Tripura High Court
Sri Ramu Roy Barman vs The State Of Tripura on 6 September, 2024
Page 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
Crl.A(J) No.19 of 2024
Sri Ramu Roy Barman,
S/o. Sri Tapan Roy Barman
Resident of Gokulpur, Ward No.3,
P.S. R.K. Pur, Dist. Gomati Tripura.
......Appellant(s)
Versus
The State of Tripura.
......Respondent(s)
For Appellant(s) : Mr. S. Das, Legal-Aid-Counsel.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of Hearing & : 06th September, 2024.
Judgment
Whether fit for reporting : YES NO
√
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER (ORAL)
Heard Mr. S. Das, learned legal aid counsel for the
appellant. Also heard Mr. S. Ghosh, learned Addl. P.P. for the
respondent-State.
[2] The judgment under challenge in this appeal is the
judgment of conviction dated 16.08.2023 and consequent
sentence passed on 17.08.2023 by learned Additional Sessions
Judge, Gomati, Udaipur in Sessions Trial(Type-I) No.42 of 2021
whereby the appellant was convicted under Sections 307 and 326
of Indian Penal Code(for short IPC) and was sentenced to suffer
rigorous imprisonment for 5(five) years with fine of Rs.5,000/-
under Section 307 IPC and in default to pay the fine, to suffer
simple imprisonment for 4(four) months and also to suffer rigorous
imprisonment for 3(three) years and to pay the fine of Rs.3,000/-
under Section 326 of IPC and in default of payment of fine, to
suffer simple imprisonment for 3(three) months. Both the
sentences were directed to run concurrently.
[3] The allegations unfolded through the F.I.R lodged by
one Smt. Archana Datta, on 13.06.2020 at Radhakishorepur Police
Station are that marriage of her daughter Smti Pinki Dutta [PW.3]
was solemnized with the appellant in the year 2010 and after 3/4
years of such marriage, at the instance of mother of the appellant,
he started causing torture upon the victim on demand of
Rs.50,000/- and in default of meeting such demand intensity of
the torture was increased day by day and ultimately, on
10.06.2020 at about 12 p.m. in the noon both the mother and son
tied up the victim by a cloth with the cot after closing the door and
brutally assaulted her physically with an intention to kill her and on
her outcry, the locals rescued her and took her to District Hospital,
Tepania.
[4] The Police Authority registered the case under Sections
498A, 109 and 307 of IPC and also laid the charge sheet under the
above said provisions after completion of investigation. Learned
Trial Court framed charge under Sections 498A and 307 IPC and
also under 326 IPC. The appellant denied the charges. Finally,
learned Trial Court acquitted the accused appellant from the
charge under Section 498A IPC and convicted him under Sections
307 and 326 IPC as indicated above.
[5] During trial, the prosecution examined total 10
witnesses out of which, PW.1, Smti. Kajali Dey, is sister-in- law of
the victim from her in-laws side and PW.2, is her mother. The
victim was examined as PW.3, and the Medical Officer who treated
the victim was examined as PW.10. They are the prime witnesses
of the prosecution case.
[6] Mr. S. Das, learned legal aid counsel strenuously argues
that the Medical Officer specifically stated that the injuries caused
upon the victim was by blunt object and therefore, Section 326
IPC was not applicable in this case and moreover, there was no
evidence that the appellant had requisite knowledge or intention of
causing death of the victim and therefore, conviction under Section
307 IPC was also not proper. Mr. Das, learned legal aid counsel
further contends that as per evidence of the victim, suddenly the
appellant entered into the room, locked his door and started
physically assaulting her without any provocation or quarrel which
itself was not believable and moreso, if said fact is taken into
consideration, in that case Section 325 IPC will not be applicable.
According to learned legal aid counsel, there must be some sort of
provocation from the side of victim to attract Section 325 IPC.
[7] Mr. S. Ghosh, learned Addl. P.P. on the other hand
contends that the nature of injury is immaterial in case of the
applicability of Section 307 IPC and in the case in hand, there was
grievous injury on the head of the victim which sufficiently
signifies that the appellant had his requisite intention to kill the
victim. Therefore, learned Trial Court was justified in convicting
the appellant under Section 307 IPC. Regarding applicability of
Section 326 IPC, Mr. Ghosh, learned Addl. P.P., however, submits
that there is no sufficient material to establish Section 326 IPC so
far as the weapon used is concerned, however, Section 325 IPC is
sufficiently established in the case.
[8] Mr. Ghosh, learned Addl. P.P. also relies on a decision
of the Apex Court in case of Manubhai Atabhai vs. State of
Gujarat, (2007) 10 SCC 358, in which the Hon'ble Supreme
Court observed that the nature of intention has to be gathered
from the kind of weapon used, the part of the body hit, amount of
force employed and the circumstances attendant upon the death.
Learned Addl. P.P. also further relies on another decision of the
Apex Court rendered in Sadakat Kotwar and Anr. Vs. The State
of Jharkhand, [2021 SCC Online SC 1046]. In said case also
same principle was reiterated that nobody can enter into the mind
of the accused and his intention has to be ascertained from the
weapon used, part of the body chosen for assault and the nature
of injury caused.
[9] Taking into consideration the rival submissions of the
parties, first of all evidence of the victim [PW.3] who is the sole
witness of the incident is required to be revisited. So far her
evidence regarding continuous physical torture upon her after her
marriage on demand of money is concerned, same is not repeated
herein, as there is no appeal challenging the acquittal of the
appellant from the charge under Section 498A IPC. However,
regarding the incident of said date 10.06.2020, she stated that at
around 11.30a.m./12p.m. when she was engaged in her domestic
works, suddenly appellant came there, locked the door from
inside, forcefully tied up her hands with a cloth with the cot and
also tied her mouth with another cloth and thereafter, gave several
blows by Dao and Takkal on different portions of her body causing
bleeding injuries on her right hand, head and thigh. Somehow, she
managed to open her mouth and cried for help to which her
parents-in-law and other neighbours rushed there and rescued her
after breaking the door and arranged her treatment in the
hospital. She further stated that her life would be in danger if she
would not be recovered by them at that time. In her cross-
examination, it is however found that she did not state to the
Investigating Officer about the sudden arrival of the appellant in
the room and locking of the door from inside prior to said incident.
There is no other significant cross-examination on the incident of
said date.
[10] The informant i.e. the mother of the victim stated in her
evidence that she learnt about the incident of said date from the
victim after she regained her sense in the District Hospital. The
Medical Officer, Dr. Snehasish Datta [PW.10], however, did not
state that the victim was admitted to the hospital in senseless
condition. The Medical Officer regarding injuries found in person of
the victim, stated that there was a fracture found on the right
forearm bone of ulna which was caused by a blunt object. One
lacerated injury of measurement 1×0.5cm on the right wrist and
also another lacerated injury of similar measurement on the
forehead of the victim were also found by said witness. According
to the Medical Officer, all the injuries were severe in nature and
were caused by blunt object. The prosecution relied on said
version of the Medical Officer. It is however not established that
sharp edge of Dao or the Takkal was used. The vital ingredient of
Section 307 IPC is that there must be requisite intention and
knowledge of the accused as such as is necessary to constitute
murder. Here, the Medical Officer did not state anything that such
injuries were dangerous for human lives. Two injuries were on the
hands and one injury was on the forehead of the victim which was
the only injury on the vital part of the body and its measurement
was only 1×0.5cm. Therefore, requisite intention or knowledge of
the appellant to cause murder of the victim is not established in
this case beyond doubt.
[11] The reason, as given by learned Trial Court while
convicting the accused under Section 307 IPC in paragraph
No.26(1) of the impugned judgment, is found to be very feeble
and suffers from lack of proper reasoning. Therefore, the
conviction under Section 307 IPC cannot sustain.
[12] So far as the applicability of Section 326 IPC is
concerned, there is no doubt that a fracture or dislocation of any
bone comes within the definition of grievous hurt in terms of
Section 320 IPC but when there is no evidence that such injuries
were caused by the sharp edge of any dangerous weapon, like Dao
or Takkal, learned Trial Court committed err in convicting the
appellant under Section 326 IPC. According to the Medical Officer,
only blunt force was used to cause such injuries upon the victim.
Thus, it appears that the proper provision to be applied was
Section 325 IPC.
[13] Mr. Das, learned legal aid counsel though strenuously
argued that unless there is certain provocation or fight leading to
causing of such injury is established, Section 325 IPC will not be
applicable, but such submission is also not convincing and
acceptable, for, causing of grievous hurt on grave and sudden
provocation is not an ingredient of application of Section 325 IPC.
Learned legal aid counsel also refers to Section 322 IPC and
submits that to attract Section 325 IPC there must be some
intention to cause such hurt or must have some knowledge that
such hurt would cause grievous injury, but such intention to cause
grievous hurt is inferable from the evidence of the victim.
[14] Here PW.1, Smti. Kajali Dey, the sister-in-law of the
victim, stated that on 10.06.2020 there was a quarrel between the
victim and her husband and consequently, the appellant gave Dao
blow on the head of the victim causing grievous cut injuries. She
has also corroborated with the victim regarding physical assault
occurred in the house of the appellant on 10.06.2020. The
statement of the victim also reveals that on the said day of
incident she was in the house of her husband and there she
received the injuries, but the appellant in his examination under
Section 313 Cr.P.C. did not try to explain as to how such injuries
were received by her while she was residing with him in his house
on that day rather he opted to give simple denials of such
evidences.
[15] The Apex Court in Neel Kumar @ Anil Kumar vs.
State of Haryana, (2012) 5 SCC 766, held that it is the duty of
the accused to explain the incriminating circumstance proved
against him while making a statement under Section 313 Cr.P.C.
Keeping silent and not furnishing any explanation for such
circumstance is an additional link in the chain of circumstances to
sustain the charges against him.
[16] In view of above discussion it appears that the
prosecution has not been able to prove the charge under Section
326 IPC but offence under Section 325 IPC is established in the
case and similarly, charge under Section 307 IPC also could not be
established beyond all reasonable shadow of doubt. As a result,
the conviction under 307 IPC is set aside and his conviction under
Section 326 IPC is altered to Section 325 IPC.
[17] Both the learned counsel submits that the appellant is
in custody for about 2 years 5 months and 10 days and in such a
circumstance, Mr. Das, learned legal aid counsel earnestly prays
for passing the substantive sentence of imprisonment under
Section 325 IPC for a period already undergone by the appellant.
Learned counsel also submits that the appellant and the victim are
having two school going daughters and for detention of the
appellant, they are suffering and the appellant is first time
offender.
[18] Considering all these aspects, the conviction of the
appellant is altered from Section 326 IPC to Section 325 IPC and
his conviction and sentence under Section 307 IPC is set aside.
However, he is directed to suffer rigorous imprisonment for 2
years and 6 months and to pay a fine of Rs. 5,000/- under Section
325 IPC, and in default to pay the fine to suffer further simple
imprisonment for 1(one) month. If fine money is deposited by the
appellant, same will be handed over to the victim after her due
identification.
[19] Sent copies of this judgment immediately to the learned
Trial Court and also to the jail authority for taking necessary steps
by them.
Registry is to return LC Records accordingly.
Interim application(s), if any, also stands disposed of.
JUDGE
SATABDI Digitally signed by
SATABDI DUTTA
DUTTA 10:34:26 +05'30'
Date: 2024.09.11
Dinashree
