High Court Of Tripura vs Sri Ajoy Debbarma
2022 Latest Caselaw 698 Tri

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                HIGH COURT OF TRIPURA
                         AGARTALA
                       Crl. A. 19/2021
Smt. Bidyapati Debbarma
wife of late Brindaban Debbarma, resident of Jampuijala, P.O. Jampuijala,
P.S. Jampuijala, Sub-Division- Bishalgarh, District- Sepahijala, Tripura
(mother of deceased Ananda Debbarma)
                                                              ----Appellant
             Versus
1. Sri Ajoy Debbarma
son of Sri Chaitra Mohan Debbarma, resident of Rabi Charan Thakur Para,
P.S. Radhapur, District- West Tripura
2. Sri Sajal Debbarma
son of Sri Upendra Debbarma, resident of Ram Mohan Para (Montfort area),
P.S. Radhapur, District- West Tripura
3. Sri Rohan Debbarma
son of Sri Sambhu Debbarma, resident of Chengkharu Kami (Montfort),
P.S. Jirania, District- West Tripura
                                                ----Accused-Respondents

4. The State of Tripura                                      ----Respondent
For Appellant(s)                :      Mr. P. Majumder, Advocate
For Respondent(s)               :      Mr. Ratan Datta, PP
                                       Mr. S. Debnath, Addl. PP
                                       Mr. PK Biswas, Sr. Advocate
                                       Mr. S. Bhattacharjee, Advocate
                                       Mr. R. Debnath, Advocate
Date of hearing and delivery of
Judgment & Order                :      27.07.2022
Whether fit for reporting       :      Yes / No

        HON'BLE MR. JUSTICE T. AMARNATH GOUD
          HON'BLE MR. JUSTICE ARINDAM LODH
                        JUDGMENT (ORAL)

(Amarnath Goud, J) Heard Mr. P. Majumder, learned counsel appearing for the appellant

as well as Mr. Ratan Datta, learned PP assisted by Mr. S. Debnath, learned

Additional PP appearing on behalf of the respondent-State. Also heard Mr. Page 2

PK Biswas, learned senior counsel assisted by Mr. R. Debnath, learned

counsel for the accused-respondents.

2. This appeal arises out of the judgment and order of acquittal dated

26.04.2021 passed in connection with case No. S.T.(Type-1) 34 of 2016 by

the learned Sessions Judge, West Tripura, Agartala, whereby and whereunder

the accused-respondents no. 1 to 3 were acquitted from the charge framed

against them under Section 302 read with Section 34 of the IPC.

3. The fact leading to filing of the present appeal, in a nutshell, is that, on

16.01.2016 at about 3.00 p.m. the complainant alongwith one of his friends,

namely, Ananda Debbarma (the deceased) were standing near auto-stand of

Montfort market in front of a restaurant and at that time the accused-

respondents no. 2 and 3 arrived there and hit Ananda Debbarma with a piece

of bamboo and also kicked him consequent to which Ananda Debbarma died

on the spot

4. The said complaint was registered as Radhapur PS case no. 02 of 2016

under Sections 341/302/34 of the IPC. The matter was investigated by the

investigating officer, and after completion of investigation submitted charge-

sheet against the accused-respondents under Sections 341/302/34 of the IPC.

At the commencement of trial, the learned Sessions Judge had framed charge

under Section 302 IPC against the accused-respondents to which they pleaded

not guilty and claimed to be tried.

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5. During trial, the prosecution to establish the charges had adduced 23

witnesses and exhibited some documents. After closure of recording

evidences, the accused-respondents were examined under Section 313 Cr.P.C.

wherein they denied all the allegations leveled against them by the

prosecution witnesses but had adduced two witnesses on his behalf as DW-1

and DW-2. After hearing arguments and on examining the evidences and

materials on record, the learned Sessions Judge had acquitted all the accused

persons from the charge framed against them on the benefit of doubt. Being

aggrieved, the present appeal is preferred by the appellant.

6. Mr. Majumder, learned counsel for the appellant has submitted that

without properly appreciating the evidences on record, the learned trial court

had acquitted the accused-respondents, hence, he has prayed for quashing the

said order of acquittal.

7. On the other hand, learned counsel appearing for the accused-

respondents has urged to maintain the findings of the learned trial court since

there is no infirmity or illegality in the findings of the learned trial court.

8. We have considered the submissions for learned counsel appearing for

the parties. We have perused the evidences and materials on record and the

judgment passed by the learned Sessions Judge. It is found that after due

scrutiny, the learned trial Court in para 17 and 18 of the judgment had

observed inter alia that:

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"17) Regarding motive of crime, prosecution examined PW-18, Pinku Kalai who deposed that in the last part of November, 2015, his brother Pintu Kalai came to their house taking the motor cycle of Rohan Debbarma and thereafter, said Madhusudhan Debbarma (PW-1) met an accident with said motor-cycle and Rohan asked Pintu to get his motor cycle repaired. On 16.01.2016, at about 8 a.m, Rohan Debbarma again came to the house of Pintu Kalai and asked Pintu to get the motor-cycle repaired immediately and then, PW-18 (Pinku Kalai) requested Ananda Debbarma to talk with Madhusudhan for repairing of said Motorcycle. At about 1.30 p.m or so on that day, Ananda telephoned him to inform that he had already talked with Madhusudhan regarding repairing of said motorcycle. Thereafter, he cut off the telephone line and on that day at about 4 p.m, he learnt from local people of Jampuijala market that Ananda had expired. In his cross examination he stated that Madhusudhan was not a resident of their village and motor-cycle was damaged by Madhusudhan when he met the accident. However, he also replied that he could not say whether there was any dispute cropped up between Ananda and Madhusudhan regarding repairing of said motorcycle. He further stated that after about one month from the said incident, police examined him. From his such evidence, it appears that Madhusudhan had actually damaged the motor cycle of Rohan and Ananda was simply pursuing Madhusudhan to get the same repaired. From his evidence nothing came out to infer that Ananda had any enmity with Rohan or there was any strain relation persisting between them, rather there was possibility that Rohan became hostile with Madhusudhan for damaging his motorcycle. According to Madhusudhan, on the relevant time of incident, Ananda went to discuss the matter with Rohan to resolve the dispute and at that time, incident occurred. But it is not clear asto why Ananda being a mitigator was assaulted by the accused persons when grievance of Rohan was suppose to be against Madhusudhan and not against Ananda. Therefore, motive of crime was not satisfactorily explained by the prosecution, rather a suggestion was given from the side of accused persons to PW.1 to show another probability that Madhusudhan had falsely implicated Rohan and Sajal in this case as he had quarrel with them on said motor cycle issue.

18) These are the sum total of prosecution evidence. As already discussed above, the prime witnesses of the case are PW.1, Madhusudhan Debbarma and PW.16, Pintu Kalai. Both of them have claimed themselves to be the eye witnesses of the case, but one is contradicting with each other on material points and evidence of both these two witnesses cannot co- exist rendering both of them untrustworthy. Apart therefrom, further doubt arises regarding the conduct of the I.O. and said Madhusudhan Debbarma, that despite disclosing the name of assailants, if at all, and describing the incident to the I.O. in the hospital as claimed by some of the material witnesses, no FIR was registered and it was lodged subsequently already when I.O. had started investigation. Ld. Defence Counsel argued that when details of information of the incident was disclosed by Madhusudhan to the I.O. in the hospital, he did not disclose names of any of the accused persons, so FIR was not registered and they were implicated lateron by submitting delayed FIR. There is no incriminating material against accused Ajoy Debbarma. As it appears, in the FIR or even during his examination u/s 161 Cr.P.C. on 16.1.2016 and 27.1.2016 , Madhusudhan Debbarma did not disclose his name but on his last examination made by I.O. again u/s 161 Cr.P.C on 6.2.2016., Ajoy was implicated in this case. In the light of the evidences both factual and circumstantial, such delay in lodging FIR, though of a small period, assumes significance, for, there was no satisfactory explanation about the same. The relevant witnesses namely Pintu Kalai, Madhusudhan Debbarma, Fudulu Debbarma and Jinmoy Debbarma brought different stories about genesis of occurrence vis-a-vis their presence therein. Similarly, it also casts another serious doubt as to why Madhusudhan Debbarma did not divulge the names of assailants to the police at earliest opportunity, if I.O. is believed on that point. Situated thus, benefits is required to be given to the accused persons on the ground of certain doubts. Ld. Counsel, Mr. Debnath referred two decisions of Hon'ble Supreme Court rendered in Divakar Page 5

Neekantha Hegde V. State of Karnataka, [equivalent citation- AIR 1996 SC 3490, (1996) 10 SCC 236] and Umrao V. State of Haryana & ors., [Appeal (Crl.) 1387 of 1999 decided on 12.05.2006) to butress his submission that when two views are possible, benefit of doubt goes in favour of the accused."

Consequently, basing on the said findings, the learned trial court had

acquitted the accused-respondents from the charge levelled against them and

set them at liberty.

9. Law is well settled that, in the appeal against acquittal, the order of

acquittal should not be lightly interfered with by the appellate court, and the

appellate court, should give proper weightage and consideration to the views

of the trial court. Keeping the said principle in mind, we have considered the

findings made in para (17) and (18) of the judgment of the trial court, and we

find no irregularity or illegality in the order of acquittal passed by the learned

trial court.

10. PW-1, being eye-witness has filed the complaint. In the said complaint,

he has not stated about the involvement of the accused persons, in particular.

The overt act against each person is not mentioned but, the same is improved

in his evidence as PW-1. When there are two accused persons and a deceased,

the so-called weapon is bamboo stick, it is not clear as to who has beaten with

stick on which part of the body of the victim causing grievous hurt leading to

his death, and other accused kicking the victim on his body leading to his

death. Hence, no specific overt act is established and the benefit of doubt

needs to be in favour of the accused. Motive behind attack is also not

established.

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11. In the result, we find no merit in this appeal, and the same deserves to

be dismissed. Accordingly, this Criminal Appeal is dismissed and the acquittal

of the accused-respondents is hereby confirmed.

Send down the LCRs.

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

                     JUDGE                                             JUDGE




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