Sri Shyama Kumar Tripura Son Of Sri ... vs The State Of Tripura To Be ...
2021 Latest Caselaw 1168 Tri

                        HIGH COURT OF TRIPURA
                                  AGARTALA
                            Crl.App(J).No.54 of 2020

Sri Shyama Kumar Tripura son of Sri Deba Padma Tripura, resident of
Purba Pipriakhola, P.S- Belonia, District-South Tripura
                                                        -----Appellant(s)

                                 Versus
The State of Tripura to be represented by the Ld Public Prosecutor, High
Court of Tripura, Agartala.
                                                       ---Respondent(s)

For the Petitioner(s)        :      Mr. S.Bhattacharjee, Adv.

For the Respondent(s)        :      Mr. S.Debnath, Addl.PP.
Date of hearing              :      02.09.2021
Date of judgment             :      26.11.2021
Whether fit for reporting    :      Yes.


                                  BEFORE

         HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                                 JUDGMENT

[1] This appeal is directed against the judgment and order dated

19.05.2020 passed by the Sessions Judge, South Tripura Belonia in case

No.ST 04 (Type-1) of 2018 whereby the appellant was convicted for

having committed offence punishable under Sections 452, 354, 307, 324,

and 323 IPC and sentenced as under:

              Offence             Imprisonment     Fine   Default sentence
              Section452 IPC      RI for 3 years   1000   SI for 15 days
              Section 354 IPC     RI for 2 Years   1000   SI for 15 days





                                        Section 307IPC     RI for 3 years   5000   SI for 2 months
                                        Section 324 IPC    RI for 2 years   1000   SI for 15 days
                                        Section 323 IPC    SI for 6 months -       -

It was ordered that all the sentences would run concurrently

and the period of detention already undergone by the convict shall be set

off against the period of sentence.

[2] Aggrieved by and dissatisfied with the conviction and

sentence, appellant has challenged the impugned judgment and order on

various grounds.

[3] Factual back ground of the case is as under:

Victim (name withheld to hide her identity) lodged a

written FIR with the Officer in charge of Belonia Women Police Station

on 21.08.2016 alleging, inter alia, that accused appellant trespassed into

her dwelling hut at about 12 O'clock in the night on 19.08.2016 where

she was sleeping along with her husband and 3 minor daughters.

Accused touched her breasts and then tried to commit rape on her by

removing her nighty. He was also pressing her mouth with one of his

hands in order to prevent her from shouting. The victim somehow

removed his hands from her mouth and started crying for help. Her

husband woke up from sleep. They recognized the accused in the light of

a torch. Accused appellant had a 'dao' with him. When her husband tried

Crl.App.(J) No.54 of 2020

to catch hold of him, he started chopping her husband with the dao. As a

result, her husband received bleeding injuries in several parts of his

body. Her injured husband was immediately taken to Barpathari Primary

Health Centre from where he was referred to AGMC and GBP Hospital

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

since she was engaged in the treatment of her husband.

[4] Said FIR of the victim was received at the police station on

21.08.2016 and Belonia P.S. case No.52 of 2016 under Sections 326,

376 read with Section 511 and Section 457 IPC was registered and the

case was taken up for investigation.

[5] During investigation, the Investigating Officer seized the

blood stained weapon of offence from the house of the accused, the

wearing apparels of the victim and the torch light by which victim

identified the accused. Victim's statement under Section 164(5) Cr.P.C.

was recorded by the jurisdictional Judicial Magistrate of the First Class

and police statement of material witnesses were recorded under Section

161 Cr.P.C. The injury report of the husband of the victim was collected

from the concerned hospital and on completion of investigation, the IO

submitted charge sheet vide No.47 of 2016 dated 28.09.2016 against the

appellant for offence punishable under Sections 457, 376 read with

Section 511 IPC and 326 IPC.

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[6] Trial commenced in the court of learned Sessions Judge at

Belonia in South Tripura with the framing of the following charges

against the accused:

"Firstly, that in the intervening night of 19.08.2016 and 20.08.2016 in the dead of night after 1130 hours at any time you committed house trespass by entering into the hut of e informant victim wife of the injured husband (name withheld to hide their identity) of East Pipariakhola (Noabari) under PS-Belonia in order to commit an offence punishable with imprisonment for life, such as committing rape of the complainant and causing murder of her husband and thereby committed an offence punishable under Section 450 of the Indian Penal Code and within the cognizance of this court of Sessions.

Secondly, that on the aforesaid date, time and place, in order to commit the offence of rape against the informant removed her wearing apparels while she was sleeping, pressing her mouth, also outraged her modesty and pressed her breast and attempted to commit offence of rape and thereby committed an offence punishable under Section 511 read with Section 376 of the Indian Penal Code and within the cognizance of this Court of Sessions.

Thirdly, that on the aforesaid date, time and place, you also outraged the modesty of the informant by pressing her breast and by removing her wearing apparels during sleeping pressing her mouth and you thereby committed an offence punishable under Section 354 of the Indian Penal Code and within the cognizance of this Court of Sessions.

Fourthly, that on the aforesaid date, time and place, you did an act of giving blows of dao at the head of the husband of the victim, son of Sri Prasadmoni Tripura with such intention and knowledge and under such circumstances that had the act of yours caused the death of said husband, you would have been guilty of murder and you thereby committed an offence punishable under Section 307 of the Indian Penal Code and within the cognizance of this Court of Sessions.

Crl.App.(J) No.54 of 2020

Fifthly, that on the aforesaid date, time and place, you also caused grievous hurt to said husband by means of a sharp cutting weapon by giving blows by its sharp edge at his head and in right arms and you thereby committed an offence punishable under Section 326 of the Indian Penal Code and within the cognizance of this Court of Sessions.

Sixthly, that on the aforesaid date, time and place, you also committed the offence of grievous hurt by causing fracture injuries by means of blunt object on his bone of right arm and you thereby committed an offence punishable under Section 325 of the Indian Penal Code and within the cognizance of this Court of Sessions."

All the charges were read over and explained to the accused

appellant at the trial court. He pleaded not guilty to the charges and

desired to stand the trial.

[7] In the course of trial, victim was examined as PW-1, her

mother-in-law was examined as PW-2 and her father-in-law was

examined as PW-3. Her sister-in-law (husband's sister) was examined as

PW-4 and her husband was examined as PW-5.The IO of the case was

examined as PW-6 and the Medical Officer who attended the injured

husband of the victim after he was brought to Barpathari PHC was

examined as PW-7. Apart from adducing the oral evidence of the said

prosecution witnesses, 06 exhibits [Exbt.1 to Exbt.6] were also

introduced on behalf of the prosecution.

[8] The trial court explained the incriminating materials in

detail to the accused during his examination under Section 313 Cr.P.C.

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Accused simply denied the prosecution case and claimed that the

charges were foisted on him. He declined to adduce any witnesses on his

defence.

[9] The learned Sessions Judge, by the impugned judgment and

order dated 19.05.2020, held that the charges under Sections 452,

354,307,324 and 323 IPC were proved against the accused. Accused was

therefore, found guilty and convicted. After providing opportunity of

hearing to the convict on the question of sentence, the learned Sessions

Judge imposed various sentences as aforesaid, on the accused appellant.

Relevant extract of the impugned judgment is as under:

"[13]............but it is clear that victim sustained multiple cut injuries at his head by sharp cutting weapon and also some injuries by blunt object, even it is not proved that he sustained fracture injuries. As such, I find and hold that the prosecution in this case can only be able to prove the ingredients of Section 324 and 323 of IPC. But from the evidence it is clear that accused made number of sharp cut blows by dao at the vital part of the head which shows the intention of the accused to kill the injured. It is proved that the injured first caught hold the accused and in order to get himself free, the accused gave the blows of dao on the head of the victim and the accused also trespassed into that hut with preparation to cause blow of dao and he concealed the dao at his back which is apparent from the evidence. So, in this case the prosecution is also able to prove a case under Section 307 of IPC.

The evidence of PW-1 and PW-5 clearly shows that the accused first used criminal force in order to outrage the modesty of the informant and made her naked taking her nighty towards up and also pressed her breast. So, prosecution is also able to prove the offence punishable under Section 354 of IPC as against the accused person. Furthermore, I find that accused entered into the hut of the informant with preparation to cause hurt or assaulting and he committed house trespass having such preparation. As such, prosecution is also able to prove the offence under Section

Crl.App.(J) No.54 of 2020

452 of IPC. This court did not frame charge under Section 452 IPC, but framed charge under Section 450 IPC. The offence under Section 452 IPC is a cognate offence of Section 450 IPC and as such the accused is also found to have committed an offence punishable under Section 452 of IPC.

ORDER

[14] In the result, I find and hold that the charges under sections 452,354,307,324 and 323 of the IPC have been proved by the prosecution against accused Sri Shyama Kr.Tripura beyond reasonable doubt. Hence, accused Sri Shyama Kr.Tripura is found guilty and convicted for the offence punishable under Sections 452,354,307,324 and 323 of the IPC. He is already in custody."

[10] Aggrieved with the impugned judgment accused appellant

has filed this appeal mainly on the following grounds:

(i) Trial Court did not appreciate the contradictions appearing in the prosecution evidence on material points.

(ii) Trial Court did not appreciate the fact that investigation conducted by the IO was absolutely perfunctory and the materials collected during the investigation were not sufficient to submit charge sheet against the accused.

(iii) Trial Court did not appreciate the fact that the appellant was falsely implicated in the case as a result of the inimical relationship between the victim and the accused.

[11] Heard Mr. S.Bhattacharjee, learned counsel appearing for

the appellant. Also heard Mr. S.Debnath, learned Addl. PP representing

the state respondent.

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[12] In the course of his arguments, Mr.Bhattacharjee, learned

counsel appearing for the accused has contended that prosecution has

presented an improbable story. Counsel contends that it is quite

improbable that the accused would enter into the dwelling hut of the

victim to commit rape on her particularly when she was sleeping

together with her husband and children and her dwelling hut was

surrendered by a lot of adjoining houses. Counsel submits that no

independent witness has been examined in this case. The witnesses who

have been examined by the prosecution are the victim, her injured

husband, her sister-in-law and parents in law who are all interested

witnesses. According to learned counsel, they have given evidence in

same tune to ensure conviction and sentence of the accused. Counsel

submits that conviction based on these interested witnesses is not

sustainable. Learned counsel, therefore, urges the court to set aside the

conviction and sentence of the appellant.

[13] Mr.S.Debnath, learned Addl. PP, representing the state

respondent argues that the impugned judgment is based on sound

evidence and the prosecution case cannot be disbelieved only on the

ground that the witnesses are the relatives of the victim. Counsel submits

that there is no infirmity in the evidence of the prosecution witnesses.

All the PWs have given consistent and corroborative evidence in support

Crl.App.(J) No.54 of 2020

of the prosecution charges. Therefore, there is no reason to interfere with

the impugned judgment. Learned Addl. PP therefore, urges the court to

dismiss the appeal.

[14] In the course of arguments learned counsel of the parties

have taken this court to the evidence of the witnesses. PW-1 is the

victim who gave a detailed account of the occurrence. She has asserted

that the accused outraged her modesty by touching her private parts and

when her husband tried to catch hold of him, he chopped her husband

with a sharp edged weapon called 'dao' and escaped. Accused was not a

stranger to the witness. When he was scuffling with her husband, she

focused a torch on his face and identified him. The PW was subjected to

an incisive cross examination. Accused could not impeach her evidence

to any extent. It was not even suggested to her that she gave false

evidence for any kind of animosity towards the accused.

[15] Her mother-in-law who testified at the trial as PW-2 stated

that she used to live in the adjoining hut at a distance of 15 cubits from

the dwelling hut of the victim where the occurrence took place.

Following hue and cry of her daughter in law, she woke up from sleep

and proceeded to the dwelling hut of her son with a torch light in her

hand. On the way, she saw the accused running away from the dwelling

Crl.App.(J) No.54 of 2020

hut of her son. She noticed bleeding injury in different parts of the body

of her son. Her victim daughter in law told everything to her.

In her cross examination, it was suggested to her that she

did not see the accused running away from the house of her son. She

denied the suggestion. She also seems to have qualified the test of cross

examination.

[16] PW-3 is the father in law of the victim. He also stated that

following the hue and cry of his daughter in law, he followed his wife

[PW-2] to the house of his son where he found his injured son lying

senseless with bleeding injuries. He came to know from his victim

daughter in law that the accused had done some nasty things to her and

when his son had come to catch hold of the accused, he chopped him

with a 'dao'. As a result of which, his son received bleeding injuries. PW

was alo subjected to cross examination. In his cross examination, he

denied to have any knowledge as to whether the accused consumed

liquor along with his friends prior to the occurrence. He straight away

denied the suggestion which were put to him by the cross-examiner. In

his examination-in-chief, he supported the statements of his daughter in

law and his wife which could not be impeached in cross examination to

any length.

Crl.App.(J) No.54 of 2020

[17] PW-4 is Rani Tripura who lived in the adjoining house of

the victim. Husband of the victim is her elder brother. She stated that she

rushed to the house of the victim following the cry of her victim sister in

law. She found her brother lying injured. On her query the victim told

her that the accused had committed some nasty things to her. When her

brother tried to apprehend the accused, he inflicted dao blows on him as

a result of which her brother received several bleeding injuries. In her

cross examination, she denied that she gave false evidence against the

accused since she was a relative of the victim.

[18] PW-5 is the injured husband of the victim. He also gave

detailed account of the incidence. He stated that at the material time he

was sleeping with his wife and daughters. Suddenly he woke up from

sleep hearing the cry of his wife and found that his wife was scuffling

with a person. Immediately he tried to catch hold of that person. His

wife also focused torch light on him and in the light of the torch, they

identified him to be Shyama Kumar Tripura, the accused. The accused

started chopping him with a 'dao' which was in his possession. Having

received the blows, the PW lost his sense. He regained his sense only at

Barpathari PHC.

Crl.App.(J) No.54 of 2020

During his cross examination, accused could not damage

his evidence to any extent. Nothing could be extracted from him in

support of the defence case.

[19] PW-6 is the IO who stated that materials collected during

investigation, supported the charges against the accused. As a result of

which she submitted charge sheet against him.

[20] PW-7 is the medical officer who attended injured Gautam

Tripura at Barpathari PHC. Injured husband of the victim was brought to

the health centre immediately after the occurrence. The Medical Officer

stated that he was admitted in the PHC and on the following day he was

referred to the AGMC and GBP hospital as the injuries suffered by him

were grievous. The PW prepared an injury report and handed over the

same to the investigating agency. He identified his report as Exbt.6

[21] The evidence recorded, clearly demonstrates that the

accused committed house trespass by entering into the dwelling house of

the victim with a 'dao' (a sharp edged weapon) and thereby committed

an offence punishable under Section 452 IPC. With regard to the charge

of Section 354 IPC, the victim [PW-1] has categorically stated that the

accused had touched her breast and he was also trying to undress her by

removing her nighty. Her husband also witnessed his wife scuffling with

the accused after he woke up from sleep hearing the cry of his wife.

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Their evidence could not be impeached in cross examination. Their

children who were sleeping with them were all minors. The eldest was

only 5 years old. Therefore, the trial court rightly held the accused guilty

of offence punishable under Section 354 IPC on the basis of un-rebutted

testimony of the victim and her husband.

[22] With regard to his conviction under Section 324 IPC, the

evidence of the victim as well as the evidence of her husband and that of

the Medical Officer [PW-7] has established the charge against the

accused. It stands proved that the accused voluntarily caused hurt to the

husband of the victim by inflicting several blows in different parts of his

body with a dao which is a sharp edged dangerous weapon. The doctor

[PW-7] who examined the injured husband of the victim immediately

after the occurrence, recorded in his report[Exbt.6] that he suffered from

several lacerated wounds caused by sharp edged weapon. Therefore, his

conviction under Sections 324 and 323 IPC cannot also be faulted with.

[23] In so far as the conviction of the accused petitioner under

Section 307 IPC is concerned, the facts and circumstances of the case

and the evidence adduced on behalf of the prosecution would reveal that

accused did not intend to cause death of the husband of the victim. When

he was outraging the modesty of the victim, she cried for help and while

her husband went to catch hold of him, accused gave certain blows on

Crl.App.(J) No.54 of 2020

him to facilitate his escape. The essential considerations to determine

whether an act falls within the ambit of Section 307 are the nature of the

act done, the intention of the accused and the circumstances under which

the act is done. In the given circumstances of the case, it is crystal clear

that accused had no intention to cause the death of the husband of the

victim even though he used a sharp edged weapon and caused injuries to

his person. Therefore, his conviction and sentence under Section 307

IPC is not acceptable.

[24] For the reasons stated above, conviction of the petitioner for

offence punishable under Sections 452,354,324 and 323 IPC is upheld

and his conviction and sentence under Section 307 IPC is set aside

[25] In so far as the sentence is concerned, Sentence under

Section 452 IPC is reduced to RI for 2 years and fine of Rs.1000/- and

ID to SI for 15 days. Sentence imposed for offence punishable under

Sections 354,324 and 323 IPC do not call for any interference. All the

sentences would run concurrently as ordered by the trial court.

[26] The period of detention under gone by the petitioner during

investigation and trial would be set off against the term of imprisonment

and he would undergo imprisonment for the remaining period only.

[27] Communicate the judgment and order to the trial court

immediately. If it is found that the petitioner has already suffered the

Crl.App.(J) No.54 of 2020

sentence, he shall be released forthwith, otherwise he will suffer

sentences for the remaining period.

[28] In terms of the above, the case is disposed of.

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

JUDGE

Saikat Sarma, P.S-II

Crl.App.(J) No.54 of 2020