Tripura High Court
Mst. Swapna Begam vs Md. Nurul Kha on 7 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. No.24 of 2024
Mst. Swapna Begam,
D/O Habib Ulfa & W/O Mainul Kha,
Resident of Bilashpur, P.S. Kadamtala,
District- North Tripura, Pin-799261
------ Appellant
Versus
1. Md. Nurul Kha
S/O Abdul Kadir,
Resident of South Amtilla,
Word No.6, P.S. Kadamtala,
District- North Tripura, Pin-799261
2. Md. Abdul Nur Kha @ Joynal Kha,
S/O Abdul Kadir,
Resident of South Amtilla, Word No.6,
P.S. Kadamtala, District- North Tripura, Pin-799261.
3. Md. Badrul Kha,
S/O Abdul Kadir,
resident of South Amtilla, Word No.6,
P.S. Kadamtala, District-North Tripura, Pin-799261.
------ Respondents
4. The State of Tripura
Represented by the Secretary, Home Department,
Government of Tripura, Agartala, Tripura(West).
------ Proforma-Respondent
For Appellant(s) : Mr. Jayanta Majumder, Adv.
For Respondent(s) : Mr. Arjun Acharjee, Adv,
Mr. Sudipta Chowdhury, Adv,
Mr. Rajib Saha, Addl. P.P.
Date of hearing : 06.03.2025
Date of delivery of
Judgment & Order : 07.03.2025
Whether fit for
reporting : NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal under Section 372 of Cr.P.C. is preferred by the
appellant-victim Swapna Begam challenging the inadequate order of
conviction and sentence dated 25.04.2024 delivered by Learned
Additional Sessions Judge, North Tripura, Dharmanagar in connection
with case No. Crl. A. No.12 of 2023. By the said judgment and order
of conviction and sentence, Learned Appellate Court has modified the
order of conviction and sentence dated 08.12.2023 delivered by
Learned Chief Judicial Magistrate, North Tripura, Dharmanagar in
connection with case No.PRC(WP)/124/2022.
2. Heard Learned Counsel Mr. Jayanta Majumder appearing on
behalf of the appellant-victim and also heard Learned Counsel, Mr.
Arjun Acharjee along with Learned Counsel, Ms. Sudipta Chaudhury
appearing on behalf of the respondent-accused persons. Learned
Addl. P.P., Mr. Rajib Saha has appeared on behalf of the State.
3. For the sake of convenience, let us reproduce herein below
the relevant provision of Section 372 of Cr.P.C. which provides as
under:
372. No appeal to lie unless otherwise provided.- No
appeal shall lie from any judgment or order of a
Criminal Court except as provided for by this Code or
by any other law for the time being in force:
[Provided that the victim shall have a right to prefer
an appeal against any order passed by the Court
acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation, and
such appeal shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of such
Court.]
Learned Chief Judicial Magistrate, North Tripura,
Dharmanagar by the said judgment and order of conviction and
sentence found the respondent-accused persons guilty of offence
punishable under Section 323 of IPC and sentenced the convict Nurul
Kha, Md. Abdul Nur Kha alias Joynal and Md. Badrul Kha under
Section 323/34 of IPC to suffer RI for 3 months each and to pay fine
of Rs.1000/- each i.d. to suffer further RI for one week each. That
judgment was challenged before the Learned Appellate Court and
Learned Appellate Court in Crl. A. No.12 of 2023, as already stated,
by judgment dated 25.04.2024 has modified the order of conviction
and sentence and only sentenced the convicts Md. Nurul kha, Abdul
Nur Kha alias Joynal and Md. Badrul Kha to pay fine of Rs.1000/- each
i.d. to suffer rigorous imprisonment for one week each.
4. In course of hearing of argument, Learned Counsel for the
appellant, Mr. Jayanta Majumder submitted that on the basis of an
FIR laid by one Nur Uddin, Kadamtala P.S. case No.27 of 2022 under
Section 498A/342/325/354B/506/34 of IPC was registered and the IO
on completion of investigation laid charge-sheet against the
respondent-accused persons. Cognizance of offence was taken and
during trial, the Learned Trial Court considering the materials on
record framed charge under Section 342/354(b)/354/323 read with
Section 34 of IPC against all the convicts Md. Nurul Kha, Md. Abdul
Nur Kha @ Joynal and Md. Badrul Kha and the same was explained to
them to which they pleaded not guilty and claimed to be tried. Finally,
the Learned Trial Court found the respondent-accused persons guilty
only for the offence punishable under Section 323 of IPC which
according to Learned Counsel for the appellant was rightly awarded by
the Learned Trial Court. Learned Counsel for the appellant further
submitted that surprisingly during investigation, the injury report of
the victims were procured by the IO but surprisingly in the charge-
sheet, the Medical Officers were not cited as witness and furthermore,
even the prosecution also did not take any effort to produce the
Medical Officers who examined the victim which caused serious
injustice to the case of the prosecution and furthermore, the Learned
Appellate Court in para No.18 came to the observation that
prosecution failed to prove any bad conduct of the respondent-
accused persons which according to Learned Counsel for the appellant
was non-application of mind and unheard. So, Learned Counsel for
the appellant fairly submitted to set aside the judgment delivered by
the Learned Appellate Court and to uphold the judgment and order of
conviction and sentence delivered by Learned Trial Court.
5. On the contrary, Learned Counsel for the respondent-accused
persons taking part in the hearing had drawn the attention of the
Court referring the contents of the FIR and the evidence on record
and submitted that prosecution could not prove the charges levelled
against the respondent-accused persons although the Learned Trial
Court found the respondent-accused persons to be guilty for the
offence punishable under Section 323/34 of IPC and sentenced them
to suffer imprisonment with fine and challenging that judgment, the
respondent-accused as appellants have preferred the appeal before
the Court of Learned Additional Sessions Judge, North Tripura,
Dharmanagar but the Learned Appellate Court failed to appreciate the
evidence on record properly and uphold the order of conviction
against the respondent-accused persons but modified the sentence
although the respondent-persons being poor persons have deposited
the fine money before the concerned Learned Court. However,
Learned Counsel also submitted that there is no merit in the appeal
for enhancement of punishment, so, the appeal filed by the victim as
appellant needs to be dismissed henceforth.
Alternatively, Learned Counsel for the respondent-accused
persons further submitted that as the respondents are satisfied with
the judgment of the Learned Appellate Court so there is no scope to
interfere with the judgment of the Learned Appellate Court and urged
for dismissal of this appeal.
6. Now let us see the initial FIR on the basis of which the case
was registered. The FIR was laid by one Nur Uddin to O/C, Kadamtala
PS alleging inter alia that on 11.04.2022 at about 14:00 hours at
South Amtilla, Bargul GP Ward No.5 under Kadamtala PS, the
respondent-accused persons in furtherance of their common intention
wrongfully confined the victim (name withheld) by tying her with rope
with a chair in her house. The respondent-accused persons also in
furtherance of their common intention assaulted her or used criminal
force to the victim with the intention of disrobing her to be naked and
they also assaulted or used criminal force to the victim to outrage or
knowing it to be likely that they would outrage her modesty and they
voluntarily caused hurt to the victim. On the basis of the FIR of the
informant Nur Uddin, the case was registered under Section
342/325/354B/506/34 of IPC and on conclusion of investigation, the
IO laid charge-sheet against the respondent-accused persons.
7. As already stated, charge was framed and prosecution to
substantiate the charge has in total adduced seven numbers of
witnesses. Now let us discuss the evidence on record of the
prosecution adduced before the Learned Trial Court.
PW-1 is the informant of this case. He deposed that the victim
of this case is his sister. He further deposed that about nine years
back, her marriage was solemnized with Md. Mainul Kha of Bargul and
his sister went to her matrimonial home. On 04.11.2022 his brother-
in-law Md. Mainul Kha called him at about 2 pm and told that when he
returned home from Dharmanagar, that time, he could know from his
elder brother that his wife i.e. the sister of the informant had been
killed by Md. Nurul kha, Abdul Nur Kha alias Joynal and Md. Badrul
Kha and they are the younger brothers of Md. Mainul Kha. On receipt
of information, he rushed to the matrimonial house of his sister and
on the way he informed the matter to Bargul Club. On reaching the
matrimonial home, he found that his sister had been tied with a chair
in naked condition. The respondent-accused persons were present
there and they had sticks in their hands. He took his sister to
Kadamtala Hospital at first and then to Dharmanagar District Hospital
for treatment. From Dharmanagar Hospital, he took his sister to
Makunda Hospital, Assam. Since then, his sister was residing in his
house and he got the complaint petition written by one Sumanta Nath
and signed the same. 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 matrimonial house of his sister is about
two and half kilometers. The accused persons are five brothers. His
sister used to reside separately with her husband in the same house
complex with the accused persons. Elder brother of Md. Mainul Kha
also used to reside separately in the same house complex with the
accused persons. He laid the complaint petition to the police station
when his sister was at Dharmanagar District Hospital. Police examined
him in connection with this case. He further stated that he did not say
to IO that he found the accused persons to the alleged PO with sticks
in their hands. Nothing more came out relevant.
8. PW-2 is the victim. She deposed that the informant of this
case is her elder brother and the accused persons are her brothers-in-
law. On 11.04.2022 at about 1 pm to 2 pm in her matrimonial house,
the accused persons scolded her in connection with a rope. Then they
assaulted her, removed her wearing apparels and tied her with a chair
with the said rope. They bolted her inside a room of her matrimonial
house. Thereafter, she could not remember what had happened.
During the incident, her husband was not in home as he was driving
e-rickshaw at Dharmanagar. Later on, her husband returned home
and rescued her with the help of boys from local club. From the place
of occurrence, she was taken to Kadamtala Hospital at first, then to
Dharmanagar District Hospital and finally to Makunda Hospital,
Assam. From there, her husband took her to a rented house at
Sakaibari.
During cross-examination, she stated that her marriage was
solemnized about 9 years back. There is no other residential house in
the locality where her matrimonial house is situated. For about one
year before the day of the incident, she herself and her husband used
to reside separately in the same house complex with the accused
persons and they were six female members in the said house
complex. She could not say the time when her husband returned
home on the day of the incident. Nothing more came out relevant
from her cross-examination.
9. PW-3, Md. Habib Ullah is the father of the victim and the
informant. He deposed that on 04.11.2022 his son-in-law Md. Mainul
Kha called him at about 1 pm and told him that when he returned
home from Dharmanagar he came to know that his wife had been
killed by Md. Nurul Kha, Md. Abdul Nur Kha @ Joynal and Md. Badrul
Kha. They are the younger brothers of his son-in-law. On receipt of
such information, he rushed to the matrimonial house of his daughter.
On reaching there, he found that his daughter was tied with a chair in
naked condition. His son reached there in the meantime with police
and local club members. After that, his daughter was taken to hospital
and FIR was lodged. His daughter was first taken to Kadamtala
Hospital, then to Dharmanagar Hospital and finally to Makunda
Hospital, Assam.
During cross-examination, he stated that police examined
him. He did not say to police that his son-in-law Md. Mainul Kha called
him on 11.04.2022 at about 1 pm and told him that when he returned
home from Dharmanagar he came to know that his wife had been
killed by the accused persons and he also did not say to police that on
arrival to her matrimonial house he found his daughter in naked
condition. Also, he did not say to IO that his son had reached the PO
with police personnel. Nothing more came out relevant.
10. PW-4, Mst. Saharjaan Bibi is the mother of the informant and
the victim. He deposed that on the fourth day of a month last year
during continuance of ramjan month at about 2 pm, her son-in-law
called her over phone and told her that his younger brothers had
assaulted her daughter. On receipt of information, her son and her
husband went to the matrimonial home of her daughter and found her
lying on the ground in injured condition. They went there with the
help of police and local club members. Then they shifted her daughter
to Kadamtala Hospital at first and then to Dharmanagar Hospital.
From there, she was referred to Agartala for better treatment, but
they took her to Makunda Hospital, Assam. During the incident, her
son-in-law was not present in his house as he was driving e-rickshaw
at Dharmanagar.
During cross-examination, she stated that she did not go to
the PO and Police also examined her.
11. PW-5 is the husband of the victim. He deposed that on
04.11.2022 at about 1 pm there was a quarrel in his house between
his wife and sisters-in-law regarding a rope. He was in his house at
that time. After sometime, he went out of his house with e-rickshaw.
Then he received a call from his wife informing that his sisters-in-law
had disturbed her again. He informed the matter to her brother-in-law
who is the informant of this case. He went to their house and
assaulted his brothers and damaged furniture there. This witness was
declared hostile by the prosecution.
During cross-examination, he stated that after filing of the
case, his wife used to reside with him and his wife never told him that
his younger brothers assaulted her and outraged her modesty.
12. PW-6, Mihir Rh. Nath is the president of Pioneer Youth Club of
Amtilla Bargul. He deposed that on 11.04.2022 in the afternoon he
received a call from one Nur Uddin who informed him that his sister
had got married in their locality and she was subjected to torture by
her in-laws. On receipt of information, he asked Md. Nur Uddin
whether he had informed police or not and at about 2 pm on the same
day, the witness and the club members went to the matrimonial
house of Nur Uddin's sister and found that police had already reached
there. He also found Nur Uddin and his father present there. He saw a
woman lying on the ground inside the house. Md. Nur Uddin wished to
take her to hospital. They pushed the e-rickshaw of that lady's
husband near the house. Md. Nur Uddin boarded her in the said e-
rickshaw and proceeded towards hospital. He did not see anything
else.
During cross-examination, he stated that he entered just one
step inside the boundary of the matrimonial house of Nur Uddin's
sister and found that lady's husband present there. He had no
conversation with that lady.
13. PW-7, Joy Kumar Nath deposed that he is a member of
Pioneer Youth Club of Amtilla Bargul. Sri Mihir Rn. Nath is the
President. On 11.04.2022 at about 1 pm he saw a message in the
WhatsApp group of their club wherein the President told them to go to
the matrimonial house of the sister of one Nur Uddin which was
situated in their locality and accordingly they went there. On reaching
there, they found the police personnel and a lady was required to be
taken to hospital and after that, she was taken to hospital but he
could not say anything furthermore about the case of the prosecution.
These are the sum and substances of the evidence on record.
14. Prosecution, in this case, apart from those witnesses, failed to
produce the IO. No wooden stick could be seized or produced for
marking of exhibit in this case. Although one wooden broken chair
was seized by the seizure list dated 22.05.2022 but that wooden
broken chair was produced for marking of Exhibit in this case. More
interestingly, the IO did not cite the Medical Officers who examined
the victim on 13.04.2022 and 30.04.2022 as witness in this case i.e.
in the charge-sheet also. Even no effort was taken to ensure
production of the said witnesses by the prosecution in this case which
was the solemn duty of the concerned Prosecutor to move appropriate
application to the Court for issuing summons.
15. Learned Trial Court on the basis of evidence on record found
the respondents to be guilty under Section 323/34 of IPC and
convicted the respondent-accused persons accordingly and after that,
as already stated, the respondent-accused persons as convicts
preferred appeal and in the appeal, their sentence was modified. Now
we are to see as to whether in absence of injury report of the victim
there was scope on the part of the Court below to avoid conviction
under Section 323 of IPC and also we are also to see as to whether
the evidence on record justifies modification of sentence delivered by
Learned Appellate Court.
Now if we carefully go through the evidence on record, it
appears that just at the time of alleged occurrence excepting the
victim no other persons were present. More interestingly, the husband
of the victim did not support her case. Although he was declared
hostile by the prosecution but from his evidence the prosecution could
not derive any benefit. But from his evidence, it is clear that on the
alleged day in his absence, some incident took place. PW-6 and PW-7
only deposed that after collecting information, they rushed to the
house of the victim. Although they did not see the victim in injured
condition nor they could see the commission of offence by the alleged
respondent-accused persons, as such, there is no scope to place any
reliance upon the evidence of said three witnesses i.e. PW-5, PW-6
and PW-7.
Now let us see the other part of the evidence on record.
Prosecution has produced the informant, his father, mother and the
victim of this case. PW-1 is the informant and PW-2 is the victim. PW-
3 although in his examination-in-chief made some incriminating
evidence against the respondent-accused persons but from his cross-
examination, it appears that the statement made by him was first
time evidence before the Court. Prosecution failed to explain anything
in this regard before the Court. Even the Learned Counsel for the
victim-appellant also failed to satisfy the Court as to how their
evidences can be believed. PW-4 did not go the PO on that relevant
point of time.
Now, apart from those two witnesses, only the evidence of
informant and victim remains. The respondent-accused persons
thoroughly cross-examined the victim and her brother but their
evidences could not be shattered/discredited at any length by the
respondent-accused persons. Admittedly, no injury report of the
victim could be proved and produced by the prosecution before the
Learned Trial Court. Even no effort was also taken to prove the said
documents. The reasons were best known to the prosecution.
The respondent-accused persons failed to counter anything
regarding confirmation of sentence under Section 323 read with
Section 34 of IPC but they fairly submitted that they have accepted
the order of modified sentence delivered by the Learned Appellate
Court and urged for dismissal of this appeal as the same does not
bears any merit. Since none of the parties have challenged the
validity of the order of conviction and sentence, so, without
highlighting anything, now we are to see as to whether the sentence
imposed by the Learned Appellate Court was proper or not.
In a prosecution under Section 323 of Cr.P.C., proving of
injury report is not mandatory in every occasion. In this regard,
Hon'ble the Apex Court reported in (2021) 9 SCC 191 titled as
Lakshman Singh v. State of Bihar (Now Jharkhand), wherein in
para No.11 last part, observed as under:
"11. * * * * *
However, production of an injury report for the
offence under Section 323 IPC is not a sine qua non
for establishing the case for the offence under
Section 323 IPC. Section 323 IPC is a punishable
section for voluntarily causing hurt. "Hurt" is defined
under Section 319 IPC. As per Section 319 IPC,
whoever causes bodily pain, disease or infirmity to
any person is said to cause "hurt". Therefore, even
causing bodily pain can be said to be causing "hurt".
Therefore, in the facts and circumstances of the
case, no error has been committed by the courts
below for convicting the accused under Section 323
IPC."
In view of the principle of law laid down by the Hon'ble Apex
Court in the aforenoted case, it appears that in absence of proving of
injury report by the prosecution, there is no bar to convict any
person. Here in the given case, excepting the evidence of PWs-1, 2, 3
and 4 the prosecution, as already stated, could not adduce any other
independent witness to support the prosecution case. Even the
husband of the victim became hostile to stand and depose on her
behalf. At the same time, from the cross-examination part of the PW-
1 and PW-2, it appears that the respondent-accused persons, by the
trend of cross-examination, have failed to discard/discredit the
evidence on record of the said witnesses. Thus, in my considered
view, Learned Trial Court rightly convicted the respondent-accused
persons but the same has been modified by the Learned Appellate
Court. This present appeal was preferred for enhancement of
sentence.
16. I have also seen the observation made by the Learned
Appellate Court in imposing fine only instead of imprisonment as
awarded by the Learned Trial Court. It appears that the Learned
Appellate Court without any justified grounds only with the plea that
no previous bad record could be established against the respondent-
accused persons converted the sentence of imprisonment to the
sentence of fine only. From the evidence on record, it appears that
the allegation levelled against the respondent-accused persons was no
doubt serious. Since the victim and the respondent-accused persons
did not oppose anything with regard to the sentence awarded by the
Learned Trial Court and the Learned Appellate Court so let us examine
as to whether the Learned Appellate Court was justified only by
imposing fine without imposing any imprisonment upon the
respondent-accused persons.
Here in the given case, the allegation against the respondent-
accused persons was no doubt serious. Prosecution to prove the
charge only adduced seven witnesses. The IO could not be produced.
Even the injury reports of the victim were also not produced or proved
and surprisingly the Medical Officers who examined the victim were
not cited as witness in the charge-sheet by the IO. Prosecution also
did not take any step by approaching to the Court for ensuring
attendance of the said Medical Officers. Thus, it appears that there
was serious dereliction of duties on the part of the IO and even on the
part of the concerned A.P.P. who conducted the case on behalf of the
prosecution.
As already stated, out of seven numbers of witnesses PW-5
did not support the prosecution story i.e., the story of the victim. PW-
6 and PW-7 could not say anything about the prosecution case. From
their evidence, it only transpires that on the alleged day an
occurrence took place and they went to the house of the victim i.e.
the sister of the informant. On the basis of the evidence of the three
witnesses, nothing can be done. Now out of the rest four witnesses,
PW-4 is the mother of the informant and victim. She did not go to the
PO. She is a hearsay witness. So, no reliance can be placed upon her
evidence also.
Now if we go through the evidence of the father of the victim,
it appears that although in course of his examination-in-chief, he tried
to support the version of the victim but during cross-examination, it
appears that he did not utter the said facts to the IO of this case.
Meaning thereby, for the first time the said witness deposed before
the Court. So, legally there is also no scope to place any reliance upon
his evidence.
Now if we go through the evidence of the informant i.e. the
brother of the victim, it appears that regarding occurrence of offence
probably he could not say the exact date but he tried to support the
version of the victim.
The respondent-accused persons could not discredit his
evidence and also the evidence of the victim i.e. PW-2 which draws
the attention of the Court, the relevant provision of Section 134 of the
Evidence Act now Section 139 of BSA which provides as under:
"139. Number of witnesses.- No particular number of
witnesses shall in any case be required for the proof
of any fact."
From the aforesaid provision also, it appears that to prove a
criminal prosecution, it is the quality not the quantity of witness
requires to prove the fact of any case. Here in the case at hand, as
already stated, the respondent-accused persons failed to discard the
evidence of the informant and the victim PW-2. So in my considered
view, Learned Trial Court rightly convicted the respondents, found
them guilty which has been affirmed by the Appellate Court with
modification that instead of imprisonment, the sentence of fine was
imposed only.
17. It is also surprising that Learned Trial Court during trial did
not take any step to prove the statement of the victim recorded under
Section 164(5) of Cr.P.C by calling the Learned Magistrate who
recorded the statement. Even the prosecution also did not submit any
prayer before the Court to examine the Learned Magistrate who
recorded the statement of the victim to prove the contents of the
statement. Even no question was put to the victim regarding
confirmation of her signature over the statement recorded under
Section 164(5) of Cr.P.C. Thus, it appears that the prosecution also
did not apply proper mind to record the evidence of the victim during
trial. Similarly, serious lapses were made on the part of the
prosecutor who conducted the trial to ensure proper recording
evidence of the witnesses before the Court. So, considering the
materials on record at this stage, I do not find any scope to interfere
with the judgment of the Learned Appellate Court in absence of any
material evidence on record. In course of hearing of argument,
Learned Counsel for the appellant also failed to satisfy the Court
showing any cogent materials to interfere with the judgment delivered
by the Learned Appellate Court.
18. In the result, the appeal filed by the appellant is hereby
dismissed on contest. The judgment and order of conviction and
sentence delivered by Learned Additional Sessions Judge, North
Tripura, Dharmanagar dated 25.04.2024 is hereby upheld and
accordingly the same is affirmed.
However, before departing my part, it is to be mentioned here
that during trial of this case, Learned A.P.P. failed to conduct the case
properly. Learned A.P.P. did not submit any prayer to record the
evidence of the Medical Officer. Even he did not take any step to
prove the injury reports of the victim which were already available on
the record. Even the IO also failed to cite the Medical Officers as
witness in the charge-sheet. This was a serious lapse on his part. A
copy of the judgment and order be communicated to Secretary(Law),
Tripura for sensitizing the Learned Prosecution Counsels so that such
lapses may not occur in future.
A copy of the judgment also be communicated to DGP,
Tripura to direct all the investigating officer to ensure the names of
the Medical Officers in the witness list of the charge-sheet so that no
case is decided in absence of the evidence on record of the Medical
Officers and in absence of the report of concerned Medical Officers in
a case like injury.
With this observation, this appeal stands disposed of.
Send down the records of the Learned Courts below along
with a copy of this judgment and Order.
Pending applications(s), if any, also stands disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA 18:09:57 -07'00'
Deepshikha
