Tripura High Court

Sri Bhaktar Miah @ Bhakta vs The State Of Tripura Represented ... on 26 November, 2021

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                                           HIGH COURT OF TRIPURA
                                                 AGARTALA
                                               Crl. Rev.P.No10 of 2020

                       1.Sri Bhaktar Miah @ Bhakta S/O Sri Ripul Miah, R/Of of Khilpara,
                       Adipara, P.S.- R.K.Pur, District-Gomati
                       2.Sri Babul Miah S/O. Late Rashid Miah, R/Of Khilpara, Adipara, P.S.-
                       R.K.Pur, District-Gomati
                       3.Sri Bhola Miah @Bulu S/O. Late Suja Miah, R/Of Khilpara, Adipara,
                       P.S.- R.K.PUR, District-Gomati
                                                                          -----Petitioner(s)

                                                       Versus
                       The State of Tripura Represented by the Principal Secretary, Govt. of
                       Tripura, Dept. of Home, having his office at New Secretariat building,
                       Gurkhabasti, Agartala, Tripura, West
                                                                         -----Respondent(s)

                                                      BEFORE

                               HON'BLE MR.JUSTICE S.G.CHATTOPADHYAY

                       For the Petitioner(s)       : Mr. Debajit Biswas, Adv.
                       For the Respondent(s)       : Mr. S. Debnath, Addl. P.P.
                       Date of hearing             : 01.10.2021
                       Date of Judgment
                       and Order                   : 26.11.2021
                       Whether fit for reporting   :    Yes No
                                                               

                                                    JUDGMENT

[1] This Criminal Revision Petition, under Section 397 read

with Section 401 Cr.P.C. is directed against the impugned judgment

dated 03/01/2020 passed by the learned Sessions Judge, Gomati Judicial

district, Udaipur in Crl. Appeal No. 23 of 2019 affirming the conviction

Crl.Rev.P.No.10/2020

and sentence of the petitioner awarded by the CJM, Gomati Judical

District in case No. PRC(WP) 129 of 2017 whereby and whereunder the

petitioner was convicted under Sections 324 IPC, and sentenced to

Rigorous Imprisonment [RI] for two (02) years and a fine of Rs.10,000/-

with default stipulation.

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

FIR lodged by Mst Fazubibi, wife of Md. Mohammad Miah of West

Khilpara with Officer-in-Charge of R.K.Pur Police Station on

10.07.2017 alleging, inter alia, that about 8 months back wife of her son

Rafik Miah eloped with accused Bhaktar [email protected] and married

him. On this issue accused petitioner Bhaktar Miah along with the other

02 accused had started quarreling with the son of the complainant infront

of her house on 10.07.2017. All on a sudden the 03 petitioners along

with Mst.Minuara Begum started assaulting her son Rafik Miah. During

the assault they chopped him with a knife on his belly, scalp and other

vital parts of his body. When 02 other sons of her came to the rescue of

her son Rafik Miah, the accused petitioners also attacked them with

knife and caused bleeding injuries to them. The neighbouring people had

brought her injured sons to Tepania hospital where they were admitted.

Later they were referred to AGMC and GBP hospital at Agartala in

critical condition.

[3] R.K.Pur PS Case No.95 of 2017 under Sections 341, 324

and 326 IPC was registered on the basis of the FIR, of Mst. Faju Bibi

Crl.Rev.P.No.10/2020

and the case was taken up for investigation. After investigation, police

submitted charge sheet against the 03 accused petitioners namely

Bhaktar Miah @ Bhakta, Babul Miah and Bhola Miah for their

prosecution for offence punishable under Sections 341,323 and 326 read

with Section 34 IPC.

[4] Cognizance of offence was taken and trial commenced in

the Court of the learned CJM with the framing of the following charges

against the petitioners:

"Firstly that all of you on 10.07.2017 at about 11 a.m with common intention at Khilpara Adipara under R.K.Pur PS in front of the house of the informant Smt.Faju Bibi wrongfully restrained the son of the informant Sri Rajik Miah and thereby you have committed an offence punishable U/S 341/34 of IPC and within my cognizance..

Lastly, on the same date time and place all of you with common intention voluntarily caused grievous hurt upon Sri Rafik Miah, Sri Kamal Hossain and Sri Jalal Hossain by knife and takkal which are sharp cutting weapon and thereby you have committed an offence punishable U/S. 326/34 of IPC and within my cognizance."

The petitioner pleaded not guilty to the said charges and

claimed trial

[5] In the course of trial, prosecution examined complainant

Faju Bibi as PW-1, the scribe of the Ejahar namely Khahirur Khadim as

PW-2, one Jalal Hossain, a neighbor of the complainant as PW-3, her

injured son Hamid Miah as PW-4, neighbor Jalil Miah as PW-5, her

injured son Rafik Miah as PW-6 and another injured son Kamal Hossain

as PW-7. This apart, prosecution also examined the IO namely Sujit

Crl.Rev.P.No.10/2020

Rudra Pal as PW-8 and the Medical Officer, Dr.Shyamsundar Saha as

PW-9. Apart from adducing the ocular evidence of the witnesses,

prosecution relied on 6 documents which were marked as Exbt.1-

Exbt.6/2.

[6] On the basis of the incriminating materials which appeared

against the accused from the prosecution evidence, accused was

examined under Section 313 Cr.P.C. Defence case is a plain denial of the

prosecution charges. No evidence was adduced on behalf of the accused.

[7] On appreciation of evidence, the trial court came to the

conclusion of guilt of the 03 petitioners and after convicting them for

having committed offence punishable under Section 324 read with

Section 34 IPC sentenced each of the petitioners to RI for 02 years and

fine of Rs.10,000/- with default stipulation.

[8] Petitioners challenged the judgment of the trial court in

appeal before the learned Sessions Judge of Gomati Judicial District at

Udaipur. The leaned Sessions Judge by a detailed judgment and re-

evaluation of evidence affirmed the conviction and sentence of the

petitioners. Relevant extract of the judgment of the learned Sessions

Judge is as under:

"16. Ld. Trial court has also rightly observed in Para 43 of his judgment that the prosecution has successfully proved the fact of inflicting knife blows by accused Bhaktar Miah to the PW 6 Rafik Miah, PW 3 Jalal Hossain, and PW 7 Kamal Hossain and also that it stands established beyond reasonable doubt that the accused Babul Miah and Bhola Miah actively participated in the said

Crl.Rev.P.No.10/2020

assault on the victims. As regards the witnesses being relatives I find that the Ld. Trial court, relying on the decisions of the Hon'ble Apex Court, has rightly stated that the fact that the prosecution witnesses are relatives would not automatically render their evidence suspect and unacceptable. Mere interestedness by itself is not a valid ground for discarding or rejecting the sworn testimony nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction. Situated thus, I find that the Ld. Trial court has rightly held that the offence under section 324 read with section 34 of the IPC has been proved beyond shadow of doubt against the accused persons namely Bhaktar Miah @ Bhakta, Babul Miah and Bhola Miah @ Bulu."

[9] Heard Mr.Debajit Biswas, counsel appearing for the

petitioners. Also heard Mr.S.Debnath, learned Addl. PP.

[10] Mr.Biswas, learned counsel of the petitioners contends that

prosecution evidence suffers from infirmities on material points and the

trial court as well as the appellate court erroneously convicted the

petitioners ignoring these infirmities in the prosecution evidence.

Counsel further submits that the parties to the case have come to an

amicable settlement and since they are neighbours and they want to live

in a harmonious relationship, it would be appropriate to accept their

compromise and pass an order of acquittal of the petitioners.

[11] Mr.S.Debnath learned Addl. PP, vehemently opposes the

contention of the counsel of the petitioners. It is submitted by Mr.

Debnath that compromise, as pointed out by the counsel of the

petitioners, is unknown to the prosecution. Learned Addl. PP submits

that the petitioners have committed a very serious offence. It has been

proved that petitioner Bhaktar Miah spoiled the marital life of the son of

Crl.Rev.P.No.10/2020

the complainant. At his instigation, wife of the son of the complainant

eloped with him and subsequently he started forcing the son of the

complainant to divorce his wife so that the accused petitioner Bhaktar

Miah could marry her. When Rafik Miah, son of the complainant

disagreed, he was severely beaten by accused Bhaktar Miah and the

other petitioners. Counsel submits that the charge under Section 324 IPC

having been established against the petitioners they have been rightly

convicted and sentenced by the trial court which has been affirmed by

the appellate court. Counsel urges the court to uphold the conviction and

sentence of the petitioners.

[12] In the course of hearing counsel of the parties has referred

to the evidence of the prosecution witnesses. Complainant Faju Bibi has

been examined as PW-1. She has asserted in her examination in chief

that on the material day accused Babul Miah restrained her son Rafik

Miah in front of her house and asked him to divorce his wife. Her son

having disagreed to the proposal of Babul Miah, Babul Miah started

assaulting her son with a lathi. When she went to prevent Babul Miah

along with her 02 other sons, accused Bhaktar Miah appeared with a

knife and stabbed her son Rafik Miah. As a result, Rafik Miah collapsed

on earth. Accused Bhaktar Miah along with the 2 other accused also

assaulted her and her 02 sons namely Jalal Hossain and Kamal Hossain.

All of them were taken to hospital.

Crl.Rev.P.No.10/2020

In her cross examination she admitted that wife of Babul

Miah also filed a case against her husband and sons alleging that they

assaulted Babul Miah for which Babul Miah was admitted in GBP

hospital at Agartala. It was suggested to the witness that she made false

statement with regard to the assault of her sons. She denied the

suggestions.

[13] PW-2 stated that he scribed the ejahar following the

dictation of PW-1. He identified the said ejahar which was taken into

evidence and marked as Exbt.1(i) and his signature there on was marked

as Exbt.1(ii)

[14] PW-3, Jalal Hossain is one of the sons of the complainant.

He supported the statement of his mother with regard to assault of his

brother Rafik Miah. The PW stated that when his brother Rafik Miah

was returning home after taking bath, Babul Miah stood on his way with

a lathi. The other petitioners also joined him. Accused Bhaktar Miah

stabbed him with a knife and when he along with his mother and other

brothers went to rescue his brother Rafik Miah, they were also assaulted

by accused Bhaktar Miah and the other 02 accused.

In his cross examination he stated that mother of accused

Bhaktar Miah has also filed a case against him, his mother and brothers

on the ground that they assaulted said Bhaktar Miah.

Crl.Rev.P.No.10/2020

[15] PW-4, Hamid Miah is another son of the complainant who

gave similar statement supporting the evidence of his mother [PW-1] and

brother [PW-3]. He stated that Babul Miah restrained his brother Rafik

Miah with a lathi when he was returning home after taking his bath. At

that time the other 02 accused including Bhaktar Miah appeared.

Accused Bhaktar Miah stabbed his brother with a knife. The accused

petitioners also assaulted him and his mother.

[16] PW-5 Jalil Miah Sarkar was declared hostile at the instance

of the prosecution lawyer and he was cross examined by Addl.PP. His

evidence does not appear to be significant.

[17] PW-6 is Rafik Miah who is the most material witness of

this case told the court at the trial that accused Babul Miah restrained

him when he was returning home after taking bath and asked him to

divorce his wife. When he disagreed, Babul Miah stabbed him with a

knife and the other 02 accused petitioners also assaulted him. At that

time his brothers and complainant mother appeared for his rescue. They

were also assaulted by the petitioners.

In his cross examination various suggestions were put to

him on behalf of the defence. It was suggested that on the date of

occurrence he along with his mother and brothers assaulted Babul Miah

and Bhaktar Miah for which they were admitted in hospital. He denied

the suggestion. When he was asked as to whether wife of Babul Miah

Crl.Rev.P.No.10/2020

and mother of Bhaktar Miah filed cases against him and his mother and

brothers he stated that he could not say anything about it.

[18] PW-7 Kamal Hossain is another son of the complainant

who stated in same tune with his complainant mother and brothers that

his brother Rafik Miah was stabbed by accused Bhaktar Miah and when

he along with his mother and brothers went to save Rafik Miah they

were also assaulted by the petitioners.

In his cross-examination, he denied the suggestion of the

defence counsel that the present case was filed by his mother to save

themselves from the case filed by the petitioners against them.

[19] PW-8 is the IO who stated that materials collected during

investigation prima facie proved the case and therefore, he submitted

charge sheet against the accused petitioners.

[20] PW-9, Dr.Shyamsundar Saha is the medical officer who

examined injured Kamal Hossain, Jalal Hossain and Rafik Miah, sons of

the complainant in AGMC and GBP hospital at Agartala on the date of

occurrence and found injuries in their body. PW stated that in the body

of accused Rafik Miah, he found the following injuries:

"01. One stitched and bandaged wound over right hypochondrium region of abdomen.

02. One stitched and bandaged would over right hand palmer aspect,

Crl.Rev.P.No.10/2020

03,Ultra Sonography of abdomen reveled minimal intraperitonial free fluid

04.CT scan of abdomen revealed minimal intraperitonial free fluid with right pleural effusion and a full thickness stab would in right rectus abdominis."

The PW opined that some of the injuries suffered by Rafik

Miah were grievous in nature which were caused by sharp cutting

weapon.

[21] The evidence discussed herein above, clearly demonstrate

that Rafik Miah was assaulted by petitioner namely Bhaktar Miah on the

date of occurrence. It stands proved from the medical evidence as well as

from the statements of the eye witnesses that Rafik Miah was stabbed

with a knife by accused Bhaktar Miah.

[22] Evidence against the other 02 accused petitioners is not

sufficient to maintain their conviction and sentence under Section 324

IPC. Resultantly, conviction of petitioner Bhaktar Miah under Section

324 IPC is upheld and the conviction and sentence of the other 02