Sri Swapan Dey vs The State Of Tripura
2023 Latest Caselaw 257 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                    CRL. REV P NO.13 OF 2021

   1. Sri Swapan Dey,
   Son of Sri Kanu Dey,
   Resident of Muhuripur,
   R.F. P.O.- Muhuripur,
   P.S. Baikhora, District- South Tripura.

   2. Sri Rajib Dey,
   Son of Sri Kanu Dey,
   Resident of Muhuripur,
   R.F. P.O. Muhuripur,
   P.S. Baikhora, District- South Tripura.

                                      ......... Petitioner(s)
                    Vs.

   The State of Tripura.

                                             ....... Respondent(s)

For the Petitioner(s) : Mr. P.S. Choudhury, Advocate.

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

Date of hearing and delivery of Judgment & Order : 29.03.2023.

Whether fit for reporting : YES/NO.

HON'BLE THE CHIEF JUSTICE(ACTING)

JUDGMENT AND ORDER(ORAL)

This present criminal revision petition has been

filed under Section 401 read with Section 397 of the Code of

Criminal Procedure against the Judgment dated 25.02.2021

passed by the learned Sessions Judge, South Tripura, Belonia in

Criminal Appeal No.13 of 2018 affirming the judgment of

conviction and order of sentence dated 24.05.2018 passed by

the Court of learned Judicial Magistrate 1st Class, Belonia, South

Tripura in case No.PRC 273 of 2011 convicting the petitioners

under Sections 447/326/34 of IPC and sentenced them to suffer

Rigorous imprisonment for 2(two) months for the offence

punishable under Section 447 read with Section 34 of the IPC

and further sentenced them to suffer R.I of 2(two) years and to

pay a fine of Rs.5,000/-each for the offence punishable under

Section 326 read with Section 34 of IPC with default stipulation.

2. The brief fact of this present revision petition is

that on 05.07.11 at around 10 a.m. the accused persons

namely Swapan Dey and Rajib Dey encroached upon the land

of the informant Narayan Ch. Sen and tried to occupy it and on

seeing this when the informant raised objection, then a hot

altercation took place between them and suddenly both the

accused persons attacked the informant with 'dao' and 'lathi'

due to which he sustained severe bleeding injury on his left

hand and Subsequently he was shifted to Baikhora PHC for

treatment. Thereafter, the informant lodged FIR.

3. Based on said FIR, police registered Baikhora P.S.

Case No. 56/2011 under Sec. 447/326/34 of IPC and after

investigation finding prima facie case, S.I. Gopal Chakraborty

submitted charge sheet dated 23.09.2011 vide C/S No. 67/11

under Sec. 447/326/34 of IPC against accused Swapan Dey

and Rajib Dey.

4. After taking cognizance and supplying the

prosecution copies to the accused persons, charges under

Section 447 and 326 read with Section 34 of IPC have been

framed against accused Swapan Dey and Rajib Dey. The

accused persons denied the charges and claimed to be tried.

5. During trial prosecution examined as many as 11

witnesses and thereafter the accused-appellants were

examined under Section 313 of Cr.P.C., at which they denied

the incriminating materials, but adduced two defence witnesses

in support of their defence. After evaluating the prosecution

evidence, learned trial Court convicted both the accused

Swapan Dey and Rajib Dey under Section 447 and 326 read

with Sec. 34 of IPC and sentenced them as indicated above.

6. Being aggrieved and dissatisfied with the order of

conviction and sentence passed by the learned Judicial

Magistrate 1st Class, Belonia, South Tripura, dated 24.04.2019,

the accused-petitioners filed an appeal before the learned

Sessions Judge, South Tripura Belonia vide Criminal Appeal

No.13 of 2018. The learned Sessions Judge, South Tripura,

Belonia after hearing the argument of both sides dismissed the

appeal preferred by the accused herein vide judgment dated

25.02.2021 and affirmed the order of conviction and sentence

passed by the learned Trial Court.

7. Being aggrieved by and dissatisfied with the

judgment dated 25.02.2021 passed by the learned Sessions

Judge, South Tripura Belonia, the petitioners have preferred

this present revision petition praying for the following reliefs:-

" i) Admit the revision petition.

ii) Call for the records of case No.PRC 273 of 2011 from the Court of learned Judicial Magistrate 1st Call, Belonia, South Tripura and also the records of Criminal Appeals No.13 of 2018 from the Court of learned Sessions Judge, South Tripura, Belonia;

iii) Issue Notice upon the respondent;

iv) Suspend the order of conviction and sentence passed by the learned Courts below and release the accused petitioners on bail till final disposal of the revision petition;

AND

v) After hearing both the sides, set aside the impugned orders of conviction and sentence dated 25.02.2021 passed by the learned Sessions Judge, South Tripura, Belonia in Criminal Appeal No.13 of 2018 affirming the judgment of conviction and order of sentence dated 24.05.2018 passed by the Court of learned Judicial Magistrate, 1 st Class, Belonia, South Tripura in Case No.PRC 273 of 2011 and set the petitioners at liberty;"

8. Heard Mr. P.S. Choudhury, learned counsel

appearing for the petitioners as well as Mr. S. Debnath, learned

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

9. Mr. P.S. Choudhury, learned counsel appearing for

the petitioners submits that the finding of the learned Courts

below are based on mere surmise, conjecture, and supported by

evidence. Though the defence had adduced two witnesses on

their behalf who had categorically deposed that the wife of the

informant had told that the informant had received injuries while

cutting the jungles, but the learned Trial Court did not place any

reliance upon the evidence of the defence witnesses and, as

such, the learned Courts below has committed an error. All the

prosecution witnesses' statements are contradictory to each

other. The Doctor who was examined by the prosecution as

P.W.-11, opined that the injuries were simple in nature and the

same does not constitute any offence punishable under Section

326 of the IPC. Stating thus, learned counsel appearing for the

petitioners prayed to allow this instant revision petition.

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

State-respondents submits that the Judgment and order passed

by the Court below is just and proper and needs no interference.

11. Heard both sides and perused the evidence on

record.

12. Now let us discuss some important witnesses.

12.1. PW-1, Smt. Maru Bala Sen deposed that, on

05.07.2011 at about 10/11 a.m. she and her husband, Sri

Narayan Ch. Sen, were present in the house, at that time

accused Swapan Dey and Raju Dey entered their house armed

with 'dao‟ and „lathis‟ .On hearing the hue and cry of her

husband she rushed to the spot and found that her husband

was lying beside the temple and the accused persons dragged

him at the side of the temple. She also saw that both the

accused Swapan Dey and Raju Dey were chopping the hand of

her husband with „daos‟ due to which the left hand of her

husband was partially amputated from the joint and there was

profuse bleeding from his hand. On seeing her and her brother

Dibyendu Bhowmik, PW-3, who was also accompanied with her,

the accused persons got frightened and managed to escape

from there. Thereafter her husband was taken to Muhuripur

PHC by Babul Basu, PW-4, Priya Rn. Basu, PW-9 from there he

was referred to GBP hospital, Agartala, and on going to GBP

hospital her husband made a visit at Baikhora P.S.

During cross-examination, she stated that her

brother Dibyendu Bhowmik is a resident of Nalua which is

situated 25 miles away from her house. She admitted that one

rubber garden is there on the northern side of her house and

that four houses are located on the four corners of her land and

that the house of the accused persons is on the western side of

the road which runs by the western side of her house. She also

admitted that she did not state to the I/O that she was busy

performing Bipad Nashini Puja and that her husband and

brother Dibyendu Bhowmik were watching TV in the room.

Learned defence counsel further brought to light some

omissions of this witness in her police statement that she did

not state to I/O that her husband was in hot altercation with

the accused persons and she and her brother did not take note

of the fact the statement that accused Swapan Dey and Rajib

Dey dragged her husband behind the puja house and chopped

with a 'dao' on her husband's hand.

12.2. PW-2, Smt. Rinku Sen (Biswas) is the daughter of

the informant. According to her, on 05.07.2011 at about 10

a.m. she was returning home taking a shortcut way which

connects her father's house. On reaching in front of her father's

house, she heard an alarm from her father and immediately

rushed to the spot and found that accused Swapan Dey was

chopping her father with a 'dao' on his hand and the accused

Rakesh Dey and Rajib Dey were also standing there armed with

'dao‟ and 'lathi' in their hands. Meanwhile, her mother and one

Dibyendu Bhowmik reached the spot and they all saw that her

father was seriously injured and blood was profusely coming

out from his hand. Due to the chopping on his left hand with

the 'dao' by the accused Swapan Dey and Rajib Dey, the left

hand of her father was partially amputated from the joint and

his father also received 'dao' blow injuries on his back.

Thereafter Laxmi Dey, Uma Dey, Dipak Biswas and Sahdan

Biswas, and other local people came there and her father was

shifted to Muhuripur PHC by herself, Dibyendu Bhowmik and

Priya Ranjan Basu from where her father was referred to GBP

hospital, Agartala and admitted therein for a period of one and

half months. Then her father was further referred to Chennai

hospital since the left hand of her father was precarious. She

further deposed that at present the condition of her father's left

hand is pathetic and he is unable to perform his regular work

with this hand.

During cross-examination, she admitted that her own

house is located on the northern side of her parent's house and

the school of her son is on the western side of her house which

is at a distance of 2 k.m. from her house, but she cannot recall

the name of the villagers who came at the spot.

12.3. The evidence of PW-3, Sri Dibyendu Bhowmik is

the brother-in-law of the informant and his evidence shows that

on 05.07.11 at about 10 a.m. he was present in his sister's

house Maru Bala Sen, his sister (PW-1) and his sister was busy

in arranging Bipad Nashini Puja and his elder brother-in-law i.e.

the informant-cum-victim was behind the house doing some

works. At that moment he heard a mourning sound of the

informant and hearing the hue and cry, immediately, he rushed

to the spot along with his sister (PW-1) and saw that accused

Swapan Dey and Rajib Dey were armed with „lathis‟ and 'dao'.

Swapan Dey struck with a „dao‟ on the left hand of the

informant and Rajib Dey was standing there with „lathi‟ and

'dao' in his hand. At that moment his niece Rinku Sen (Biswas),

PW-2 also came there running from the other side of the house

and seeing all of them both the accused got frightened and

escaped from the spot and they saw that the left hand of the

informant was partially dis-joined due to the chopping by 'dao‟

and there was immense oozing of blood from the hand of the

informant. The informant also received 'dao‟ blows on his back

and soon after that 2/3 people came to the spot and bandaged

the left hand of the informant with a gamcha, then he (PW-3)

along with the younger brother of his niece took the informant

to Muhuripur PHC. But the doctor seeing the condition of the

informant referred him to GBP hospital, Agartala, and further

that on the way to GBP hospital, they visited to Baikhora P.S.

and report the matter. He also stated that in the GBP hospital,

the informant underwent treatment for one and a half months,

and from there the informant received treatment in Chennai.

He also identified both the accused persons in the dock.

12.4. PW-4, Sri Babul Basu being the son-in-law of the

informant deposed that on being informed by Priya Ranjan

Basu (PW-9) he visited the informant at Muhuripur PHC and he

had seen the left-hand of his father-in-law was bandaged by

Gamcha. He also heard that the accused herein has assaulted

the informant.

12.5 Both the P.W.-5 and P.W.6, saw the informant left

hand of the informant was bandaged with a piece of cloth and

there were blood stains on it.

12.6. P.W.-7 while cutting grass from her cow show the

accused running from the spot and also heard the alarm of the

informant.

12.7. PW-8, Sri Narayan Ch. Sen is the informant-cum-

victim of this case. He deposed that, on 05.07.11 at around 10

a.m., he was in his house along with his brother-in-law

Dibyendu Bhowmik and his wife Maru Bala Sen was doing puja

in the room and when he was doing his daily work in the house,

at that time accused-Rajib Dey and Swapan Dey entered in his

house to which he raised an objection. Both the accused who

were armed with 'lathi' and 'dao' assaulted him. Accused Rajib

Dey has given several lathi blows on his body and accused

Swapan Dey pulled him down on the ground and hit him with

the sharp side of a 'dao‟ on the back of his body and he has

also dealt a 'dao‟ blow on his left wrist due to which his left

wrist was partially amputated from the joint and it was in

hanging position from which blood also came out profusely.

Then he raised an alarm and cried for help. His wife and

brother-in-law came to the spot and in the meanwhile, his

daughter Rinku Biswas also came to the spot, and seeing all of

them both the accused escaped from the spot. Thereafter his

brother-in-law with the help of an Auto rickshaw took him to

Muhuripur PHC and in the PHC stitches were given to him and

was referred to GBP hospital. Then after hiring a Maruti van

being accompanied by Babul Basu and Dibyendu Bhowmik they

visited GBP hospital but on the way to GBP hospital they went

to Baikhora P.S. and reported the matter in writing which was

prepared by one Balan Chakraborty as per his dictation and he

proved his signature in the FIR as exhibit-2. According to him,

he was treated at GBP Hospital for a period of 45 days, and on

release from the GBP hospital, Agartala he made a private visit

to Vallore hospital for treatment. He further added that he is

unable to perform his daily work with his left hand.

During cross-examination, he admitted that a counter

case is filed against him by Tapash Dey for assaulting Rajib Dey

and Swapan Dey which was numbered as G.R. 272/11 and is

pending before Court. He also admitted that he stated to the

I/O that there is a dispute with the accused persons in respect

of land for 15 /20 years. He also admitted that the P.O. is

surrounded by the houses of people and there were members

inside those houses on the alleged date and time and the house

of Minu Shil is located on the southern side and the house of

Tapan Dey, Manik Sen, Mana Sen, Pradip Sen located on the

western side, house of Uma Dey and Laxmi Dey is on the

southern side.

12.8. Dr. Santanu Das (Medical Officer) was also

examined in this case as PW-11, and according to him, on

05.07.11 being posted as M.O. at Muhuripur PHC, at around

10.45 a.m. he examined the victim Narayan Sen who was

brought by his daughter Smt. Rinku Biswas with history of

alleged physical assault on his left wrist and back by his

neighbor at around 30 minutes back. On examination he found

three types of injuries; (I) Chop wound on the left wrist which

is grievous injury by heavy sharp weapon, (ii) Incised wound

on right scapular area which is simple in nature caused by

heavy sharp pointed weapon, (iii) Lacerated wound on right ear

lobule which is simple in nature caused by blunt weapon. He

also proved the injury report as exhibit-4 and his signature in

the report as exhibit-4/1.

During cross-examination, he admitted that he did not

give any information to the P.S. or that he cannot say whether

the patient party has informed the P.S. or not and that he

cannot give the final opinion of the patient.

13. The defence also adduced two witnesses in

support of their claims which are as follows:-

13.1. DW-1, Smt. Uma Dey deposed that about two and

half years back at around 10 a.m. she went to the field for

grazing her cattle and at that time she heard hue and cry of the

wife of the informant. Accordingly, she rushed to the house of

the informant and saw the hand of the informant was bandaged

and his wife told her that her husband had received the injury

when he went to cut the jungle. Subsequently, the wife of the

informant called a person who was working nearby the house,

and thereafter the informant was put in an Auto rickshaw and

removed to the hospital.

13.2 DW-2, Laxmi Dey deposed that about two and half

years back at around 11 a.m she went to the field for grazing

her cattle, and at that time she heard a loud noise of the wife

of the informant. Accordingly, she visited the house of the

informant and saw the hand of the informant was bandaged by

a piece of cloth, and subsequently, the wife of the informant

called two persons who were working nearby the house. She

also deposed that on asking the wife of the informant, she told

her that while the informant cutting the jungles he had

received injuries on his left hand and thereafter the informant

was put in an Auto rickshaw and removed to hospital.

14. Heard both sides and perused the evidence on

record.

15. As seen from the record, most of the witnesses

who in the early instance came to know about the said incident

or saw the incident were related witnesses to the informant.

Further as seen from their evidence, there are lot of

contradictions in their deposition. Further, the defence had

adduced two witnesses on their behalf who had categorically

deposed that the wife of the informant had told that the

informant had received injuries while cutting the jungles but

the same was not taken into consideration.

16. P.W. 11, that is the Doctor who examined the

informant-victim stated in his findings that he found 3(three)

types of injuries (I) Chop wound on the left wrist which is

grievous injury by heavy sharp weapon, (ii) Incised wound on

right scapular area which is simple in nature caused by heavy

sharp pointed weapon, (iii) Lacerated wound on right ear lobule

which is simple in nature caused by blunt weapon. If this

evidence is read properly it is seen that injuries are mostly

simple in nature.

17. In terms of the above discussion, this Court is of

the view that the offence as alleged to be committed by the

accused herein has not been established beyond the shadow of

doubt. Accordingly, this present revision petition stands allowed

and the impugned Judgment and order of conviction as passed

by the Courts below are set aside. Their bail bond, if any, be

discharged forthwith.

18. As a sequel, staying if any if vacated, pending

application(s), if any, stands closed.

CHIEF JUSTICE (ACTING)

suhanjit