Sri Amit Deb @ Bapan Deb vs The State Of Tripura
2023 Latest Caselaw 609 Tri

                                Page 1



                  HIGH COURT OF TRIPURA
                             AGARTALA
                       Crl. A. (J) 5/2022
1. Sri Amit Deb @ Bapan Deb
son of late Sailen Deb, resident of South Barjala, P.S. New Capital Complex
District- West Tripura
2. Sri Ajit Sarkar
son of late Manindra Chandra Sarkar, resident of South Barjala, P.S. New
Capital Complex, District- West Tripura
3. Sri Litan @ Mona Nag
son of Sri Biswanath Nag, resident of South Barjala, P.S. New Capital
Complex, District- West Tripura
4. Sri Pankaj Sutradhar
son of late Biswambar Sutradhar, resident of South Barjala, P.S. New Capital
Complex, District- West Tripura
5. Sri Rajen Deb @ Raju
son of late Sailen Deb, resident of South Barjala, P.S. New Capital Complex,
District- West Tripura
6. Sri Ujjal Deb
son of Sri Ratish Deb, resident of South Barjala, P.S. New Capital Complex,
District- West Tripura
7. Sri Uttam Sarkar
son of late Parimal Sarkar, resident of Barjala, Kalyanpur Para, P.S. New
Capital Complex, District- West Tripura
                                                                  ----Appellants
             Versus
   The State of Tripura                                    ----Respondent

For Appellant(s)                :        Mr. PK Biswas, Sr. Advocate
                                         Mr. S. Lodh, Advocate
                                         Mr. P. Majumder, Advocate
For Respondent(s)               :        Mr. S. Ghosh, Addl. PP
Date of hearing                 :        02.08.2023
Date of delivery of judgment
& Order                         :        09 .08.2023
Whether fit for reporting       :        Yes / No
         HON'BLE MR. JUSTICE T. AMARNATH GOUD
          HON'BLE MR. JUSTICE ARINDAM LODH
                        JUDGMENT & ORDER
(Amarnath Goud, J)

Heard Mr. PK Biswas, learned senior counsel assisted by Mr. P.

Majumder, learned counsel appearing for the appellants no. 2 and 7 as well as

Mr. S. Lodh, learned counsel appearing for the respondents no. 1, 3, 4, 5 and 6.

Also heard Mr. S. Ghosh, learned Additional PP appearing on behalf of the

respondent-State.

Page 2

2. This appeal arises out of the judgment and order of conviction and

sentence passed in connection with case No. S.T.(Type-1) 54 of 2013 by the

learned Additional Sessions Judge, Court No. 2, West Tripura, Agartala,

whereby and whereunder the learned Additional Sessions Judge convicted the

appellants for commission of offences punishable under Sections 447, 149 read

with Section 323, Section 149 read with Section 302 of the IPC, and sentenced

them to suffer R.I. for one month for committing offences punishable under

Section 447 IPC, and they were further sentenced to suffer R.I. for six months

for committing offences punishable under Section 149 read with Section 323

IPC and they were also sentenced to suffer R.I. for life for committing offences

punishable under Section 149 read with section 302 IPC with default

stipulations.

3. Bereft of unnecessary details, fact of the case, brought on record, is that,

on 28.11.2008 accused Sujit Malakar when was walking on ripen paddy field of

the informant, the father of the informant raised objection for which accused

Sujit Malakar assaulted the father of the informant causing injuries. Thereafter,

on that day at about 6:00 p.m., Sujit Malakar alongwith others being armed

with sharp weapons entered into the house of the informant and damaged doors

and windows of the house and had assaulted the informant, Lal Mohan Sarkar,

Saraswati Sarkar and Dilip Sarkar causing bleeding injuries. Immediately after

the occurrence all the injured persons were taken to GBP hospital, but injured

Nirubala Sarkar succumbed to her injuries on that night.

4. The complainant, Ajit Das (PW-1) lodged a written complaint with the

Officer-in-Charge of West Agartala PS against Sujit Malakar, Raju Deb, Mona

Nag, Uttam Sarkar, Amit Deb, Ujjal Das and others, and the said complaint was

registered as West Agartala PS case no. 203 of 2008 under Sections 148, 149,

447, 326 of the IPC. Subsequently, section 302 IPC was added vide order dated Page 3

29.11.2008. The matter was investigated by the investigating officer. During

investigation, I.O. has also visited the place of occurrence, prepared handsketch

map of the PO with separate index and also examined the available witnesses.

The IO had also seized some articles by preparing seizure list, collected injury

report and the post mortem report alongwith forensic report and thereafter

submitted charge-sheet against 11 accused persons, namely, Sujit Malakar,

Uttam Sarkar, Rajen Deb @ Raju, Amit Deb @ Bapan, Litan nag @ Mona,

Ujjal Deb, Dipankar Roy @ Mantu, Pankaj Sutradhar, Hanipu Rahaman @

Sohel, Gopal Pal and Ajit Sarkar under Sections 148, 149, 447, 323, 324, 302,

427, 120B of the IPC against accused persons. Out of the 11 accused persons,

Sujit Malakar and Gopal Pal were shown as absconder and accused Dipankar

Roy and Hanipu Rehman being juvenile in conflict with law were produced

before the JJB. On receipt of charge sheet, learned CJM took cognizance of the

offences and subsequently the case was committed to the court of learned

Additional Sessions Judge, Court no. 3, West Tripura, Agartala. At the

commencement of trial, the learned Additional Sessions Judge had framed

charge against the present accused persons i.e. the appellants herein, under

Sections 148,149,323,324,447,427,302,120B of the IPC against the accused-

persons to which they pleaded not guilty and claimed to be tried.

5. During trial, the prosecution to establish the charges had adduced 16

witnesses and exhibited some documents. After closure of recording evidences,

the accused-persons were examined under Section 313 Cr.P.C. wherein they

denied all the allegations leveled against them by the prosecution witnesses and

denied to adduce any evidence on their behalf. After hearing arguments and on

examining the evidences and materials on record, the learned Additional

Sessions Judge had acquitted all the accused persons from the charge framed

against under Sections 148 and 427 of the IPC, but convicted them under Page 4

sections 447, 149 read with section 323 IPC and 149 read with section 302 IPC

and sentenced them as aforestated. Being aggrieved, the present appeal is

preferred by the appellant.

6. Mr. Biswas, learned senior counsel appearing for the appellants no. 2 and

7 has submitted that none of the prosecution witness has uttered about the

presence of the appellants no. 2 and 7 in the alleged place of occurrence. Mr.

Biswas, learned senior counsel also argued that PW-1, the complainant in his

deposition has stated that he did not see appellant no. 2, Ajit Sarkar with the

other accused persons at the time of commission of the offence. Learned senior

counsel also argued that PW-1 in his cross examination has stated that except

accused Sujit Malakar, no other accused persons had assaulted his mother. PW-

1 even did not utter a single word against appellant no. 7, Uttam Sarkar.

Learned senior counsel also pointed out that PW-2 also in his deposition did not

state anything adverse against appellants no. 2 and 7. Learned senior counsel

also has tried to assist this court throwing light to the deposition of PW-3, PW-

4, PW-6, PW-7, PW-8 and PW-9, wherein they have not stated anything

against appellants no. 2 and 7. Learned senior counsel has further argued that

none of the prosecution witnesses are trustworthy and there evidence has no

evidentiary value, hence, learned senior counsel has urged this court to set the

appellants, particularly, appellants no. 2 and 7 at liberty. In fine, learned senior

counsel has argued that without properly appreciating the evidences on record,

the learned trial court had convicted the appellants, particularly, appellants no.

2 & 7.

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

no. 1, 3, 4, 5 and 6 has argued that there are lots of contradictions between the

depositions of the prosecution witnesses. Mr. Lodh, learned counsel has argued

that according to PW-2 and 7, he are the eye witness to the alleged incident, Page 5

wherein PW-2 has stated that he has witnessed the entire incident from a nearby

jungle, but Mr. Lodh has pointed out that in the handsketch map alongwith with

index prepared by the I.O. there is no mention of any jungle. Further, PW-7 in

her entire deposition had named Sujit Malakar as the miscreants and she did not

depose anything against any of the appellants herein. Mr. Lodh, learned counsel

has also argued that PW-1, the complainant, in his complaint did not mention

the name of appellants no. 4 and 6. PW-1 has also in his deposition has deposed

that except Sujit Malakar, none of the accused-appellants had assaulted his

mother with rod. Learned counsel also has argued that as per PW-2 he was

informed by two persons regarding assault of his father by a knife, but he could

not name the persons who had informed him regarding such assault and those

persons were not brought on record as prosecution witness. Learned counsel

also has deposed that PW-7 is the eye witness to the alleged incident and this

witness during her deposition has stated that Sujit Malakar had assaulted her

mother with an iron rod as a result of which her mother sustained bleeding

injuries. PW-7 during her deposition before the Juvenile Justice Board did not

mention the name of any other accused except Sujit Malakar. Mr. Lodh, learned

counsel has further argued that the statements made by PW-3 before the learned

trial court was first-time statements which in other word be termed as improved

statements, and to that, Mr. Lodh has placed reliance upon Sajal Sarkar vs.

State of Tripura, reported in 2020 Cri.LJ 4704. Mr. Lodh, learned counsel has

further argued that PW-6, except the name of Sujit Malakar, did not utter a

single word against the other accused person. Further, Mr. Lodh has argued that

PW-7, claiming to be an eye witness to the alleged incident also stated nothing

against the other accused-appellants except that of Sujit Malakar to have

committed the alleged crime. Lastly, Mr. Lodh, drawing the discrepancy

between the deposition of PW-2 regarding witnessing the incident from a Page 6

jungle to the absence of any jungle shown in the handsketch map alongwith

index prepared by the I.O., has placed reliance on Regulation 273 of Police

Regulation of Bengal, has urged this court to set the accused appellants at

liberty since nothing could have been established against them.

8. On the other hand, learned Additional PP appearing for the respondent-

State 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.

9. 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.

10. In the instant case, according to the prosecution, the injured persons are,

Lal Mohan Sarkar (PW-13), Manoranjan Sarkar (PW-8), Smt. Nirubala Sarkar

(dead), Ajit Sarkar (PW-1, complainant), Saraswati Sarkar (PW-5), and, Dilip

Sarkar (now examined as prosecution witness). According to the prosecution,

Indrajit Sarkar (PW-2) and Ruma Sarkar (PW-7) are the eye witnesses. So, this

court feels it necessary to analyze the depositions of these prosecution

witnesses.

PW-1, Ajit Sarkar is the complainant of this instant case. In his deposition

only stated that Sujit Malakar had assaulted his father Lal Mohan Sarkar

on 28.11.2008 at about 2/2.30 pm when he was going to their paddy land

and thereafter when his father raised alarm he and his brother (PW-2) went

to the paddy field and took their father to hospital. He also deposed that on

the same day at about 7/7.30 pm Sujit Malakar alongwith other miscreants

came to their house and assaulted his wife, mother, father and his

neighbour and other accused persons struck his mother by lathi and rod on

the back side of her head. He further deposed that the accused persons tried

to assault him, his brother and his sister but they somehow managed to Page 7

escape. He further alleged that in the night, his mother succumbed to her

injuries at GBP hospital and thereafter, he lodged the FIR. PW-1, also

deposed that he did not see accused Ajit Sarkar in their house.

In cross examination, PW-1, stated that he did not mention the name of

Ajit Sarkar in the FIR. PW-1 also stated that during his deposition before

Juvenile Justice Board, he did not utter a single word against any of the

accused persons except Sujit Malakar. PW-1 also stated that in the FIR he

did not mentioned the name of accused Ujjal Deb and Pankaj Sutradhar. In

his cross examination, PW-1, stated that except Sujit Malakar, none of the

accused persons had assaulted his mother.

PW-2, Indrajit Sarkar, deposed in the same tune to that of PW-1. He has

further stated that he and his brother saved themselves by taking shelter

inside a nearby jungle and from the jungle he saw the accused persons to

assault his family members. PW-2, in his deposition stated that he saw

accused Amit Deb and Raju Deb to hold hands of his mother and accused

Sujit Malakar to give a blow on his head. He also deposed that he saw Raju

Deb and Amit Deb and others to damage their dwelling huts. PW-2 also

deposed that the accused persons tried to assault his younger sister but she

save herself by entering into their dwelling hut. He further deposed that the

accused persons had assaulted his sister-in-law, PW-5,

In cross-examination, PW-2 deposed that he has stated to the I.O. that

his father himself returned home from the place of occurrence with a view

to go to hospital for treatment.

PW-3, Saraswati Sarkar (Das) in her deposition deposed in the same

tune to that of the PW-1 and PW-2. She has further stated that she was

being assaulted by the miscreants and the miscreants also assaulted Page 8

Manoranjan Sarkar. She had also deposed that she did not tell anything

against accused Ajit Sarkar.

In her cross-examination, PW-3 stated that she did not tell to the I.O.

during her examination under section 161 CrPC that after the incident her

husband and younger brother in law rushed to the spot and arranged for

shifting her injured to hospital. She also in her cross examination stated

that she did not tell the I.O. during her examination under Section 161

CrPC that accused Amit Deb and Raju Deb hold the hands of her mother in

law and accused Sujit Malakar gave blow on the head of her mother in law,

and the said deposition was confirmed by the IO wherein the IO has

admitted that the said statement is absent in her examination under Section

161 CrPC. Further, when this witness was confronted with her statement

recorded under Section 161 CrPC that she lost her sense after being

assaulted by the miscreants, such statement is found absent. Further, PW-3

in her cross examination has stated that she did not tell the I.O that she

could have identified Amit Deb, Raju Deb, Mona Nag and Uttam Sarkar at

the time of occurrence. This witness also deposed that she did not tell

anything before the JJB during her deposition that accused Raju Deb and

Amit Deb caught hold of the hand of her mother in law. She also affirmed

that she do not know accused Ujjal Deb, Pankaj Sutradhar and other

accused persons by name.

PW-5, Saraswati Sarkar, who according to PWs 1, 2, 3 and 6 was

assaulted by the miscreants, had deposed nothing relevant to the instant

case and nothing could be revealed from her cross examination.

Nothing materials could have been elucidated from the deposition of PW-

6. PW-6 in her cross examination only stated that she could not identify the

miscreants due to insufficient light at the place of occurrence. When this Page 9

witness was confronted to her previous statement under Section 161 CrPC

that she saw accused Sujit Malakar to give a blow on the head of her

maternal aunt and also saw the other miscreants to assault PW5, PW-8 and

PW-13, such statements were found to be absent.

PW-7, claiming herself as eye witness to the alleged incident witnessing

the entire incident from her dwelling hut, deposed in the same tune to that

of PW-1 and PW-2, but she did not utter a single word against the present

accused appellants except Sujit Malakar.

During her cross-examination, PW-7, told that during her deposition

before JJB, she only named Sujit Malakar who killed her mother. When this

witness was confronted to her previous statement recorded under Section

161 CrPC that she told the IO that the miscreants had threatened her to kill

and that they damaged the windows of the room, was found to be absent.

Nothing materials could have been elucidated from the deposition and

cross examination of PW-8, who claimed to be one of the injured persons of

the alleged incident.

PW- 9 and PW-11 are hearsay witnesses.

PW-10, is the Medical Officer who had conducted post mortem

examination over the dead body of the deceased, who deposed that the

injury was antemortem in nature and was due to impact of hard and blunt

object.

PW-12, is the Senior Scientific Officer of SFSL, Tripura who had

conducted the biological examination.

PW-13, is the victim of the alleged incident and father of PW-1, 2 and 7

and nothing material could have been elucidated from his deposition.

PW-14 is the Medical Officer who had examined PW-5.

Page 10

PW-15, is a seizure witness.

PW-16, is the IO who after investigation has submitted the charge sheet.

11. On appreciation of the evidences of PW-1, PW-2, PW-3, PW-5, PW-7

and PW-13, the involvement of the present accused appellants is not well

established. PW-2 and PW-7, though claimed to be eye-witnesses of the alleged

incident, but their deposition had contradicted to their statements recorded

under Section 161 CrPC. Further, PW-1, being the complainant did not state

anything against any of the appellants except Sujit Malakar. He stated that only

Sujit Malakar had assaulted his mother. Similarly, the other witnesses also did

not named the present accused-appellants to be involved in the alleged offence

except Sujit Malakar. PW-2, an eye witness to the alleged incident in his

deposition deposed that he saw Raju Deb and Amit Deb and hold the hands of

his mother and Sujit Malakar to hit a blow on her head, but, another eye witness

i.e. PW-7 did not depose anything regarding Amit Deb and Raju Deb. PW-7

only stated that Sujit Malakar had entered into their house and assaulted her

family members. Further, prior to their deposition, PW-1, PW-2, PW-3 and

PW-7, have deposed before the Juvenile Justice Board relating to the instant

case wherein they did not depose anything regarding involvement of any of the

accused-appellants in the instant case except accused Sujit Malakar. Thus, there

appears to be contradictory statements of the prosecution witnesses,

particularly, statements of PW-1, PW-2, PW-3, PW-5 and PW-7, which is

sufficient to destroy the credibility of the prosecution case.

12. Further, in the said complaint, PW-1 has stated about the involvement

of the accused persons, in particular, but during his cross examination, PW-1

except one Sujit Malakar, did not mention involvement of any other accused

persons. Similarly, the other witnesses also did not utter regarding involvement

of any accused appellants, except Sujit Malakar. The overt act against each Page 11

accused person is not mentioned but, the same is improved in the evidence of

PW-2, PW-3, and their evidences have been discarded by the evidence of

another eye witness i.e. PW-7, who in her evidence did not utter a single word

against any particular accused appellant except Sujit Malakar. Further, PW-1

and PW-2 when were confronted with their earlier statement recorded under

Section 161 CrPC that both of them rushed to the spot and saw their father

lying on the ground with bleeding injuries and subsequently they took their

father to their home, was found to be absent in their statement recorded under

Section 161 CrPC. PW-3 in her cross examination when was confronted to her

earlier statement recorded under Section 161 CrPC that accused Amit Deb and

Raju Deb hold the hands of her mother in law and Sujit Malakar gave a blow

on the head of her mother in law, was found to be absent in her previous

statement recorded under Section 161 CrPC. Further, when this witness was

confronted to her statement recorded under Section 161 CrPC that some of the

miscreants struck her from her back side was also found absent in her earlier

statement recorded under Section 161 CrPC. PW-3 also in her cross

examination adduced that she did not tell the IO that she could identify Amit

Deb, Raju Deb, Mona Nag and Uttam Sarkar, but during her deposition she had

named and identified the accused persons, and the same implies as first time

statement before the learned court. PW-13, was the injured, and according to

the complainant (PW-1) PW-13 was assaulted in the paddy field, but PW-13

failed to mention the name of the accused who had assaulted him. Similarly,

PW-7 is the eye witness, but, she in her deposition failed to establish any

involvement of the accused appellants in the alleged incident. PW-3 when was

confronted to her earlier statement recorded under Section 161 CrPC that the

miscreants had threatened her and also damaged the windows of the room, was

found to be absent.

Page 12

13. Mr. Lodh, has argued that as per deposition of PW-2, he has witnessed

the incident from a jungle, but the I.O. in his handsketch map alongwith index

did not mention anything regarding the jungle. Mr. Lodh, has submitted that a

map shall accompany the charge sheet and the same are useful in criminal

investigation and prosecution. A scene of crime is the place where a particular

crime has been committed or where physical evidence of such crime is found.

As per testimony of the complainant/victim, the I.O. shall prepare the

handsketch map alongwith index and will submit with the charge sheet. In the

instant case, in the index/handsketch map there is no indication of any jungle as

averred by PW-2. In this regard, it would be preferable to refer Regulation 273

of Police Regulation of Bengal, which reads as under:

"Map or plan to accompany charge sheet in certain cases. * 12, Act V, 1861.+ 273. (a) A map or plan shall always accompany the charge - sheet in cases of murder, dacoity, serious riot, mail robbery, highway robbery, extensive burglary or theft where Rs. 600 or more are stolen. Ordinarily, maps will not be required in cases other than those mentioned above; but the investigation officer may, at his discretion, prepare and send up a map in any other case. The map shall be prepared at as early a stage of the investigation as possible.

(b) The map shall, if possible, be drawn to scale, but this is not essential. If not drawn to scale, the fact shall be noted clearly on the map.

( c) The draughtsman or investigating officer who prepares the map shall bear in mind that it is essential for a correct appreciation of the situation by the court and jury that a clear distinction should be made between (i) facts actually seen by the draughtsman himself and

(ii) facts deposed to only by witnesses. Statements made by' the draughtsman as to the first group are always relevant; his statements as to the second are prima facie inadmissible and cannot be used as primary evidence to go to the jury.

It is necessary to maintain a suit able distinction in the map between these two sets of facts. This distinction shall be effected as follows : -

(i) The objects actually seen by the person preparing the map including such permanent features as buildings,. trees, roads, paths and tangible points connected with the case, such as blood stains, foot-prints, cloth and corpse, etc., actually seen by him shall be indicated by letters of the alphabet, A, B, C, D, etc., explanations of these letters being given preferably in the margin of the map, but if this cannot be conveniently done, the explanations shall be furnished on a separate sheet of paper attached to the map.

(ii) Particulars derived from witnesses, e.g., the place where witness X is said to have stood, where the accused is said to have been standing when seen by X, where the blow was struck, etc., shall be indicated on the map by the numbers I, 2, 3, 4, etc, The explanations of these numbers, however, shall on no account be given on the face of the map or on the separate sheet of paper referred to above, but on another sheet of paper distinct from either the map or the list of explanations of the actual facts indicated by letters.

(d) The number if the case and the name of the accused shall be given at the top of the map and the signature of the person who prepared it at the foot . Use should always be made of cadastral and other maps, where they are available and are of sufficiently large scale.

(e) The draughtsman or the investigating officer who prepared the map shall be produced a s a witness at the trial."

14. On the peculiar facts and in the circumstances of the case it can be safely

concluded that the appellants did not share common object of one of the Page 13

members of the alleged unlawful assembly to cause death of Nirubala Sarkar.

The appellants cannot be reasonably attributed with knowledge that there was

likelihood of commission of murder. Further as already stated above, all the

witnesses have given contradictory versions as to who gave the fatal blow to

deceased Nirubala Sarkar, and who had caught hold of the hands of the

deceased, and the same amounts to material contradictions. It is reiterated that

the testimony of PW-1 is inconsistent with the testimonies of PW-2, PW-3,

PW-6 and PW-7. Under the circumstances, this Court is of the opinion that the

conviction of the appellants recorded by the learned trial court under Sections

for causing death of deceased Nirubala Sarkar by the present appellants is not

well-founded and is liable to be set aside.

15. Keeping in view the aforesaid principle, this Court would hold that in the

present case, there are material discrepancies in the testimonies of the witnesses

and the same is fatal to the case of the prosecution. The prosecution has thus

failed to prove the guilt of the accused-appellants beyond reasonable doubt. In

the present case, owing to the substantial and material contradictions in the

testimonies of the prosecution witnesses, the evidence of the prosecution is

considered wholly unreliable. Additionally, the prosecution has examined only

related witnesses and not a single independent witness who can support the

prosecution case. Therefore, in the facts and circumstances of the case, the

evidence does not prove the alleged offences of murder against the accused-

appellants. In our view, the Trial Court has failed to take into consideration, the

vital discrepancies and inconsistencies in the evidence of the prosecution

witnesses, and therefore, the trial Court was not justified in recording the

judgment and order of conviction under section 302 IPC.

16. However, from the record it is evident that prior to the alleged incident,

the prime accused, Sujit Malakar was assaulted by the PW-1 and PW-2 in the Page 14

agricultural land relating to a land dispute between them, and out of rage, said

Sujit Malakar had committed the said offence. The mother of the complainant

was hit by Sujit Malakar by a rod, as alleged, but that rod was only 2 ft. in

length and not a sharp cutting weapon. In the instant case, the alleged crime

was caused out of rage. The question then is what offence has been committed

by the person who caused the injury on the head and what offence has been

committed by the other two appellants, i.e. Amit Deb and Raju Deb, who

allegedly have caught hold of the hand of the deceased. It is contended by

learned counsel for the appellants that the person who caused the injury on the

head could not be held guilty of murder under Section 302, I. P. C., but must be

held guilty of culpable homicide not amounting to murder under Section 304,

IPC, and that the other two accused, having regard to the common intention of

them all, which was merely to beat the deceased, could not be held guilty either

of murder or of culpable homicide not amounting to murder but only of causing

simple injuries. Culpable homicide is of two kinds, culpable homicide

amounting to murder and culpable homicide not amounting to murder. It is,

therefore, necessary first to examine the sections themselves.

"Section 299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

2ndly-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- 3rdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

4thly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1- When culpable homicide is not murder- Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:--

Page 15

First --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly --That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3: Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4: Culpable homicide is not murder if it is committed without pre- meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

17. Here, the intention of the appellants for causing an injury 'likely to cause

death' and its consequence was not foreseen. The alleged incident had taken

place out of rage between two parties. It is not necessary that the appellants

should have the knowledge that the injury they intend to cause will be sufficient

in the ordinary course of nature to cause death. In the present case the injury

sustained by the deceased was sufficient in the ordinary course of nature to

cause her death. The presumption is that the intention to cause the injury was

by giving a blow on the head of the deceased. The motive was to take revenge

on the family members of the complainant for having assaulted the prime

accused, Sujit Malakar, prior to the alleged incident, but the motive was not

strong enough for causing death of the deceased. Even if the accused did not

have the intention of causing death, they certainly had the intention of beating

the deceased. In the absence of any definite evidence that the intention of

giving the blow was confined to cause simple hurt or grievous hurt or an injury Page 16

likely to cause death, the presumption of intention drawn from the nature of the

injury actually caused remains unshaken. It must, therefore, be held that the

person who actually caused the injury on the head was guilty of murder as

defined in Clause (3) of Section 300, which says that if it is done with the

intention of causing bodily injury to any person and the bodily injury intended

to be inflicted is sufficient in the ordinary course of nature to cause death. In

the instant case there is nothing to show that the intention of hitting the victim

was merely confined to causing simple hurt or grievous hurt or an injury likely

to cause her death. It is true that Sujit Malakar inflicted simple injuries on the

head of the deceased by a 2 ft. long iron rod. The intention of the other two

persons i.e. Amit Deb and Raju Deb, cannot be ruled out because under Section

34 when a criminal act is done with the common intention of all, everyone is

responsible for the entire act.

18. From the entire deposition and the materials on record, it is clear that

there was an unlawful assembly in the courtyard of the complainant leading to

some chaos, but involvement of the present appellants for the commission of

offence under Section 302 IPC, creates serious doubt to this court.

Consequently, the offence against the present appellants under Section 302 has

also been converted to section 299 and 300 IPC. Basing on the entirety of the

facts and circumstances regarding holding of hands of the victim by the

appellants, Amit Deb and Raju Deb, cannot be ruled out, so they are also found

to be guilty for the offences punishable under Section 120(B) read with Section

299 and 300 IPC.

19. If, however, we conclude that the common intention was to give simple

hurt or grievous hurt or an injury likely to cause death, then the mere fact that

one of them has actually caused an injury sufficient in the ordinary course of

nature to cause death would be immaterial and the persons who actually did not Page 17

cause the fatal injury would not be guilty of murder but would be guilty of

causing simple hurt or grievous hurt or of culpable homicide not amounting to

murder. The reason is that the person who caused the fatal injury, caused it

either accidentally without intention of causing such injury, or, exceeded the

common intention of causing an injury of that nature. If he caused the injury

without the intention of causing the injury sufficient in the ordinary course of

nature to cause death, he would not be guilty of murder under Section 300, and

if he could not be held guilty of murder, his associates too could not be held

guilty of murder. In the instant case, there is no concrete evidence which could

establish the intention of the appellants to cause the death of the victim,

Nirabala Sarkar. Therefore, we hold that the acts of provocation on the basis of

which the appellants caused the death of the deceased was both sudden and

grave and that there was loss of self-control. Thus, it could safely be said that

the said act of the appellants amount to culpable homicide not amounting to

murder, and accordingly, applying the provocation exception, we would

convert the conviction of the appellants from Section 302 to Part I of Section

304 of the IPC. This court is inclined to convert the offence under Section 302

IPC to Section 299 and 300 IPC. The punishment for the offence of culpable

homicide not amounting to murder is prescribed in Section 304 Part I of the

IPC which reads as follows:

"304. Punishment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder, shall be punished with 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."

20. From the entirety of the materials and evidences on record, this court

finds that the appellants, namely, Amit Deb and Raju Deb as guilty in

participating in the crime alongwith prime accused Sujit Malakar by holding Page 18

the hands of deceased Nirabala Sarkar, for which they are also liable to be

convicted for the offence of culpable homicide not amounting to murder as

prescribed under Section 304 Part I of the IPC. However, with regard to the

sentence, we are inclined to modify the sentence of imprisonment suffered by

the appellants, Amit Deb and Raju Deb, to the period already undergone. As we

have said earlier that the appellants Ajit Sarkar and Uttam Sarkar deserve clear

acquittal from the charges leveled against them, and the appellants, namely,

Litan @ Mona Nag, Pankaj Sutradhar and Ujjal Deb, are also entitled to be

acquitted since the charges leveled against them have not been proved beyond

reasonable doubt. Accordingly, all the appellants in the instant appeal, except

Sujit Malakar, the prime accused, are directed to be released forthwith, if not

required to be detained for any other case.

Consequently, the appeal filed by the appellants-accused is partly

allowed and the impugned judgment dated 19.01.2022 passed by the learned

Additional Sessions Judge, Court no. 2, West Tripura, Agartala, Court is hereby

quashed and set aside.

Since the prime accused, Sujit Malakar, is found to be an absconder till

date, the police of the concerned police station is directed to initiate every

possible steps for causing his arrest at the earliest.

Send down the LCRs.

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

             JUDGE                                            JUDGE




SAIKAT Digitally signed
       by SAIKAT KAR

KAR    Date: 2023.08.10
       13:48:56 +05'30'