Tripura High Court
Sri Dinesh Chandra Shib vs The State Of Tripura on 30 June, 2021
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P No.28/2018
1. Sri Dinesh Chandra Shib ,
Son of late Harendra Nath Shib.
2. Shri Paresh Chandra Shib,
Son of late Harendra Nath Shib.
3. Sri Diptanu Shib,
Son of Sri Dinesh Chandra Shib.
4. Sri Dipen Shib,
Son of Sri Dinesh Chandra Shib.
All resident of West Bank of Jagganath Dighi,
P.S. R. K. pur, District-Gomati, Tripura.
............... Accused Petitioner(s).
Versus
THE STATE OF TRIPURA
Represented by PP, High Court of Tripura, Agartala.
............... Respondent(s).
BEFORE
THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
For Petitioner(s) : Mr. B.N. Majumder, Sr. Advocate.
Mr. R. Saha, Advocate.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
Date of hearing : 3rd March, 2021.
Date of Judgment & Order : 30th June, 2021
Whether fit for reporting : NO.
JUDGMENT AND ORDER
[1] By means of filing this criminal revision petition, petitioners
have challenged the judgment dated 31.05.2018 passed by the learned
Sessions Judge, Gomati Judicial District, Udaipur in case No. Criminal
Appeal 25(2) of 2016 whereby the learned Sessions Judge affirmed the
judgment and order of conviction of the petitioners under Section 323
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read with Section 34 IPC passed by the Chief Judicial Magistrate, Gomati
Judicial District, Udaipur in case No. PRC (SP) 98 of 2015 while reducing
the period of probation of the petitioners from two years to one year.
[2] Factual background of the case is as under:
Sri Jatan Shib of Radhakishorepur, Udaipur in Gomoti Judicial
District lodged a written FIR with the Officer-in-charge of
Radhakishorepur police station at Udaipur alleging, inter alia, that he had
a land dispute with the petitioners for which a civil case was pending in
the Court of the Civil Judge (Sr. Division) at Udaipur in Gomati Judicial
District. The petitioners were constantly pursuing the informant to
withdraw the case. The petitioners told him that unless the case was
withdrawn, the informant would be implicated in criminal cases and
ultimately he would be killed. On 24.05.2015 at about 10 'O' clock in the
night, all the petitioners together abused the informant with filthy words.
On the following day at about 8.45 'O' clock in the morning the
petitioners attacked him with a dao (sharp edge weapon) and assaulted
him with fist blows. They also kicked on his body by grounding him. As a
result, the informant received injury and pain in his arms, legs, waist and
head. On the same day he lodged the FIR against the petitioners.
[3] Based on the said FIR R.K.Pur P.S. Case No. RKP 063 under
Sections 341 and 323 read with Section 34 IPC was registered against the
petitioners and the case was endorsed to Biswajit Das, Sub-Inspector of
Police of R.K.Pur police station (PW-8) for investigation.
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[4] In the course of investigation the crime scene was visited by
the investigating officer and a hand sketch map of the crime scene
indicating the material locations in a separate index was drawn by the
Investigating Officer. The material witnesses including the informant (PW-
1) were examined and their police statements under Section 161 Cr. P.C
were recorded by the I.O. Sufficient evidence supporting the charges
having been collected, the I.O submitted Challan No.54 of 2015 dated
31.05.2015 against the petitioners for trial of the case on the charges of
offence punishable under Section 341 and 323 read with Section 34 IPC.
[5] Having taken cognizance of offence, the trial Court
summoned the petitioners. On their appearance before the Court the
substance of accusation was read over and explained to the petitioners in
terms of Section 251 Cr. P.C which is as under:
"The accusation brought against all of you by the
prosecution is that on 25.4.15 at about 8.45 hours
when the complainant Jatan Shiv was proceeding from
his home by riding his motor bike bearing TR03-9866
and reached near your house at west bank of Jagganath
dighi at that time all of you in furtherance of your
common intention wrongfully restrained the complainant
and assaulted him by fist, blows and kicks and at that
then hearing his hue and cry his elder brother Tapan
Shiv and his mother Ashalata Shiv and other family
members came to his rescue at that time you also
assaulted the brother of the complainant by a bamboo
stick and threatened him as his family members with
dire consequences. And by doing such acts you have
committed the offence punishable u/ss. 341/323/506
read with Section 34 of IPC and within cognizance of this
Court"
The petitioners pleaded not guilty to the charge and desired
to stand the trial.
[6] During trial, prosecution examined as many as 8(eight)
witnesses including the informant and Investigating Officer and exhibited
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as many as 5(five) documents to establish the charges against the
petitioners. Among the witnesses examined by the prosecution, PW-1 is
the informant, PW-2 Smt. Sumitra Banik Shiv is the wife of the informant.
PW-3, Smt. Ashalata Shiv is the mother of the informant. PW-4 Sri Tapan
Shiv is the elder brother of the informant. PW-5 Smt. Anamika Shiv is the
wife of PW-4 and sister-in-law of the informant. PW-6 Md. Mamataj Uddin
Ahammed is a neighbor of the informant, PW-7 Dr. Tamal Sarkar is a
Medical Officer who examined the injured informant in the OPD of Tripura
Sundari Sub-Divisional Hospital at Udaipur and PW-8, Sri Biswahit Das is
the Investigating Officer.
[7] After the recording of the prosecution evidence was over, the
petitioners were examined under Section 313 Cr. P.C separately. In their
reply statements, they simply denied the charge and stated that they
were falsely implicated in the case.
[8] On appreciation of evidence, the trial Court found the
petitioners guilty and convicted them for having committed offence
punishable under Section 323 read with Section 34 IPC while acquitting
them of the charges of offence punishable under Sections 341 and 506
read with Section 34 IPC. Having found that no previous conviction was
proved against the petitioners and they had no criminal antecedents, the
trial Court released them on probation of good conduct and placed them
under the supervision of a Probation Officer for a period of two years
observing as under:
"In the result, I find, the prosecution failed to
prove its case of the offence punishable under Section
341/506/34 of IPC against the accused Sri Dinesh Ch.
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Shib, Sri Paresh Ch. Shib, Sri Dipen Shib and Sri Diptanu
Shib and, accordingly, the accused Sri Dinesh Ch. Shib,
Sri Paresh Ch. Shib, Sri Dipen Shib and Sri Diptanu Shib
are acquitted from the liability of the offence punishable
under Section 341/506/34 of IPC.
However, I find, the prosecution has been able to
prove its case against the accused Sri Dinesh Ch. Shib,
Sri Paresh Ch. Shib, Sri Dipen Shib and Sri Diptanu Shib
for the offence punishable under Sections 323/34 of IPC.
Accordingly, the accused Sri Dinesh Ch. Shib, Sri Paresh
Ch. Shib, Sri Dipen Shib and Sri Diptanu Shib are
convicted for offence punishable under Sections 323/34
of IPC.
Consideration Under Probation of Offender
Act, 1958 :-
Now, I am to consider whether the convict can be
given benefits under Probation of Offenders Act, 1958.
In this respect, learned counsel for the convicted
persons submitted that as the convict Sri Dinesh Ch.
Shib is aged about 62 years, convict Sri Paresh Ch. Shib
is aged about 58 years and the convict Sri Diptanu Shib
is aged only 26 years and there is no material that the
accused of this case are habitual offencers the convicted
persons are liable to get benefit under the Probation of
Offenders Act. Having considered the facts and
circumstances of this case and considering the fact that
the convict Sri Dinesh Ch. Shib is aged about 62 years,
convict Sri Paresh Ch. Shib is aged about 58 years and
the convict Sri Diptanu Shib is aged only 26 years and
there is no material that the convicts of this case are
habitual offencers and one time incident occurred and
the offence is punishable under Section 323 of IPC only,
I am of the view that the convicted persons are entitled
to get benefit of the Probation of Offenders Act, 1958
specially in the fact and circumstances where there is no
material with the case record about the previous bad
conduct of the convicts. Thus, in my view, the convicted
persons may be released on probation of good conduct
for two years and the same would meet the ends of
justice.
Thus, therefore, I find, in the present case, it is
expedient to and it will be proper to release the
convicted persons on probation of good conduct instead
of sentencing them at once to any punishment on their
execution of a bond, with one surety of Rs.10,000/-
(Rupees ten thousand) each, to appear and receive
sentence when called upon during the period of 2 (two)
years and in the mean time to keep the peace and and
be of good behaiviour.
Accordingly, the convicts namely Sri Dinesh Ch.
Shib, Sri Paresh Ch. Shib, Sri Dipen Shib and Sri Diptanu
Shib are directed to appear before this court on the next
date fixed for executing a bond in view of Section 4 of
the Probation of Offenders Act, 1958 and as stated
above."
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[9] The petitioners assailed the judgment in appeal in the Court
of the Sessions Judge at Udaipur in Gomati Judicial District. The learned
Sessions Judge re-assessed the entire evidence and by an elaborate
judgment upheld the conviction of the petitioners under Section 323 read
with Section 34 IPC. The learned Sessions Judge however, reduced the
period of their probation from two years to a period of one year directing
the petitioners to appear before the trial Court for execution of bond
before the Probation Officer in terms of Section 4 of the Probation of
Offenders Act, 1958 observing as under:
"10. In view of the above it is seen that there is clear
and convincing evidence of the complainant-cum-victim
and other Pws about the assault on the complainant and
Tapan Ch. Shib by the accused persons and there is
clear corroboration of their accounts by the medical
evidence of the doctor Pw 7 Dr. Tamal Sarkar who has
stated that on 25.04.2015 he examined Sri Jatan Shib
and Sri Tapan Shib at TSD Hospital, Udaipur and on
examination of Sri Jatan Shib he found mild bleeding
injury from the left ear and swelling of left parietal part
of the head of Jatan Shib and the injuries were simple in
nature. PW. 7 also deposed that on examination of
Tapan Ch. Shib he found mild bruise over his left knee
joint and the injury is simple in nature. The evidence of
PW. 7 is supported by Ext. 2 and Ext. 3, the injury
reports of Jatan Shib and Tapan Ch. Shib.
In cross-examination, which is galore, from the
side of the defence, no remarkable infirmity in the
evidence of the Pws could be elicited and as such there
is no reason to disbelieve their evidence so far as the
fact of assault on the complainant Jatan Shib and Tapan
Ch. Shib by the appellants is concerned.
11. In view of the above, and the clear and
convincing evidence of the victims and other Pws and
the corroboration of the oral evidence by the medical
evidence of PW 7 and the Pws having remained
unshaken in cross-examination on material particulars,
and the accused persons having acted jointly in a group,
I am of the view that the Learned Trial Court has rightly
convicted the appellants u/s 323/34 of the IPC and there
is no reason to interfere with the order of conviction
recorded by Learned Trial Court.
12. So far as the question of probation is concerned,
the learned trial court has considered the age and
antecedents of the convicts and the facts and
circumstances of the case and that there is no material
toshow that the accused persons are habitual offenders
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and further that they have been convicted of offence is
punishable under Section 323 of IPC only. Accordingly
he has concluded that they are entitled to get the
benefit under the Probation of Offenders Act. So, instead
of sentencing them at once to any punishment, he has
ordered that the convicted persons be released on
probation of good conduct for two years on furnishing
bond of Rs. 10,000/- with one surety each of like
amount.
13. Situated thus, I find no justification to take a
different view so as to disturb the findings of the trial
court regarding the release of the convicts on probation
of good conduct. However, considering all aspects and
hearing the learned counsels, I think the period of
probation may be reduced from two years to one year.
ORDER
14. In the result, the appeal is partly allowed.
The judgment dated 09.05.2016 passed by
learned Chief Judicial Magistrate, Gomati, Udaipur in
case No. PRC (SP) 98 of 2015 whereby he has convicted
the appellants namely Dinesh Chnadra Shib,
PareshChandra Shib, Dipen Shib and Diptanu Shib u/s
323/34 of IPC is hereby upheld.
The period of probation is reduced from two
years to one year.
The appellants are ordered to be released on
probation of good conduct for 01 (one) year on
furnishing bond of Rs.10,000/- with one surety of like
amount to the satisfaction of learned Chief Judicial
Magistrate, Gomati, Udaipur.
15. The convicts namely Sri Dinesh Ch. Shib, Sri
Paresh Ch. Shib, Sri Dipen Shib and Sri Diptanu Shib are
directed to appear before Ld. CJM, Gomati, Udaipur for
executing a bond in terms of Section 4 of the Probation
of Offenders Act, 1958 as stated above.****"
[10] As stated the petitioners have challenged the judgment of the
Sessions Judge by filing the present petition mainly on the following
grounds:
(i) The trial Court as well as the appellate court did not
appreciate the inconsistencies appearing in the evidence of
the prosecution witnesses and erroneously held the
petitioners guilty relying on their evidence.
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(ii) The Courts below did not appreciate the medical
evidence properly and came an erroneous finding that the
injuries sustained by the informant (PW-1) was caused to him
from the alleged assault.
(iii) The investigation was completely a shallow
investigation. The Investigating Officer could not even identify
the place of occurrence where the alleged occurrence actually
took place.
[11] While arguing for the petitioners, Mr. B. N. Majumder, learned
Sr. counsel argued that evidently the informant (PW-1) falsely implicated
the petitioners in the present case owing to their long standing property
dispute. According to Mr. Nandi Majumder, learned Sr. advocate, all the
witnesses belong to the same family who conspired to prosecute the
petitioners on false charges of assault and gave false statement before
the trial Court in corus to get the petitioners punished. It is submitted by
learned Sr. counsel that the Courts below did not appreciate their
evidence from the right perspective and arrived at an erroneous
conclusion and wrongly convicted and punished the petitioners which
needs to be set aside in this criminal revision petition.
[12] Mr. Ratan Datta, learned Public Prosecutor on the other hand
argued that the concurrent findings of the Courts below based on
sufficient evidence do not call for any interference in this criminal
revision. According to Mr. Datta, learned P.P, the trial Court having duly
considered the facts and circumstances and the age and antecedents of
the petitioners rightly released them on probation which was also upheld
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by the appellate Court and such findings of the courts below should not
be disturbed. Learned P.P therefore, urges for dismissal of the criminal
revision petition.
[13] While arguing in the case, learned counsel representing the
parties had taken this court to the evidence of the prosecution witnesses.
PW-1, Sri Jatan Shiv is the informant who lodged the written FIR with the
police station after the alleged incident of assault. The PW stated in his
examination in chief that at the material time he was going to his work
place on his motor bike. On the way, the petitioners intercepted him,
pulled him down from his bike and assaulted him with fist blows and lathi,
as a result of which he received pain and injury. His brother Tapan Shiv
who came to save him was also assaulted by the petitioners. Later, the
PW received treatment in Tripura Sundari Hospital. According to him, his
wife Smt. Sumita Banik Shiv, brother's wife Smt. Lipika Debnath and his
mother, Smt. Ashalata shiv and neighbour Md. Momtaz Mia also
witnessed the occurrence.
The PW was subjected to an incisive cross examination. In his
cross examination he admitted that his family had a property dispute with
the petitioners over partition of their ancestral property for which he
along with his brother Tapan Shib filed a partition Suit being TS(Partition)
5/2015 in the court of the Civil Judge (Sr. Division) at Udaipur. It was
suggested to the PW that he along with his brother Tapan Shiv entered
into the house of the petitioners and assaulted Paresh
Shiv and his wife. The PW denied the suggestion.
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[14] Pw-2, Smt. Sumitra Banik Shiv who is the wife of informant
PW-1 stated in her examination in chief that when her husband was going
to his work place on his bike the petitioners stopped him in front of their
house and assaulted him with lathi and fist blows. Having seen the
assault on her husband she raised cry. Her brother in law, Tapan Shiv,
sister-in-law Smt. Anamika Shiv and mother-in-law, Smt. Ashalata Shiv
arrived at the place of occurrence and they saved her husband from the
assault.
In her cross examination, she affirmed the fact that the
petitioners assaulted her husband in front of their house when he was
going to his work place on his motor bike at the material time. The
defence counsel could not extract anything from the PW to embellish her
statement made in her examination in chief.
[15] PW-3, Smt. Ashalata Shiv, 84 years old mother of the
informant also supported the case by saying that when his son Jatan
(PW-1) was going to his work place the petitioners stood on his way in
front of their house and pulled him down from his motor bike. Thereafter
they had assaulted him, as a result of which her son received pain and
injury.
In her cross examination, the PW stated that the accused
petitioners were also her sons but presently she was living with her son
Jatan Shiv (PW-1). She denied the suggestion of the accused petitioners
that her son Jatan Shiv was not assaulted by the petitioners. She also
denied the suggestion that her son Tapan Shiv did not receive any injury
while he came to save his brother Jatan Shiv.
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[16] PW-4, Sri Tapan Shiv, elder brother of the informant also
supported the prosecution case by saying that the petitioners who were
his younger brothers, assaulted his brother Jatan Shiv on 25.04.2015 at
about 8.30 am when he was going to work place on his motor bike. He
tried to save his brother from the assault. At that time the petitioners
gave a blow on his back by a wooden file.
In his cross examination, he stated that he and his brother
Jatan Shiv filed a partition suit against his petitioner brothers for partition
of their ancestral property which was pending in the Court of Civil Judge,
(Sr. Division) in Gomati Judicial District. He denied the suggestion of the
accused petitioners that they did not assault Jatan Shiv. He also denied
their suggestion that they did not assault him while he had gone to save
his brother.
[17] PW-5, Smt. Anamika Shiv, wife of PW-4 gave similar
statement. She stated that his brother-in-law Jatan Shiv and husband
Tapan Shiv were assaulted by the accused petitioners in front of their
house and she witnessed the occurrence.
In his cross examination, the accused tried to impeach her
evidence by giving some suggestions to her. The witness denied the
suggestion of the accused petitioners that they did not assault her
brother-in-law Jatan Shiv. She also denied their suggestion that they did
not assault her husband, Tapan Shiv when he had gone to save his
brother.
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[18] PW-6, Md. Mamtaz Uddain who is a neighbour of the
informant as well as of the petitioners supported the prosecution case in
his examination in chief by stating that he witnessed the petitioners
assaulting the informant and his brother Tapan Shiv in front of their
house. He was also cross examined by petitioners at length. It was
suggested to him that neither Jatan Shiv nor Tapan Shiv were assaulted
by the petitioners. The PW denied the suggestion.
[19] PW-7, Dr. Tamal Sarkar attended the injured PW-1 at Tripura
Sundati Sub-Divisional Hospital, Udaipur on 25.04.2015 and found mild
bleeding in the left ear of the injured and swelling on his head. He
recorded the injuries in his report which was exhibited at the trial as Exbt.
3. Statement of the witness is as under:
"On 25.4.15 I was posted as medical officer at the
Tripura Sundari Sub-Divisional hospital, Udaipur. On
that day, one patient namely, Jatan Shib was examined
in the OPD of Tripura Sundari Sub-Divisional hospital,
Udaipur with the history of physical assault. On
examination I have found 1. There was mild bleeding
from left ear 2. Swelling of left parietal part of the head.
The injury were simple in nature. This is the injury
report prepared by me which is marked as Exbt.2 as a
whole. These are my signatures on the said injury report
which is marked as Exbt.2/1 & 2/2 respectively. On the
same day, another patient namely, Sri Tapan Shib was
examined at the OPD of Tripura Sundari Sub-Divisional
hospital, Udaipur with the history of physical assault. On
examination I have found 1. Mild bruise over left knee
joint. The injury is simple in nature. This is the injury
report prepared by me which is marked as Exbt.3 as a
whole. These are my signatures on the said injury report
which are marked as Exbt. 3/1 & 3/2 respectively."
The Medical Officer was cross examined by the counsel of the
petitioners. It was stated by him in cross examination he did not mention
the age of injury in his report. He denied the suggestion of the petitioners
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that he submitted a vague report following the request of the
Investigating Officer.
[20] PW-8 is the Investigating Officer of the case who stated in his
examination in chief that in the course of his investigation he visited the
crime scene and indicated the material locations in his hand sketch map
and index (Exbt.-5). The PW also stated that he recorded the police
statements of all the materials under Section 161 Cr. P.C. Having found
sufficient materials, supporting the charges, he submitted the charge
sheet against the petitioners.
In his cross examination, the Investigating Officer stated that
he did not examine retired headmaster, Sachindra Ch. Das who was living
in close proximity of the place of occurrence.
[21] Having considered the facts and circumstances of the case
and the evidence on record, this Court is of the view that the
unimpeachable statements of the prosecution witnesses recorded at the
trial has clearly established that informant PW-1 was assaulted by his
accused brothers at the material time which was witnessed by his wife,
elder brother Tapan Shiv, sister-in-law and his mother. Evidently, the
informant, PW-1 and his brother Tapan Shiv has a property dispute with
their accused brothers over the division of their ancestral property and a
case was pending on this issue in the Civil Court which developed a bitter
relationship among the brothers. Even the mother (PW-3) came forward
to give evidence against her accused sons. There is no reason to
disbelieve her evidence. All the prosecution witnesses gave a very
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consistent, corroborative and trustworthy evidence against the accused
petitioners. The accused petitioners were also given ample opportunity to
impeach their evidence by cross examination. The case record would
demonstrate that the witnesses were put to incisive cross examination by
the counsel of the petitioners but their evidence could not be demolished
through such cross examination. Therefore, this Court is of the view that
the impugned judgment was passed on proper appreciation of facts,
evidence and law and there is no reason to interfere with the concurrent
findings of the Courts below with regard to the conviction of the
petitioners.
[22] In view of the nature of the offence and the age and
antecedents of the petitioners and the fact that the informant and the
petitioners are full blooded brothers, the trial Court instead of awarding
any sentence to the petitioners, extended the benefit of the Probation of
the Offenders Act, 1958 to them by allowing their release on probation for
a period of two years and placing them under the supervision of the
Probation Officer for a period of two years which was modified by the
appellant Court by reducing the period of probation from two years to
one year. There is no fault in the findings of the appellate Court.
[23] Resultantly, the criminal revision petition stands dismissed.
The petitioners are directed to appear before the trial Court within a
period of two months from today to execute the bond before the
Probation Officer and after execution of such bond by them, the trial
Court shall place them under the supervision of the Probation Officer for a
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period of one year as directed by the appellate Court by the impugned
judgment.
[24] In terms of the above, the criminal revision petition is
disposed of. Pending application(s), if any, shall also stand disposed of.
Send down the L.C record.
JUDGE
Dipankar
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