Convict vs The State Of Tripura
2022 Latest Caselaw 551 Tri

                                Page 1 of 13


                     HIGH COURT OF TRIPURA
                            AGARTALA
                     CRL.A (J) NO.47 OF 2020

 Sri Kalipada Roy,
 S/o. Lt. Hemendra Chandra Roy,
 Of-West Gokulnagar, P.S. - Bishalgar,
 Dist- Sepahijala Tripura.

                                      ----- Convict-Appellant(s)
                                 Versus

 The State of Tripura.
                                               -----Respondent(s)

For the Appellant(s) : Ms. R. Purukayastha, Advocate.

For the Respondent(s) : Mr. S. Ghosh, Addl. P.P.

    Date of hearing and delivery of
    Judgment & Order              : 25.05.2022.

    Whether fit for reporting     : NO.




                        BEFORE
         HON'BLE MR. JUSTICE T. AMARNATH GOUD
          HON'BLE MR. JUSTICE ARINDAM LODH


               J U D G M E N T & O R D E R(ORAL)

(T. AMARNATH GOUD.J)

This instant appeal has been filed under Section 374 of

Cr.P.C. against the impugned judgment of conviction and

sentence dated 31.05.2019 passed by the learned Addl.

Sessions Judge Sepahijala District, Bishalgarh, in case No.

S.T.(T-1)08 of 2018 whereby and whereunder, the appellant

has been convicted under Section 302 of IPC and thereby

sentenced to suffer life imprisonment and to pay a fine of

Rs.5,000/- with default stipulation.

2. The facts in brief as surfaced in the plaint and relevant

to the fact of the case are that Biralal Sarkar, the victim, and

accused-appellant, Kalipada Roy are neighbours. On 23.06.17

in the night time, the accused appellant under the influence of

liquor abused the victim and his family members using slang

language. On 24.06.17 at around 6.30 a.m., the victim while

taking tea went to the house of the accused appellant and

asked him why he abused him and his family members using

slang language. The accused-appellant on seeing the victim in

his courtyard came out from his dwelling hut holding a 'dao'

and the accused appellant started assaulting the victim with

that 'dao'. On hearing hue and cry of the victim, the informant

Motilal Sarkar, his son Mridul Sarkar, his wife Rekha Sarkar and

Smt. Usha Sarkar, who is the wife of the victim rushed to the

house of the accused appellant and saw the accused-appellant

herein assaulting the victim with a 'dao‟. The accused appellant

on seeing the informant and others left that place holding that

'dao' in his hand. The victim sustained serious injuries due to

that assault. He was immediately shifted to AGMC & GBP

Hospital, Agartala where the Doctor on examination declared

the victim dead on arrival.

3. Thereafter on the 23rd day of June 2017 at 09.06

hours, Sri Motilal Sarkar, who is the brother of the deceased

lodged a written ejahar in Bishalgarh police station regarding

the incident. A formal case was registered in the P.S. and S.I.

Debabrata Biswas was endorsed to do the investigation. During

the investigation, the I.O. visited the P.O. prepared a hand

sketch map and separate index. He also recorded statements

under Section 161 of C.r.P.C. On completion of the

investigation, S.I. Debabrata Biswas of Bishalgarh police

station submitted the charge sheet against the accused-

appellant under Section 302 of IPC.

4. After receipt of the charge sheet, Ld. SDJM Bishalgarh,

West Tripura took cognizance of the offence and transferred

the record to the Court of Ld. Judicial Magistrate 1st Class,

Bishalgarh, West Tripura who after observing all legal

formalities committed the case to the court of Learned Sessions

Judge, West Tripura, Agartala.

5. After the commitment of the case to the Court of

Sessions, the Ld. Sessions Judge, West Tripura, Agartala

transferred the case record to the Ld. Addl. Sessions Judge,

Court No. 2, West Tripura, Agartala for its disposal in

accordance with the law.

6. On 26.03.2018, Ld. Addl. Sessions Judge, West

Tripura Agartala, (Court no. 2) after hearing the Ld. counsel of

both the parties and after considering the material on record

framed a formal charge against accused-appellant, Kalipada

Roy for an offence punishable under Section 302 of the Indian

Penal Code. The same was read over and explained to the

accused to which he pleaded not guilty to the said charge and

claimed to be tried.

7. During the trial, prosecution examined as many as

15(fifteen) witnesses which are as follows:-

(1) P.W.1, Sri Mridul Sarkar.

(2) P.W.2, Smt Gopa Choudhury.

(3) P.W.3, Hemalata Debbarma(WASI).

(4) P.W.4, Sri Motilal Sarkar.

(5) P.W.5, Smt Rekha Sarkar.

(6) P.W.6, Smt Usha Sarkar.

(7) P.W.7, Sri Partha Kumar Roy.

(8) P.W.8, Sri Satya bhusan Baishaya.

(9) P.W.9, Sri Suklal Sarkar.

(10) P.W.10, Sri Ashim Sarkar.

(11) P.W.11,Sri Thakurchand Sarkar.

(12) P.W.12, Dr.Subhankar Nath.

(13) P.W.13, Sri Debabrata Biswas.

(14) P.W.14, Sri Suman Kumar Chakraborty.

(15) P.W.15, Dr. Pranab Choudhury.

8. The prosecution has also exhibited some documents

(Exbt-1 to Exbt-13[iv]).

9. On the closure of the prosecution evidence, the

appellant was examined under Section 313 of Cr.P.C. to which

he denied to adduce any defence evidence on his side.

10. After hearing both the parties and perusing the

evidence on record, the learned Court below by the impugned

judgment dated 31.05.2019 convicted and sentenced the

accused-appellant herein as stated here-in-above.

11. Being aggrieved and dissatisfied with the aforesaid

judgment of conviction and sentence, the accused-appellant

herein has preferred this instant appeal and prayed for the

following reliefs:-

"i) Admit the appeal;

ii) Call for the record;

iii) Issue notice upon the respondent; and

iv) After hearing the parties be pleased enough to set aside the impugned judgment and conviction and sentence dated 31.05.2019 passed by the learned Addl. Sessions Judge, Sri A. Debbarma, Sepahijala District, Bishalgarh, in case No.S.T.(T-1) 08 of, for fair ends of justice otherwise the appellant would be seriously prejudiced."

12. Heard Ms. R. Purukayastha, learned counsel appearing

for the accused-appellant herein as well as Mr. S. Ghosh,

learned Addl. P.P. appearing for the State-respondent.

13. Ms. Purukayastha, learned counsel appearing for the

accused-appellant herein submitted that the learned Court

below held the convict-appellant to be guilty of the alleged

offense based on no evidence. She argued that the evidence on

record does not constitute the alleged offence and in no

manner implicates the convict-appellant herein in the

commission of the alleged offence. The presence of the convict-

appellant at the alleged place of occurrence and his alleged

participation in the commission of the alleged offence are

doubtful. Learned counsel further submitted that the learned

Trial Court has relied on the improved versions of the P.Ws

illegally and based on such improved versions, convicted and

sentenced the appellant only on surmise and conjecture.

Learned Trial Court below convicted the appellant without

properly examining him under Section 313 of Cr.P.C.

14. Mr. S. Ghosh, learned Addl P.P. appearing for the

State-respondent opposed the said submission of the learned

counsel appearing for the appellant herein and urged this Court

to uphold the judgment of the Court below.

15. It is the case of the prosecution that Biralal Sarkar,

the victim herein, and the accused Kalipada Roy, the accused-

appellant herein are neighbours. On 23.06.17 in the night time,

the accused in a drunken condition abused the victim and his

family members using slang language. The victim and his

family considering the condition of the accused did not protest

that night. But on the next morning i.e. on 24.06.17 at around

6.30 a.m. the victim while taking tea walked to the house of

the accused and called the accused. He asked him the reason

for abusing him and his family members using slang language

the previous night. The accused on seeing the victim came out

holding a 'dao' and started assaulting the victim using that

'dao'. The victim suffered serious injuries and cried for help.

Hearing the hue and cry, Motilal Sarkar who is the brother of

the victim and the informant in this case rushed to the place of

occurrence along with his son Mridul Sarkar, wife Rekha

Sarkar, and Usha Sarkar, wife of the victim. On reaching there,

they saw the accused-appellant assaulting the victim with a

'dao'. The accused on seeing the informant and other relatives

of the victim left that place holding that „dao‟.

16. P.W.4, the Motilal Sarkar, the informant herein

deposed that the accused is their next-door neighbour. On

23.06.17 in the night time, the accused-appellant abused the

victim using slang words without any reason. On that night, the

victim and his family members did not raise any objection

against such behavior of the accused but on the following day

i.e. on 24.06.17 at about 6.30 a.m. the victim went to the

house of the accused and asked him as to why on the previous

night accused abused him using slang language. PW 4 also

deposed that as soon as the victim asked the accused about his

indecent behavior, the accused-appellant became violent and

all of a sudden, the accused-appellant started giving blows to

the victims with a „dao‟. As a result, the victim received severe

injuries on different parts of his body, particularly on the hands

and neck. The victim fell on the courtyard of the accused-

appellant and hearing the hue and cry of the victim, PW 4

along with his son Mridul Sarkar, wife Rekha Sarkar, and Usha

Sarkar, w/o the victim rushed to the spot and saw the accused-

appellant assaulted the victim using a 'dao'. P.W. 4 further

deposed that the accused on seeing him and others left that

place carrying the 'dao‟ in his hand. He also deposed that he

followed the accused and on reaching the courtyard of one

Khitish Chowdhury there he met the wife of Khitish Chowdhury.

She told him that she had seen the accused-appellant fleeing

through their courtyard and he threw one blood-stained 'dao' in

their homestead land. PW 4 further deposed that he collected

the blood-stained 'dao' and wrapped it using a 'gamchha' and

returned home. He also deposed that his brother i.e. the victim

was immediately shifted to GBP Hospital, Agartala. He further

deposed that Police came to his house and he handed over the

'dao' to them. The same was seized in his presence and he

signed in the seizure list as a witness. He also deposed that he

lodged an ejahar about the incident in Bishalgarh PS on

24.06.17.

17. P.W. 1, Mridul Sarkar, P.W. 5, Rekha Sarkar, and P.W.

6, Usha Sarkar also rushed to the spot on hearing the hue and

cry of the victim and they witnessed the accused assaulting the

victim with a 'dao'. They also deposed that the accused on

seeing them left the spot carrying the 'dao'.

18. P.W.-2, Smt Gopa Chowdhury deposed that on

24.06.17 i.e. the day of the incident at about 7.00 a.m. she

saw the accused-appellant coming towards her house carrying

a blood-stained 'dao' in his hand. She also saw the accused-

appellant throwing that 'dao' in her homestead land and fleeing

away towards the east side through the courtyard of her house.

Further, she deposed that she saw P.W. 4, Motilal Sarkar

chasing the accused. She told Motilal Sarkar that the accused-

appellant fled away through the courtyard of her house in the

east direction. She further told Motilal Sarkar that she saw the

accused throwing a blood-stained 'dao' on her homestead land.

19. P.W. 8, Satya Bhusan Baishya is another witness who

saw the accused running away towards the eastern side of his

house carrying a 'dao' in his hand.

20. PW 12, Dr. Subhankar Nath who examined the

aforesaid seized articles in his report opined that the bloodstain

detected in the blood-stained gauze with mud and on the iron

'dao' are the blood samples of the deceased.

21. P.W. 13, S.I. Debabrata Biswas is the Investigating

Officer of this case and he testified before the Court and

formally stated the different stages that he completed in course

of the investigation. He also stated that on finding a prima facie

case he submitted the charge sheet against the accused.

22. PW 15 Dr. Pranab Chowdhury along with Dr. Jyothika

Debbarma and Dr. Prasenjit Das conducted Post Mortem over

the dead body of the victim and they found 5 different types of

injuries and in their report, they specifically stated that the

injuries at Sl. no.1, 4 & 5 were caused by the impact of a sharp

cutting object.

23. After perusing the evidence as on record and after

hearing learned counsel appearing for both the parties, we are

of the opinion that the accused-appellant herein caused injuries

upon the victim with the knowledge that it is likely to cause

death but whether the accused-appellant herein really intended

to kill the victim is not established. Here we may refer to

Section 304 of IPC which is reproduced herein-under:-

"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

24. In the present case, from the evidence of P.W.4,

Motilal Sarkar, P.W.- 1, Sri Mridul Sarkar, P.W. 5, Rekha Sarkar

and P.W. 6, Usha Sarkar it is established on record that the

victim in the morning of 24.06.2017 went to the house of the

accused-appellant to ask him as to why on the previous night

the accused-appellant abused him and his family in slang

language. Here it is pertinent to mention that the victim

himself went to the house of the accused-appellant herein to

enquire about the events of last night. To that, accused-

appellant got violent and caused injuries upon the victim with

'dao'. The subsequent event wherein the accused-appellant fled

from the place of occurrence and threw the blood-stained „dao‟

in the courtyard of P.W.2 which is corroborated by the

evidence of P.W.4 proves that the accused has knowledge that

his action of causing injuries upon the body of the victim is

likely to cause death upon the victim but whether he has actual

intention to cause death upon the victim is not established.

25. In the above circumstances, we are of the opinion that

in the instant case, the accused-appellant herein is guilty of

committing offence under Section 304 Part II of IPC.

26. Accordingly, the judgment and order of conviction

and sentence dated 31.05.2019, declaring the sentence against

the accused-appellant herein (Kalipada Roy) to suffer life

imprisonment is modified and reduced to 10 (ten) years under

Section 304 Part II of IPC.

27. With the aforesaid observation and direction, the

appeal stands partly allowed to the extent as indicated above.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

Send down the LCRs forthwith.

         (ARINDAM LODH,J)                 (T. AMARNATH GOUD,J)




      suhanjit