacerated wound 2cm x 1cm x 0.5 cm over left forehead,

4. Lacerated wound 3cm x 1 cm x 1 cm on right hand,

5. Pain and swelling on left index finger,

6. Pain of right shoulder and left hip .............On examination of Himadri Bhowmik the following injuries was found:

1. Lacerated wound 6 cm x 2cm x 0.5 cm on left hand close to left thumb,

2. Right shoulder pain,

3. Abrasion 1 cm x 1 cm on right hand,

4. Swelling 2.5 cm in diameter over right side of head."

Like PW-4, PW-5 also stated in cross examination

that such injuries could have been caused by falling on hard

substance.

Crl. Rev. P. 49 of 2019

20. Shri Umesh Bhowmik [PW-6] is the father of the

informant who was assaulted by the petitioners. In his

examination in chief, the PW has admitted that both the

petitioners are his nephew. According to the PW he was

cleaning the courtyard of his house at the material time when

he heard the petitioner brothers quarrelling between

themselves. When he wanted to know as to why they were

quarrelling, petitioner Dipankar Bhowmik had abused the PW

with filthy words. When the PW was going to meet petitioners'

father to raise a protest, both of the petitioners attacked him

with stick and spade and injured him. Then the villagers came

and rescued him.

In his cross examination, the PW stated that he has

been working as an advocate's clerk for last 10/12 years. He

has also stated in cross that the father of the petitioners is his

own brother who has retired as a Government servant.

According to the PW, he lives on the same plot of land with the

petitioners without any boundary fencing. The PW has denied to

have any land dispute with the petitioners. He has, however,

admitted that his nephew Dipankar has filed a case against him

and his son which has been registered as PRC 430 of 2014.

21. Shri Dulal Datta [PW-7], a neighbour of the

informant as well as of the petitioners had also gone to the

Crl. Rev. P. 49 of 2019

house of the informant at the material time. When he had gone

there he heard an altercation between petitioner Dipankar

Bhowmik and his uncle Umesh Bhowmik. The PW then left the

place. Later he came to know that Umesh Bhowmik was

assaulted by Dipankar Bhowmik.

22. Shri Bimal Shome [PW-8] also met the informant

and his injured father after the occurrence and accompanied

them to Belonia hospital. The PW categorically stated in his

examination in chief that the parties always used to quarrel in

their house.

23. Shri Timir Das [PW-9], a neighbour of the informant

was returning home from the market at material time when he

saw injured Umesh Bhowmik being taken to hospital.

24. Shri Niladri Bhowmik [PW-10] is the younger

brother of the informant and son of injured Umesh Bhowmik.

The PW did not witness the occurrence. He came to know from

his injured father that the petitioners assaulted his father and

caused his injuries.

In his cross examination the PW admitted that

petitioner Dipankar Bhowmik filed a case against his father and

brother.

Crl. Rev. P. 49 of 2019

25. Shri Rahul Sutradhar [PW-11], a neighbour of the

informant accompanied the injured to hospital and thereafter

he scribed the FIR as per dictation of the informant.

26. Shri Sankar Saha [PW-12] is the investigating

officer of the case who has stated in his examination in chief

that a prima facie case having been established against the FIR

named accused persons, he submitted charge sheet against

them.

In his cross examination the PW denied that he

submitted the charge sheet without proper investigation.

27. From the evidence on record it has surfaced that

one of the petitioners has been suffering from mental disorder

and he is undergoing treatment under a psychiatrist. However,

during trial of the case defence did not raise the plea of his

mental illness. It is also gathered from the evidence that the

informant and his father live in the same house with the

petitioners because they have a common ancestor. The father

of the petitioners and the father of the informant are full

blooded brothers. It is also evident that there is a long standing

dispute between the parties and as a result of such dispute

Dipankar Bhowmik who is one of the petitioners lodged a case

against his uncle Umesh Bhowmik [PW-6] and his informant

son which is still pending in court. PW-2, mother of the

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informant has admitted in her cross examination that they are

not on good terms with the petitioners. PW-8 categorically

stated in his examination in chief that every now and then the

parties used to quarrel with each other. Even prior to the

occurrence the injured father of the informant was heard

quarrelling with the petitioners. Initially the petitioner brothers

were quarrelling between themselves. When the injured [PW-6]

intervened, the agitated petitioner started altercation with him

[PW-6] which resulted in the fight between them.

28. The facts and circumstances stated above show that

it was not a premeditated act on the part of the petitioners. An

altercation between the parties resulted in the fight between

them and in consequence, father of the informant was injured.

However, in view of the evidence available on record, conviction

of the petitioners cannot be set aside because there is enough

evidence against them in support of the charge of offence

punishable under sections 323 & 325 IPC and apparently there

is no reason to interfere with the concurrent findings of the

courts below with regard to conviction of the petitioners. The

conviction of the petitioners for having committed offence

punishable under sections 325 & 323 IPC is therefore upheld.

Crl. Rev. P. 49 of 2019

29. But the reasons furnished by the learned trial court

for not providing the benefit of Probation of Offenders Act, 1958

to the petitioners are not acceptable.

30. This High Court in Mithun Debnath Vs. 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:

"22. The modern trend of penology is towards reformation of criminals, especially those who are at the younger age. First time offenders must normally be given a chance to improve themselves. Sending first time offenders to jail in offences where they can get benefit of the Probation of Offenders Act or section 360 of the Cr.PC is against the spirit of these provisions. 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

Crl. Rev. P. 49 of 2019

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."

31. As stated above the parties are close relatives who

live in the adjoining houses. Both of the petitioners are young

and educated persons who belong to the poor strata of the

society. Admittedly one of the petitioners is suffering from

serious ailment. The occurrence evidently took place at the spur

of the moment without any premeditation. Moreover, they are

first time offenders and they do not have past criminal records.

Situated thus, the petitioners should be given a chance to

improve themselves and restore their relationship with the

victims who are their close relatives by providing the benefit of

Probation of Offenders Act, 1958 to them.

Crl. Rev. P. 49 of 2019

32. Section 4 of the Probation of Offenders Act, 1958

which deals with matters pertaining to release of offenders on

probation of good conduct reads as under:

"4. Power of court to release certain offenders on probation of good conduct.--

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

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(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

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33. Keeping in view the object of the provisions of the

Probation of Offenders Act, 1958, the principles of law laid

down in the judgment 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 petitioners as a chance to improve themselves instead of

sending them to jail at once.

34. For the forgoing reasons, the two petitioners

namely, Dipankar Bhowmik and Sushanta Bhowmik are

released on probation in terms of Section 4 of the Probation of

Offenders Act, 1958. Each of the petitioners are directed to

appear before the trial Court within one month from today and

execute a bond of Rs.20,000/- (Rupees twenty thousand) each

with one surety of like amount to the satisfaction of the learned

trial court for a period of one year on condition that during the

period of probation they would maintain peace and be of good

behaviour. In addition, the petitioners be placed under the

supervision of the jurisdictional Probation Officer for the said

period of one year for appropriate counselling. After the

petitioners appear before the learned trial Judge, the learned

trial Judge shall appoint a day for appearance of the Probation

Officer for placing the petitioners under the supervision of

Probation officer in terms of sub-sections (3), (4) and (5) of

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Section 4 of the Probation of Offenders Act, 1958. The

Probation Officer shall thereafter submit periodical report in the

trial Court about the conduct of the petitioners during the

period of their probation.

35. 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 victims

were in hospital for treatment of their injuries. Therefore, the

victims should be compensated for the loss suffered by them at

the hands of the petitioners. Accordingly, each of the

petitioners are directed to pay compensation of Rs.2,000/-

(Rupees two thousand) which shall be equally distributed

between the victims [PW-1 & PW-6] at the rate of Rs.2,000/-

(Rupees two thousand) per head. The petitioners will deposit

such amount of compensation at the trial Court within a month

from today and the learned trial Judge shall issue notice to the

victims to appear and receive the compensation from Court.

36. The appeal is disposed of accordingly. Communicate

the order to the learned trial court immediately.

Send back the LCR.

JUDGE

Rudradeep

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