Tripura High Court
Loknath Majumder @ Chotan vs The State Of Tripura on 5 August, 2024
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No.46 of 2023
Loknath Majumder @ Chotan
Son of Lt. Srimanta Majumder
of vill- Kali Krishnanagar,
P.S- Jatrapur, District- Sepahijala Tripura.
............... Appellant(s).
Versus
The State of Tripura
...............Respondent(s).
For Appellant(s) : Mr. S. Bhattacharjee, Advocate.
: Mr. Subendu Noatia, Advocate.
For Respondent(s) : Mr. Raju Datta, P.P.
Date of Hearing : 03.05.2024
Date of Judgment : 05.08.2024
Whether fit for reporting: No
_B_E_ F_O_R_E_
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
_J_ U_ D_ G_ M_E_N_T_
The appeal arises of the judgment of conviction and
sentence dated 12.09.2023 by Ld. Special Judge (Children‟s Court),
Sepahijala District, Sonamura in case No. Special (Children) No.01 of
2017.
[2] The date of birth of the appellant as per the record is
30.01.1999 and the alleged date of offence is 09.05.2016. Therefore, at
the time of alleged occurrence the appellant was about 17 years 3
months and 9 days for which after preliminary assessment conducted by
the Juvenile Justice Board and the case being transferred for trial by the
Children Court (Court of Sessions Judge, Sepahijala District), he was
tried by the Children‟s Court as the offence was a heinous one.
Indisputably, the alleged occurrence of offence was 09.05.2016,
therefore, Juvenile Justice (Care and Protection of Children) Act, 2015
(for short, JJ Act, 2015) is applicable in case of present appellant.
[3] Ld. Children‟s Court after trial convicted the appellant under
Section 341 and Section 304(Part-II) of Indian Penal Code (for short-
IPC) and was sentenced to suffer simple imprisonment for 1(one) month
under Section 341 of IPC and rigorous imprisonment for 7(seven) years
and to pay fine of Rs.5,000/-(Rupees five thousand) under Section
304(Part-II) of IPC and in default to pay the fine, to suffer further
simple imprisonment for 1(one) month.
[4] Allegations borne in the FIR lodged by the son of the
deceased, Parikshit Dhar namely Sri Sunil Dhar at Jatrapur PS on
9.5.2016, are that on that day at around 7:30 AM when his father
reached near the house of Kanu Shil (PW-2) by riding bicycle, the
appellant along with his other two brothers indiscriminately hit him with
„dao‟ and other instruments causing serious injuries on his person.
Immediately, he was taken to Kathalia CHC and thereafter he was
referred to GB Hospital, Agartala. After the incidents, those persons
were loitering near the house of informant armed with weapons. The
O/C Jatrapur PS initially registered the case as Jatrapur PS Case No.027
of 2016 under Sections 341/326/506/34 of IPC and ultimately filed the
charge sheet under Sections 341/302/34 of IPC, as on arrival at GB
Hospital, Agartala said Parikshit Dhar was found dead by the Medical
Officer.
[5] Ld. Children‟s Court framed charge against the appellant
under Section 341 of IPC as well as under Section 302, IPC to which he
chose trial denying the charges and prosecution thereafter examined
total 28 witnesses to prove the charges.
[6] Mr. Sankar Bhattacharjee, learned counsel of the appellant
submitted that the informant of the case was not examined and it was
also not there in the record as to how he had learnt about the incident.
Regarding the alleged confession of appellant made in presence of other
witnesses; it was argued that same had no evidential value inasmuch as
it was recorded in presence of the police. Referring to the evidence of
PW-13 Dr. Pranab Choudhuri (Autopsy Surgeon), Mr. Bhattacharjee,
learned counsel tried to impress the Court that as per the evidence of
said Medical Officer, the injuries could be caused otherwise than physical
assault. Lastly, Mr. Bhattacharjee, learned counsel submitted that there
was no recovery of any weapon of offence i.e. „Lathi‟ at the instance of
the appellant and, therefore, same created further doubt in the veracity
of the prosecution case.
[7] Mr. Raju Datta, learned PP, on the other hand, argued that
there was no substantial cross-examination to the prosecution
witnesses, more particularly PW.1, Monoranjan Das, PW-2, Kanu Shil,
PW-10, Sri Dilip Das and PW-23 Smt. Nanda Rani Paul, who were the
key witnesses of the occurrence. He also argued that there was no
explanation offered by the appellant during his examination under
Section 313 of CrPC in respect of the evidences brought against him by
the prosecution and, therefore, adverse inference was required to be
drawn against him. In this regard learned PP relied on a decision in
case of Rajkumar Vs. State of Madhya Pradesh, (2014) 5 SCC 353,
and the relevant paragraph thereof is extracted below:
"22. The accused has a duty to furnish an
explanation in his statement under Section 313 CrPC
regarding any incriminating material that has been
produced against him. If the accused has been given the
freedom to remain silent during the investigation as well
as before the court, then the accused may choose to
maintain silence or even remain in complete denial when
his statement under Section 313 CrPC is being recorded.
However, in such an event, the court would be entitled to
draw an inference, including such adverse inference
against the accused as may be permissible in accordance
with law. (Vide Ramnaresh v. State of Chhattisgarh(2012)
4 SCC 257, Munish Mubar v. State of Haryana (2012) 10
SCC 464 and Raj Kumar Singh v. State of Rajasthan
(2013) 5 SCC 722 )"
[8] Learned PP also submitted that non-examination of
informant was not fatal for the prosecution. In this regard, he relied on
another decision of the Apex Court rendered in Harivadan Babubhai
Patel vs. State of Gujarat, (2013) 7 SCC 45, wherein reference was
made to relevant paragraph No.24 which reads as under:
24. In State of H.P. v. Gian Chand(2001) 6 SCC 71 it has been
opined that: (SCC p.81, para 14)
"14. ... Non-examination of a material witness is again
not a mathematical formula for discarding the weight of
the testimony available on record howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the court levelled
against the prosecution should be examined in the
background of the facts and circumstances of each case
so as to find whether the witnesses are available for
being examined in the court and were yet withheld by
the prosecution."
The three-Judge Bench further proceeded to observe that the
court is required first to assess the trustworthiness of the
evidence available on record and if the court finds the evidence
adduced worthy of being relied on, then the testimony has to be
accepted and acted upon though there may be other witnesses
available who could also have been examined but were not
examined.
[9] From the evidences as surfaced by the prosecution, it
appears that several witnesses were examined in this case but the star
witnesses in this case appears to be PW-2, Kanu Shil and PW.23, Smti
Nanda Rani Paul. PW.2, Kanu Shil deposed that on the date of the
incident at around 7:30 AM the deceased came to him for his haircut,
but the witness asked the deceased to come sometimes later as he was
feeding his children. Shortly, thereafter he heard screaming sound of
the deceased and rushed towards that point and noticed that the
appellant with his other two brothers were beating the deceased with
„Lathies‟ causing bleeding injuries on him. He also tried to prevent the
assailants and raised hue and cry, but same was not heard by
neighbouring people and might be due to the noise of paddy crushing
machine, such cry did not reached others.
[10] He also stated that thereafter he found PW-9, Sri Sajal Das
of his village and requested him to bring an auto rickshaw to shift the
deceased to the hospital. Simultaneously, taking the bicycle of the
deceased, he also rushed to the house of the deceased and informed the
matter to his wife. Immediately, thereafter the wife and two sons of the
deceased arrived at the spot and PW-9 also brought one auto rickshaw
of PW-11, Sri Priyalal Das. Sri Priyalal Das thereafter with the assistance
of PW-1 Manoranjan Das and Maran Das and two sons of the deceased
shifted him to Kathalia CHC where the police also arrived and therefrom
he was referred to Melaghar SD Hospital. They thereafter by an
Ambulance shifted the deceased to the Melaghar SD Hospital and from
said hospital the deceased was referred to GBP Hospital, Agartala but
without proceeding further to Agartala, he returned to his village.
[11] In his cross-examination he confirmed that in his evidence
given earlier in connection with the case, he also named the appellant as
one of the assailants. One omission was taken by the defence from this
witness that he did not mention the name of weapon as "Lathi" used by
the assailants for the said physical assault. The topographical situation
of the place of occurrence was also tried to be taken from this witness.
He also stated in his cross-examination that Kalikrishna Nagar Market
was at a distance of 70/80 kms, (may be meters) and it was not visible
from the place of occurrence due to a turning point on the road and a
noise was difficult to be heard in the said market.
[ 12 ] PW-9, Sajal Das also corroborating with PW-2 stated that at
the relevant time hearing hue and cry of said Kanu Shil, he rushed to
the spot and found the deceased lying with bleeding injuries and there
he learnt that the appellant and his one brother physically assaulted the
deceased. Thereafter he went to Kalikrishna Nagar Market and brought
one auto rickshaw for shifting the deceased to hospital and accordingly
he was shifted to hospital. He was declared hostile by the prosecution
and during cross-examination by the prosecution he admitted that he
had stated to the police that he found the appellant and his two brothers
to beat an aged person with lathi and sticks and when he along with one
Dilip Das and Kanu Shil proceeded further, they found the victim to be
Pariskhit Dhar. In his cross-examination by the defence, he confirmed
that he had found the deceased lying on the road in unconscious
condition. However, he contradicted with PW.2 only to the extent that
according to him, Kalikrishna Nagar Market was visible from the place of
occurrence. According to him, subsequently marketeers also assembled
there. He also confirmed in his cross-examination that the auto rickshaw
which he brought was of one Priyalal Das, PW-11.
[13] PW-11, Sri Priyalal Das also corroborated that on that day at
the request of one person, he went to Adharsha Colony from the auto-
rickshaw stand of K.K. Nagar market and found another person lying
with bleeding injuries and immediately by his auto rickshaw he shifted
said injured person with the help of others to Kathalia hospital. One
omission was tried to be taken from him by the defence that he did not
state in his previous deposition in connection with this case that on the
relevant day he was at Kalikrishna Nagar Motor Stand. However, said
omission is not significant.
[ 14 ] PW-23 Smt. Nanda Rani Paul, another most vital witness,
stated that on the relevant day of incident at around 7:00/7:30 AM she
was proceeding for collecting milk from one Braja Paul and when she
reached near the residence of the appellant‟s brother, found the
deceased was also coming from the opposite direction by riding a bicycle
and there the appellant and his two brothers detained him on the road
and the present appellant with a piece of bamboo stick gave a blow on
him and consequently he fell down on the earth with his bicycle and
thereafter, three brothers severely assaulted him with bamboo sticks
causing bleeding injuries on his person. According to her, she thereafter
raised alarm and when the neighbouring people appeared there, the
assailants absconded. Then by an auto rickshaw the deceased was
shifted to the hospital. She identified the appellant in the court by his
nickname. In her cross-examination by defence she confirmed that she
had stated in her earlier evidence recorded in connection with trial of
other two accused that the appellant and his two brothers detained the
appellant on the road. She also confirmed that on the road connecting
both Rajendra Tilla and Kalikrishna Nagar, she found other two brothers
of the appellant quarrelling with the deceased. Basically there is no
significant cross-examination to disbelieve this witness; rather her cross
examination has further strengthen her examination in chief.
[ 15 ] PW-1, Sri Manoranjan Das another co-villager stated that at
the relevant day in the morning when he was going to Kalikrishna Nagar
Market, he heard commotion at the place of occurrence located at the
entrance point of the house of the appellant and found that the
deceased was lying there on the ground with bleeding injuries. He also
stated that he found PW-2, Sri Kanu Shil and another Smt. Mita Paul
present there and from PW-2 he learnt that the appellant and his two
brothers had physically assaulted the deceased. Thereafter he applied
his towel on the wounded portion of the head of the deceased and took
him to the Kathalia CHC with the help of others wherefrom he was taken
to Melaghar SD Hospital and then to GBP Hospital, but when he was
referred to GBP Hospital he expired.
[16] He also deposed about seizure of one bamboo stick, some
blood soaked soil sample and one pineapple leaf containing blood stain
by the investigating officer in his presence by preparing two different
seizure lists where he put his signatures. In his cross examination, he
also confirmed that in his previous deposition he gave similar version
regarding the incident as reflected above except with a small deviation
that earlier he told that he learnt the names of the appellant and his
brothers from some females present at the spot and not from said Kanu
Shil. According to him, first of all the deceased was taken to Jatrapur
Police Station and as per instructions of the police he was then taken to
the Kathalia Hospital at around 08:30 AM. Basically there is also nothing
to disbelieve this witness.
[ 17 ] According to PW-3 Smt. Sumitra Rani Paul, PW-10 Sri Dilip
Das, PW-12 another Monoranjan Das, and PW-21 Smt. Saraswati Dhar
(wife of deceased), they all came to the spot after the occurrence and
PW-3, PW-10, and PW-12 categorically stated about the presence of said
PW-2, Kanu Shil at the place of occurrence from whom they learnt that
the appellant and his two brothers had physically assaulted the
deceased. PW-21 also corroborated with said PW-2 Kanu Shil that after
the incident Kanu Shil came to her house and informed her about the
incident and thereafter she along with her two sons went to the spot and
found the deceased lying on the ground by the side of road with severe
bleeding injuries. Except the case of PW.10, there was no significant
cross-examination of any of these witnesses on the said points to
discard their evidences.
[18] The above said PW-3, Sumitra Rani Paul was declared
hostile by the prosecution and during her cross examination by the
prosecution, she admitted that she had stated to the Investigating
Officer that the appellant with other two brothers brutally assaulted the
deceased by lathi and dao and thereafter she raised alarm and when
both PW-2 and PW-12 arrived there, the miscreants fled away. Even if
said portion of her admission is ignored, still her evidence stands good
so far the presence of PW-2 in the place of occurrence is concerned.
[19] During cross-examination, PW-10 stated that Kalikrishna
Nagar Market is situated nearby the place of occurrence and there were
70/80 shops in the said market along with two rice mills owned by two
other persons. He also stated that his house was situated at a distance
of half mile from the place of occurrence and, therefore, his version that
at the time of incident, he was in his house and hearing outcry he came
to the spot, is found to be not much reliable. There was no significant
cross-examination of PW-12. Anyway the defence through their cross-
examination or otherwise could not render any of the above said
witnesses untrustworthy except said PW.10 as discussed.
[ 20 ] PW-27, Dr. Runak Debbarma deposed that on 09.05.2016
he examined the deceased at Melaghar SD Hospital being referred from
Kathalia CHC and after examining the deceased, he found blunt trauma
in his head and some swelling on the lower part of both eyes along with
bleeding from his nose and mouth. The witness also found multiple cut
injuries in the facial area of the deceased and blunt trauma on his back
and chest. The patient was vomiting due to such physical assault.
According to him, he also found cut injury measuring 4 cm X 5 cm in
size on the frontal region of head caused by sharp edged weapon and
thereafter he referred the patient to GBP Hospital, Agartala. According
to his opinion, the cut injury on the frontal of head and the swelling of
the lower part of both eyes were severe in nature and said head injury
was caused by sharp edged weapon and the swelling of both eyes were
caused by blunt edged weapon. He also proved his injury report (Exbt.
18). In his cross-examination he stated that such type of injury might or
might not be caused by such type of weapon (Exbt.MO-1) i.e. dao and
bamboo stick. This witness, therefore, was not sure about the weapon
used for causing such injuries.
[ 21 ] PW-13, Dr. Pranab Choudhuri (Autopsy Surgeon) stated
that he along with Dr. Prasenjit Das jointly conducted the post mortem
examination of the corpse of the deceased and found multiple lacerated
wounds in facial area of the deceased and also found multiple abrasions
in the face, chest and back of the deceased. According to him, the bone
deep lacerated wound found in the frontal area in midline which was
situated 8 cm above the glabella, another lacerated wound found
obliquely present over the outer aspect of right upper eye lid with sub-
scalp hematoma present in the right side of scalp, and other two
lacerated wounds found over the inner aspect of mucosal surface of
right side of upper lip causing fracture of maxilla and mandible were
sufficient to cause death in the ordinary course of nature individually or
in combination and all the injuries were found ante mortem and fresh in
nature.
[22] In his cross-examination by the defence, he confirmed that
this type of injury might be caused by lathi also (emphasis laid). Though
additionally he stated in his cross-examination that such type of injuries
were possible if a person riding a bicycle strikes against a standing tree
with maximum force only, but the defence could not raise any
probability of any such incident in the evidence of the case.
[23] The prosecution also examined one Dy. Collector-cum-
Magistrate namely Sri Prithwiraj Debnath as PW-24. He simply stated
that on 18.05.2016 he went to Jatrapur Police Station and there in
presence of other two witnesses the disclosure statement of the
appellant was recorded and he identified his signature therein. What was
disclosed by the appellant was not stated by him.
[ 24 ] PW-14, Sri Paltan Dey also stated that the disclosure
statement of the appellant was recorded by the then DCM of Sonamura
in his presence and after such statement was recorded the appellant
along with witnesses were taken to a site inside the Trishna Sanctuary
where the appellant with other accused persons took shelter after
commission of crime. PW-15 Sri Sajal Kumar Debnath, however,
deposed that the appellant had disclosed as to how he along with his
other two brothers physically assaulted the deceased in front of their
house and thereafter he was taken to place of occurrence where he
narrated the incident. In fact, above said evidences do not disclose any
facts leading to any discovery at the instance of the appellant.
[25] There are also some formal witnesses, like PW-19, Sri Asish
Majumder who was scribe of the FIR, PW-18, Sri Sunil Debnath and PW-
22 ASI Ashit Bhattacharjee who deposed about the seizure of viscera of
the deceased. PW-28, Suman Kumar Chakraborty (Dy. Director of State
Forensic Science Laboratory) stated that after examination he did not
find presence of common organochloro, carbamates and
organophosphorous group of pesticides and ethyl alcohol in said viscera.
[26] According to PW-22 ASI Ashit Bhattacharjee, on 09.05.2016
he was attached at GBP Town Out Post and he seized blood stain gauge
cloth belonging to the deceased by preparing the seizure list and also
seized viscera of the deceased by preparing another seizure list in
presence of the witnesses. The related seizure list of seizure of blood
stain gauge was marked as „Exbt.12‟ which shows that it was collected
at the time of post mortem examination by the doctor. PW-18, Sri Sunil
Debnath also corroborated about seizure of said blood stain gauge.
[27] PW-26 Dr. Sabyasachi Nath, Senior Scientific Officer-cum-
Assistant Chemical Examiner of Tripura State Forensic Science
Laboratory, Narsingarh deposed that he had examined the blood sample
of the deceased contained in plastic container in one gauge cloth and
seized wearing apparels of the appellant and his other brothers, three
broken pieces of bamboo sticks allegedly having blood stain seized from
place of occurrence, one pineapple leaf stated to have blood stain seized
from place of occurrence and one metallic dao with wooden handle
stated to have blood stain and seized from nearby the place of
occurrence. And after examination of all these materials, he came to
conclusion that human blood of „O‟ Group was found in jeans pant and
T-shirt of one brother of appellant and also in said broken bamboo
pieces, and the blood of the deceased as preserved in a gauge cloth was
also found in to be of „O‟ positive and except this no blood was detected
in other articles. Thus, his evidence also relates those bamboo sticks
with the incident of assault. However, in his cross-examination it was
made confirmed that no blood was detected in the three quarter pant of
present appellant.
[ 28 ] There are also some other formal witness like PW-16, PW-
17 and PW-20 who stood as seizure witnesses of seizure of wearing
apparels of the appellant and his brothers and also seizure of bamboo
sticks, pineapple leaves etc.
[29] The testimonies of two vital witnesses like PW-2 and PW-
23 and of some other witnesses who came to the spot just after the
incident as discussed earlier and also considering the injury report and
post mortem report of the deceased and the evidences of medical
officers proving those reports, are found to be sufficient to conclude that
the appellant was involved in the incident and was responsible for the
death of the deceased. Therefore, Ld. Trial Court committed no error in
convicting him. According to Ld. Trial Court, the appellant was aged
about 24 years at the time of pronouncement of the impugned
judgment.
[30] From the impugned judgment, it also appears that Ld. Trial
Court while sentencing the appellant ordered the Jail authority for taking
necessary steps as reformative measures like skill development,
counselling, behaviour modification therapy and psychiatric support to
the appellant. Simultaneously direction was also given to the Probation
Officer to submit periodical progress report of the appellant to the Court
in terms of the provisions of the JJ Act, 2015. Nothing could be shown
from the side of the appellant regarding any lapse from the side of the
Ld. Trial Court in due compliance of provisions of JJ Act, 2015.
Considering thus, it is held that the appeal is devoid of any merit
and accordingly, the same is dismissed. The judgment and sentence of
the Ld. Trial Court are hereby affirmed.
Return the LCRs with a copy of this judgment.
The disclosure of the identity of the appellant shall be regulated by
the relevant provisions of the JJ Act, 2015 in the follow up action by the
Registry.
Interim application(s), if any, stands disposed of.
JUDGE
SATABDI DUTTA DUTTA
Date: 2024.08.06 17:31:08 +05'30'
Riki
