Tripura High Court
The State Of Tripura vs Md. Giyas Uddin on 7 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl.A.No.10 of 2024
The State of Tripura,
Represented by the Secretary,
Home Department, Government of Tripura
.... Appellant.
Versus
1. Md. Giyas Uddin,
S/o Late Abdul Khaleque
Resident of Jubarajnagar Ward No.1,
P.S.- Dharmanagar, District-North Tripura
2. Md. Rasel Uddin,
S/o Late Abdul Sahid
Resident of Jubarajnagar Ward No.1,
P.S.- Dharmanagar, District-North Tripura
3. Mst. Parbin Neecha,
W/o Md. Giyas Uddin
Resident of Jubarajnagar Ward No.1,
P.S.- Dharmanagar, District-North Tripura
4. Mst. Kabutar Neecha,
W/o Md. Abdul Sahid
Resident of Jubarajnagar Ward No.1,
P.S.- Dharmanagar, District-North Tripura
.......Respondents.
For Appellant(s) : Mr. Raju Datta, P.P.,
Mr. Rajib Saha, Addl. P.P.
For Respondent(s) : Mr. Ratan Datta, Adv.
Mr. Aditya Baidya, Adv.
Mr. Suraj Dhanuk, Adv.
Ms. Saswati Nag, Adv.
Date of Hearing : 06.03.2025
Date of delivery of
Judgment and Order : 07.03.2025
Whether fit for
Reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal under Section 378(1)(b) of Cr.P.C. read
with Section 377 of Cr.P.C. is preferred challenging the order of
conviction and sentence dated 15.12.2023 delivered by
Learned Additional Sessions Judge, North Tripura,
Dharmanagar in connection with case No. Crl. Appl. No.07 of
2023. By the said order of conviction and sentence Learned
Appellate Court has modified the order of conviction and
sentence dated 29.08.2023 under Section 326/324/34 of IPC
delivered by Learned CJM, North Tripura, Dharmanagar in
connection with case No.PRC(WP) 19 of 2022 and sentenced
the respondent-accused persons to pay a fine of Rs.1000/-
each under Section 448 of IPC and also sentenced the
respondent-accused persons to pay a fine of Rs.1000/- each
under Section 323 of IPC in default to suffer Simple
Imprisonment for one month for each offences and thus
acquitted the respondent-accused persons from the charge
levelled against them under Section 324/326 of IPC.
02. Heard Learned P.P., Mr. Raju Datta along with Mr.
Rajib Saha, Learned Addl. P.P. appearing on behalf of the
State-appellant and also heard Learned Counsel Mr. Ratan
Datta appearing on behalf of all the respondent-accused
persons.
03. Taking part in the hearing, Learned P.P. for the
appellant first of all drawn the attention of this Court that in
this case on the basis of an FIR laid by one Md. Ibrahim Ali, the
case was registered under Section 447/326/34 of IPC against
all the respondent-accused persons and after completion of
investigation the IO laid charge sheet against all the
respondent-accused persons under Section 447/325/34 of IPC
and accordingly cognizance of offence was taken and in course
of trial Learned Trial Court framed charge against all the
accused persons under Section 448/326 read with Section 34
of IPC and the same was explained to all the respondent-
accused persons in bengali to which they pleaded not guilty
and claimed to be tried.
During trial to substantiate the charge prosecution
has adduced in total 6 numbers of witnesses and after closer
evidence of the prosecution the respondent-accused persons
were examined under Section 313(1)(b) of Cr.P.C. when they
pleaded innocent and also denied to adduce any witness in
support of their defence and finally on conclusion of trial
Learned Trial Court found the appellants to be guilty and
convicted them under Section 326 of IPC to suffer rigorous
imprisonment for 3 years and to pay a fine of Rs.20,000/- each
i.d. to suffer rigorous imprisonment for further 3 months and
the Learned Trial Court further sentenced all the aforesaid
convicts under Section 324 of IPC and to suffer rigorous
imprisonment for 1 year each and to pay fine of Rs.5000/-
each i.d. to suffer rigorous imprisonment for further one month
with a further direction that all the sentences shall run
concurrently.
After that, the respondent-accused persons as
appellants preferred an appeal before the Court of Learned
Sessions Judge, North Tripura, Dharmanagar who transferred
the case to the Court of Learned Addl. Sessions Judge, North
Tripura, Dharmanagar and the Learned Addl. Sessions Judge,
North Tripura, Dharmanagar heard the case on merit and vide
judgment dated 15.12.2023 set aside the sentences imposed
by the Learned Trial Court under Section 326/324/34 of IPC
but modified the sentences and convicted the respondent-
accused persons under Section 448/323 of IPC.
04. Learned P.P. further drawn the attention of the
Court that before the Learned Trial Court as already stated the
prosecution has adduced in total 6 numbers of witnesses and
from the evidence on record it is crystal clear that all the
respondent-accused persons committed the offence, so
Learned Trial Court rightly found the respondent-accused
persons to be guilty and convicted them accordingly and there
was no infirmity to the judgment. But when the matter was
heard by the Learned Addl. Sessions Judge, North Tripura,
Dharmanagar although he found the appellants to be guilty but
modified the sentence punishable under Section 448/323 of
IPC which was not permissible in the eye of law and contrary to
the evidence on record and furthermore according to Ld. P.P.,
Learned Addl. Sessions Judge without application of proper
mind only imposed fine instead of imprisonment. As a result,
the victim has been suffered serious injury and furthermore
since the respondent-accused persons are proved to be
committed the offence, so by showing lenient view there was
no scope on the part of the Learned Addl. Sessions Judge to
impose the fines only instead of imprisonment. So Learned P.P.
finally urged for setting aside the judgment and order of
conviction and sentence delivered by Learned Addl. Sessions
Judge, North Tripura, Dharmanagar upholding the order of
sentence and conviction delivered by the Learned Trial Court
i.e. Learned CJM, North Tripura, Dharmanagar.
05. On the other hand, Learned counsel Mr. Ratan Datta
appearing on behalf of the respondent-accused persons
submitted that from the evidence on record it is crystal clear
that the prosecution before the Learned Court below has
miserably failed to prove the charges levelled against the
respondent-accused persons under Section 326/324 of IPC for
which the Learned Appellate Court rightly modified the
sentence. Learned counsel also submitted that in this case no
alleged weapon of offence was seized by IO. Even from the
injury report of the victims it is crystal clear that no case under
Section 326/324 read with Section 34 of IPC made out against
any of the respondent-accused persons. So according to
Learned defense counsel there was no infirmity in the
judgment delivered by Learned Appellate Court. He also
referred the cross-examination portion of PW-4 and cross-
examination portion of PW-6 i.e. SI Sri Dayal Chakma and
drawn the attention of the Court that Learned Appellate Court
considering the material evidence on record modified the order
of conviction and sentence delivered by Learned Trial Court.
So, according to learned counsel for the respondent-accused
persons there is no merit in the appeal and urged for dismissal
of this appeal upholding the order of sentence delivered by the
Learned Appellate Court.
06. Now, before proceed with the merit of the appeal let
us see the contents of the FIR and also the evidence on record
of the prosecution. As already stated, this case was set into
motion on the basis of an FIR laid by PW-1, Md. Ibrahim Ali
alleging inter alia that on 13.06.2021 in the afternoon at about
04.00 pm the accused persons Giyas Uddin, Rakesh Uddin,
Kabutar Neecha and Parbin Begum jointly after entering into
his residence dragged them from the dwelling hut and caused
hurt to his son Azad Uddin and his wife armed with deadly
weapons and hence he laid the FIR. The case was registered
and the IO laid chargesheet. Before the Trial Court prosecution
has adduced in total 6 numbers of witnesses. Now let us
discuss the evidence on record.
07. PW-1, Md. Ibrahim Ali is the informant of this case.
He deposed that on 13.06.2021 at about 04.00 pm the accused
persons entered into his house and started assaulting his son
Md. Azad Uddin with dao, dagger, ballam and lathi etc. Due to
such assault, his son sustained severe injuries on his head.
When the informant and his wife tried to rescue their son from
the accused persons that time they also assaulted them. He
sustained severe injuries in his head and arm and his arm got
fractured. His wife sustained injuries in her arm. After
assaulting them, the accused persons left their house. Then,
local people gathered and shifted them to hospital. His son was
referred from Dharmanagar hospital for treatment and they
brought him to Silchar, Assam and then to Guwahati, Assam
for better treatment. Due to sustaining injury his son is still
living partially disabled life and on the following day of the
incident he laid the FIR. He identified his signature on the
complaint petition marked as Exbt.P1.
During cross-examination he stated that the
distance between his house and the house of the accused
persons was about 100 cubits. Their paddy lands are lying
adjacent to each other. He also stated that the police examined
him in connection with this case, but he did not say to IO the
nature of injuries sustained by him, his wife and his son in the
incident. He also did not say to IO that his son sustained
disabled injury and further admitted that the accused persons
filed a case against him and his son.
08. PW-2 Mst. Rubi Begam deposed that the informant
of this case is her father-in-law. On 13.06.2021, at about
01.00 pm there was a quarrel between her husband and his
uncle Md. Giyas Uddin regarding paddy land and regarding
damaging of grass by cattle. The quarrel was ended but at
about 04.00 pm Md. Giyas Uddin and Md. Rasel Uddin entered
into their house and dragged her husband outside of their
house then accused Parbin Neecha and Mst. Kabutar Neecha
joined them and all the 4 accused started assaulting her
husband with dao, dagger and lathi and due to assault her
husband sustained severe injuries on his head. When her
parents in law tried to rescue her husband from the accused
persons that time the accused persons also assaulted them and
due to such assault her father-in-law sustained severe injuries
to his head and arm and his arm got fractured and her mother-
in-law sustained injuries to her arm. When she went to save
her family members the accused persons also threatened her
and she got frightened and bolted herself and after assaulting
the accused persons left their house. Then the local people
assembled there and shifted them to hospital. Her husband
was referred to Dharmanagar hospital for treatment. He was
taken to Silchar and then to Guwahati for better treatment.
During cross-examination she stated that police
examined her. But she did not say to IO that the accused
persons threatened her and being frightened she bolted herself
and her minor child in a room and she did not specifically say
to the IO that the nature of injuries sustained by her husband
and parents-in-law in the incident complained of. Further she
admitted that the accused persons filed a case against her
husband and her father-in-law. She also admitted that the
houses of Md. Akkadach Ali and Md. Abdul Sukkur were
situated nearby their house and at about 20 to 25 persons
gathered around her house after the incident.
09. PW-3 Md. Azad Uddin is the main victim and the son
of the informant deposed that on the 13.06.2021 in the
morning, there was a quarrel between him and his uncle Md.
Giyas Uddin regarding paddy land and regarding damaging of
grass by cattle. On that day at about 04.00 pm the accused
persons namely Md. Giyas Uddin, Md. Rasel Uddin, Mst. Parbin
Neecha and Mst. Kabutar Neecha entered into their house and
started assaulting him with a dao, stick, etc. Accused Rasel
Uddin assaulted on his right arm with a dao and he sustained
cut injuries. The accused Md. Giyas Uddin assaulted him on the
right side of his head with a stick. He could not say whether
the said stick had anything affixed with or not and due to
assault he lost consciousness immediately. He regained his
sense at hospital at Assam after few days.
During cross-examination he stated that he did not
say to IO that Md.Rasel caused hurt to him with a dao in his
right arm and Md. Giyas Uddin assaulted him with a stick like
thing on his head. He stated in general to the IO that the
accused persons had assaulted him with dao, lathi, ballam etc.
10. PW-4 Mst. Hena Begam is the mother of the victim
and wife of the informant. She deposed that on 13.06.2021 at
about 04.00 pm accused Md. Giyas Uddin, Md. Rasel Uddin,
Mst. Parbin Neecha and Mst. Kabutar Neecha entered into their
house and started assaulting her, her husband and her son.
The accused persons were armed with dao, dagger, stick and
spear. They assaulted her with dagger and two fingers of her
left hand got fractured. The accused persons also assaulted her
husband on his head and left arm with dao and he sustained
severe injuries in his head and his left arm got fractured.
Accused Md. Giyas Uddin assaulted on the right side of head of
her son Md. Azad Uddin with spear and it penetrated the skull
of her son. Accused Md. Rasel Uddin assaulted on the right arm
of her son with dao and he sustained severe cut injuries there.
And after the incident, local people gathered their house and
they arranged for sending them to hospital. Her son was
referred from Dharmanagar hospital and they brought him to
Guwahati Medical College, Assam for treatment where he was
treated for 13/14 days. The injuries on the head of her son
were so serious that after the incident, the right side of his
body stopped working properly and presently he was suffering
from disability.
During cross-examination she stated that she did
not specifically say to the IO that which accused assaulted
them in which manner and what specific injuries were
sustained by them. She also admitted that the accused persons
also filed a case against them and that the said case is still
pending and there are other residential houses at a distance of
about 100/150 meters away from their house.
11. PW-5 Dr. Chandan Mallilk was the medical expert.
He deposed that on 13.06.2021 he was posted as Medical
Officer at Dharmanagar Hospital. On that day, he examined
two patients named Mst. Hena Begam and Md. Ibrahim Ali at
about 05.30 pm and 07.30 pm respectively. On examination of
Hena Begam, he found one cut wound over left hand. The
patient was discharged with advice after preliminary treatment.
The patient had appeared before him with history of physical
assault. He prepared report and identified his report marked as
Exbt.P2 and signature marked as Exbt.P2(a). He further stated
that on examination of Ibrahim Ali found one lacerated wound
over scalp measuring 3 cm X ½ cm and minor injury i.e. tender
swelling over left hand with fracture at left fourth metacarpal.
The injuries were fresh, simple and grievous respectively which
might have been caused by blunt object. The patient was
discharged from the hospital on the following day with advice.
The patient had appeared before him with history of physical
assault. He identified the report prepared by him marked
Exbt.P3.
During cross-examination he stated that he has not
mentioned any case number over his report with regard to Mst.
Hena Begum. He further stated that the injuries present over
the person of the aforesaid patients were of such nature which
may be caused in a road traffic accident as well. Nothing more
came out relevant.
12. PW-6 SI Dayal Chakma deposed that on 15.06.2021
he was posted at SI police of Dharmanagar PS. On that day the
investigation of this case was endorsed to him by the then O.C.
of Dharmanagar PS namely Inspector Milan Chandra Datta and
he identified his signature on the printed FIR marked Exbt.P4.
He further stated that during further investigation he visited
P.O. and prepared hand sketch map and identified the hand
sketch map marked as Exbt.P5 and the index of the hand
sketch map marked as Exbt.P5(a). He examined available
witnesses and recorded their statements under Section 161 of
Cr.P.C. and on completion of investigation he laid chargesheet
against the accused persons.
During cross-examination he stated that the printed
form of FIR does not mention any reason for delay in lodging
the FIR. He further stated that he did not examine any other
local witnesses other than the family members of the victim in
connection with the case. Again volunteered that no local
witness were aware of the matters in issue. He also stated that
his investigation revealed that as per medical injury report of
Md. Azad Uddin issued by Guwahati Medical College he
sustained injury by falling from height.
These are the sum of substance of the evidence on
record of the prosecution to substantiate the charges framed
by Learned Trial Court.
13. I have seen the evidence on record and also heard
arguments of both the sides at length. Admittedly in this case
there was no explanation in respect of delay in lodging the FIR
although the said point was not raised by the Learned Counsel
for the accused persons either before the Appellate Court or
before the High Court at the time of hearing. Surprisingly,
there is no evidence on record that the alleged weapon of
offence was seized by the IO during investigation. Even there
is no explanation from the side of the prosecution as to why
those alamats were not seized. No independent public
witnesses apart from the family members of the informant
could produce by the prosecution in this case. Now the
witnesses of the prosecution in course of their examination
stated that soon after the incident so many persons assembled
to their house but surprisingly prosecution could not adduce
any witness to support the prosecution case. Even there was
also no explanation from the side of the prosecution as to why
the neighbouring persons who were present to the P.O. soon
after the occurrence of offence were not cited as witness in this
case. Even no injury report of the victim Md. Azad Uddin was
produced and proved by the prosecution in this case. Although
there was allegation that he sustained cut injury and due to
causing of hurt he has become partially disabled but
surprisingly when the IO came before the Court to depose as a
witness he in course of his cross-examination very specifically
stated that the victim Md. Azad Uddin sustained injury after
falling from height. Prosecution in course of hearing of
argument failed to give any explanation in this regard.
So, after going though the evidence on record it
appears to this Court that the Learned Appellate Court at the
time of delivery of judgment rightly acquitted the respondent-
accused persons from the charges leveled against them under
Section 326/324/34 of IPC.
14. Now, regarding upholding of sentence of the
respondent-accused persons under Section 448/323 of IPC, it
appears that the witnesses of the prosecution were duly cross-
examined by the respondent-accused in course of trial before
the Learned Trial Court but regarding sustaining of injury by
the victims, the respondent accused persons failed to make out
any case to disbelieve their evidence. Admittedly, no weapon
of the offence was seized in this connection with this case or
could produce before the Court during trial. The injury report of
the victim Md. Azad Uddin who according to prosecution
sustained huge injury and became permanently disabled could
not be produced and proved by the prosecution in this case
and prosecution also has failed to give any explanation in this
regard. So, after considering the materials on record it appears
to this Court that the prosecution was successful in proving
that the respondent-accused persons on the alleged day
entered into the residence of the informant and caused hurt to
the informant, his wife and son and in my considered view,
Learned First Appellate Court rightly convicted the respondent-
accused persons under Section 323/448 of IPC modifying the
order of sentence and conviction under Section 326/324 read
with Section 34 of IPC.
15. Now we are to see as to whether the sentence
imposed by Learned Appellate Court was adequate or not. In
this regard, Learned P.P. in course of hearing of argument
submitted that admittedly certain lacunas were there in the
prosecution case and as such the Learned Appellate Court
rightly convicted the respondent-accused persons under
Section 448/323 of IPC. But at the time of sentence Learned
Appellate Court without imposing any punishment of
imprisonment to them only imposed fine which caused
miscarriage of justice, because due to causing of hurt the
victim has sustained disability and still undergoing treatment.
So, the Learned Appellate Court has shown lenient view in
regard to sentencing of the respondents. So, Learned P.P. in
course of hearing urged for imposing both the sentence of
imprisonment as well as fines which the relevant Sections 323
and 448 of IPC provides. For the sake of convenience, I would
like to refer herein below the relevant provisions of Sections
323 and 448 of IPC which are as follows:-
"323. Punishment for voluntarily causing hurt.-
Whoever, except in the case provided for by
section 334, voluntarily causes hurt, shall be
punished with imprisonment of either description
for a term which may extend to one year, or with
fine which may extend to one thousand rupees, or
with both.
448. Punishment for house-trespass.- Whoever
commits house-trespass shall be punished with
imprisonment of either description for a term
which may extend to one year, or with fine which
may extend to one thousand rupees, or with both."
16. From the aforesaid provisions of IPC it appears that in
both the cases the Court may impose punishment of
imprisonment or fine or both. But in the given case the
Learned Appellate Court instead of imposing any imprisonment
only imposed sentence of fine only upon the respondents. In
this regard, Hon'ble the Apex Court in State of Rajasthan vs.
Banwari Lal and Another reported in 2022 12SCC 166 in
Para Numbers 10-11.3 has been pleased to observe as under:-
"10. The manner in which the High Court has dealt
with the appeal and has reduced the sentence,
without adverting to the relevant facts and without
considering the gravity and nature of offence, is
unsustainable. The High Court has dealt with the
appeal in a most casual and cavalier manner. The
judgment and order: 2015 SCC OnLine Raj 12277
passed by the High Court reducing the sentence is
nothing but an instance of travesty of justice and
against all the principles of law laid down by this
Court in a catena of decisions on imposing
appropriate punishment/ suitable punishment.
11. At this stage, few decisions of this Court on
principles for sentencing and tests for awarding an
appropriate sentence in a given case are required
to be referred to and considered:
11.1. In Mohan Lal: (2018) 18 SCC 535 the
High Court modified the judgment and order
passed by the learned trial court and
sentenced the accused to the period already
undergone by him, which was only six days
and absolutely no reasons, much less valid
reasons, were assigned by the High Court.
While setting aside the order:2015 SCC
OnLine Raj 7766 passed by the High Court,
this Court has observed in paras 9 to 13 as
under: (SCC pp. 537-39)
9. The High Court simply brushed aside
the aforementioned material facts and
sentenced the accused to the period
already undergone by him, which is
only 6 days in this case. In our view,
the trial court and the High Court have
taken a lenient view by convicting the
accused for offences under Sections
325 and 323 IPC. Absolutely no
reasons, much less valid reasons, are
assigned by the High Court to impose
the meagre sentence of 6 days. Such
imposition of sentence by the High
Court shocks the judicial conscience of
this Court.
10. Currently, India does not have
structured sentencing guidelines that
have been issued either by the
legislature or the judiciary. However,
the courts have framed certain
guidelines in the matter of imposition
of sentence. A Judge has wide
discretion in awarding the sentence
within the statutory limits. Since in
many offences only the maximum
punishment is prescribed and for some
offences the minimum punishment is
prescribed, each Judge exercises his
discretion accordingly. There cannot,
therefore, be any uniformity. However,
this Court has repeatedly held that the
courts will have to take into account
certain principles while exercising their
discretion in sentencing, such as
proportionality, deterrence and
rehabilitation. In a proportionality
analysis, it is necessary to assess the
seriousness of an offence in order to
determine the commensurate
punishment for the offender. The
seriousness of an offence depends,
apart from other things, also upon its
harmfulness.
11. This Court in Soman v. State of
Kerala: (2013) 11 SCC 382 observed
thus: (SCC p. 393, para 27)
„27.1. Courts ought to base sentencing
decisions on various different
rationales -- most prominent amongst
which would be proportionality and
deterrence.
27.2. The question of consequences of
criminal action can be relevant from
both a proportionality and deterrence
standpoint.
27.3. Insofar as proportionality is
concerned, the sentence must be
commensurate with the seriousness or
gravity of the offence.
27.4. One of the factors relevant for
judging seriousness of the offence is
the consequences resulting from it.
27.5. Unintended consequences/harm
may still be properly attributed to the
offender if they were reasonably
foreseeable. In case of illicit and
underground manufacture of liquor, the
chances of toxicity are so high that not
only its manufacturer but the
distributor and the retail vendor would
know its likely risks to the consumer.
Hence, even though any harm to the
consumer might not be directly
intended, some aggravated culpability
must attach if the consumer suffers
some grievous hurt or dies as result of
consuming the spurious liquor.‟
12. The same is the verdict of this
Court in Alister Anthony Pareira v.
State of Maharashtra(2012) 2 SCC 648
wherein it is observed thus: (SCC p.
674, para 84)
„84. Sentencing is an important task in
the matters of crime. One of the prime
objectives of the criminal law is
imposition of appropriate, adequate,
just and proportionate sentence
commensurate with the nature and
gravity of crime and the manner in
which the crime is done. There is no
straitjacket formula for sentencing an
accused on proof of crime. The courts
have evolved certain principles: the
twin objective of the sentencing policy
is deterrence and correction. What
sentence would meet the ends of
justice depends on the facts and
circumstances of each case and the
court must keep in mind the gravity of
the crime, motive for the crime, nature
of the offence and all other attendant
circumstances.‟
13. From the aforementioned
observations, it is clear that the
principle governing the imposition of
punishment will depend upon the facts
and circumstances of each case.
However, the sentence should be
appropriate, adequate, just,
proportionate and commensurate with
the nature and gravity of the crime and
the manner in which the crime is
committed. The gravity of the crime,
motive for the crime, nature of the
crime and all other attending
circumstances have to be borne in
mind while imposing the sentence. The
court cannot afford to be casual while
imposing the sentence, inasmuch as
both the crime and the criminal are
equally important in the sentencing
process. The courts must see that the
public does not lose confidence in the
judicial system. Imposing inadequate
sentences will do more harm to the
justice system and may lead to a state
where the victim loses confidence in
the judicial system and resorts to
private vengeance."
11.2. In Udham: (2019) 10 SCC 300, in paras
11 to 13, it is observed and held as under:
(SCC p. 303)
"11. We are of the opinion that a large
number of cases are being filed before
this Court, due to insufficient or wrong
sentencing undertaken by the courts
below. We have time and again
cautioned against the cavalier manner
in which sentencing is dealt in certain
cases. There is no gainsaying that the
aspect of sentencing should not be
taken for granted, as this part of
Criminal Justice System has
determinative impact on the society. In
light of the same, we are of the opinion
that we need to provide further clarity
on the same.
12. Sentencing for crimes has to be
analysed on the touchstone of three
tests viz. crime test, criminal test and
comparative proportionality test. Crime
test involves factors like extent of
planning, choice of weapon, modus of
crime, disposal modus (if any), role of
the accused, anti-social or abhorrent
character of the crime, state of victim.
Criminal test involves assessment of
factors such as age of the criminal,
gender of the criminal, economic
conditions or social background of the
criminal, motivation for crime,
availability of defence, state of mind,
instigation by the deceased or any one
from the deceased group, adequately
represented in the trial, disagreement
by a Judge in the appeal process,
repentance, possibility of reformation,
prior criminal record (not to take
pending cases) and any other relevant
factor (not an exhaustive list).
13. Additionally, we may note that
under the crime test, seriousness needs
to be ascertained. The seriousness of
the crime may be ascertained by (@)
bodily integrity of the victim; (iz) loss of
material support or amenity; (iii) extent
of humiliation; and (iv) privacy breach."
In the said decision, this Court again
cautioned against the cavalier manner
in which sentencing is dealt with in
certain cases.
11.3. In Satish Kumar Jayanti Lal Dabgar: (2015) 7
SCC 359, this Court has observed and held that the
purpose and justification behind sentencing is not
only retribution, incapacitation, rehabilitation but
deterrence as well."
17. From the aforesaid principle of law it appears that in
sentencing for crimes 3 tests are to be taken into consideration
namely crime test, criminal test and comparative
proportionality test. Crime test involves factors like extent of
planning, choice of weapon, modus of crime, disposal modus,
role of the accused, anti-social character of crime, state of
mind. Criminal test involves assessment of factors such as age
of the criminal, gender of the criminal, economic conditions or
social background of the criminal, motivation for crime,
availability of defence, state of mind, instigation by the
deceased or any one from the deceased group, adequately
represented in the trial, disagreement by a Judge in the appeal
process, repentance, possibility of reformation, prior criminal
record etc. In addition to that seriousness of the crime may be
ascertained by (i) bodily integrity of the victim; (ii) loss of
material support or amenity; (iii) extent of humiliation; and
(iv) privacy breach.
18. In the given case on perusal of the record of the Learned
Trial Court below it appears that the following lacunas of the
prosecution were as follows:-
(i) Delay in lodging the FIR.
(ii) No weapon of offence was seized by IO during
investigation or no explanation was there from the
side of prosecution as to why the same was not
seized or produced.
(iii) PW-6 in course of his cross-examination stated
that PW-3 sustained injury by falling from height not
due to the assault.
(iv) No independent witnesses could produce by the
prosecution.
(v) Previous enemity amongst the rival parties.
19. In course of hearing of argument Learned P.P. failed to
give any satisfactory explanation of the aforesaid loopholes.
But from the evidence on record of the prosecution and also
from the cross-examination by the accused persons to the
witnesses of the prosecution it appears to this court that they
have failed to discharge their burden or they have failed to
discredit the witnesses of the prosecution regarding
commission of offence of house-trespass and also regarding
voluntarily causing hurt to the victim of this case on the
alleged day of incident.
20. Situated thus, although the Learned Trial Court found the
respondent-accused persons to be guilty for the alleged
charges punishable under Section 326/324 of IPC, but in
absence of cogent evidence on record, in my considered view,
Learned Appellate Court rightly modified the sentence and
converted the sentence under Section 323/448 of IPC against
the respondents.
21. So, after hearing both the sides this Court also does not
find any scope to alter the conviction of sentence awarded by
the Learned Appellate Court. However, regarding imposition of
punishment, it appears that the Learned First Appellate Court
has taken lenient view at the time of passing of sentence to the
respondent-accused persons namely, Md. Giyas Uddin, Md.
Rasel Uddin, Mst. Parbin Neecha and Mst. Kabutar Neecha
which in my considered view Learned Appellate Court failed to
appreciate properly.
22. It was submitted by the Learned Counsel for the
respondent-accused persons that the fine money as awarded
by the Appellate Court has already been deposited by the
respondent-accused persons before the concerned Court. So
considering the nature and gravity of the offence and also the
nature of allegation, it appears to this Court that for the ends
of justice the sentence awarded by the Appellate Court be
modified.
23. In the result, the judgment and order of conviction and
sentence delivered by Learned Additional Sessions Judge,
North Tripura, Dharmanagar dated 15.12.2023 in connection
with Crl. A. No.07 of 2023 is modified to the extent that the
respondent-accused persons Md. Giyas Uddin and Md. Rasel
Uddin in addition to fine of Rs.1000/- each for the offences
punishable under Section 448/323 of IPC also shall suffer
Simple Imprisonment for 7 days. No imprisonment is imposed
upon the rest two other convicts namely Mst. Parbin Neecha
and Mst. Kabutar Neecha being women and they will be
discharged in the event of their deposit of fine money for an
amount of Rs.1000/- each for the offences punishable under
Section 448/323 of IPC as ordered by the Learned Additional
Sessions Judge by the said judgment and order. The convicts
Md. Giyas Uddin and Md. Rasel Uddin be asked to surrender
before the Learned Court below on or before 10.03.2025 to
suffer the sentence and learned Trial Court shall issue order of
imprisonment accordingly. Thus, the appeal is disposed of.
Send down the LCRs along with a copy of
judgment/order immediately.
A copy of this judgment/order be supplied to
Learned P.P. for the appellant and also a copy of this
judgment/order be supplied to Learned Counsel for the
respondent-accused persons for information and compliance.
Pending application, if any, stands disposed of.
JUDGE
MOUMIT Digitally signed by
MOUMITA DATTA
Date: 2025.03.11
A DATTA 11:00:45 +05'30'
Amrita
