Tripura High Court
Sri Benu Debnath And Anr vs The State Of Tripura on 14 May, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.68 OF 2024
Sri Benu Debnath and anr.
...... Appellant(s)
Versus
The State of Tripura.
.......Respondent(s)
For the Appellant(s) : Mr. S. Lodh, Advocate.
For the Respondent(s) : Mr. Raju Datta, P.P.
Date of hearing and delivery of
Judgment & Order : 14.05.2025.
Whether fit for reporting : YES/NO.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
J U D G M E N T & O R D E R(ORAL)
This present appeal has been filed against the
impugned Judgment of Conviction and Order of Sentence dated
18.11.2024 and 19.11.2024 respectively, passed by the learned
Additional Sessions Judge, Khowai Judicial District, Khowai, in
Sessions Trial(T-II) 4 of 2021, whereby the learned Additional
Sessions Judge, Khowai, convicted the appellants for committing
offences, punishable under Sections 323, 456 and 326 of Indian
Penal Code, and sentenced them to suffer Rigorous Imprisonment
for 6(six) months with a fine of Rs.500/-, in default of payment of
fine they shall suffer Simple Imprisonment for 1(one) month for
committing offence, punishable under Section 323 of IPC; and
they were further sentenced to suffer Rigorous Imprisonment for
a period of 1(one) year with a fine of Rs. 1,500/-, in default to
suffer further Simple Imprisonment for 3(three) month for
committing offence punishable under Section 456 of IPC; and
they were also sentenced to suffer Rigorous Imprisonment for a
term of 5(five) years with a fine of Rs.3,500/-, and in default of
payment of fine, to suffer further Simple Imprisonment for 6(six)
month for committing offence, punishable under Section 326 of
IPC.
2. The brief facts of the case are that on
09.08.2019, one Sri Rajat Debnath lodged a written complaint
alleging, inter alia, that on 08.08.2019, one of his cows damaged
some brinjal plants belonging to Benu Debnath. Due to this
incident, at around 6:00 p.m. on the same day, Benu Debnath
and another individual, namely Paresh Maran Debnath (i.e.,
appellant Nos. 1 and 2), allegedly entered the complainant's
dwelling hut and brutally assaulted his mother, Smt. Gita
Debnath, with a spade with the intention to kill her, thereby
causing grievous bleeding injuries to her right hand, face, and
chest. It is further alleged that the appellants also assaulted the
complainant's wife, Smt. Kanan Debnath, with the handle of the
spade, causing grievous injuries. When the complainant raised an
alarm, the appellants assaulted him and his six year old son,
Ayush Debnath, with fists, kicks, and blows. Hearing their cries,
villagers arrived, and the appellants fled from the scene. The
injured persons were initially taken to Kalyanpur CHC and,
considering the critical condition of the mother and wife of the
informant, they were referred to AGMC & GBP Hospital, Agartala,
for further treatment.
3. On receiving the complaint, the Officer-in-Charge of
Kalyanpur P.S. registered Kalyanpur P.S. Case No. 2019/KLN/068
dated 09.08.2019 under Sections 456/325/326/323/307/34 of
IPC. After initiating the investigation, both appellants were
arrested on 19.06.2020. Upon completion of the investigation,
charge sheet No.23 of 2020 dated 29.06.2020 was filed against
both appellants under Sections 456/325/447/323/326/307/34 of
IPC. By Order dated 06.01.2021, the case was committed to the
learned Sessions Judge, Khowai Judicial District. Subsequently, by
Order dated 27.01.2021, the learned Sessions Judge transferred
the case to the learned Assistant Sessions Judge, Khowai Judicial
District, for disposal in accordance with law. Charges were framed
under Sections 323/456/427/326/34 of IPC.
4. To establish the case, the prosecution examined 13
(thirteen) witnesses. The appellants did not adduce any witnesses
in their defence. Later, as per Order dated 05.07.2024, the case
was transferred to the learned Additional Sessions Judge, Khowai
Judicial District.
5. After hearing both sides, the learned Additional
Sessions Judge, Khowai, vide the impugned Judgment dated
18.11.2024, convicted the appellants as stated above.
6. Heard Mr. Sankar Lodh, learned counsel appearing
for the appellants, and Mr. R. Saha, learned Additional Public
Prosecutor appearing for the State-respondent.
7. Mr. Lodh, learned counsel appearing for the
appellants, submitted that when the appellants approached this
Court with a bail petition, it was allowed on the ground that the
ingredients of Section 326 of IPC were absent. Therefore, even if
the conviction under Sections 323 and 456 IPC is upheld, the
impugned judgment does not contain any reasoning for not
granting the benefit of probation under the Probation of Offenders
Act. He further submitted that the medical evidence, i.e., the
depositions of PWs 9, 12, and 13 (Doctors), indicated that the
injuries sustained were not grievous in nature and were caused
by blunt objects, not sharp weapons. As per the prosecution's
own case, the incident stemmed from a dispute over a cow
entering the appellants' garden, which does not amount to a
serious or heinous offence justifying application of Section 326 of
IPC. Learned counsel also argued that the trial court committed a
grave error in not extending the benefit of probation.
To support his said argument, he relied upon paras 2,
11, 26, 29, and 31 of the judgment of the Hon'ble Supreme
Court in passed in Chellammal and Anr. Vs. State
represented by the Inspector of Police [Criminal Appeal
No. 2065 of 2025, dated 22nd April 2025. The same is
produced here-in-under:-
"2. The two appellants, mother-in-law and husband,
respectively, of the deceased were jointly tried4 for commission of
offences punishable under Section 304-B and Section 498A, Indian Penal
Code5. The Sessions Judge (Mahila Court), Coimbatore6, vide its
judgment and order dated 25th May, 2012, acquitted the appellants of
the charge under Section 304-B, IPC but convicted them under Section
498-A, thereof. While the 1st appellant was sentenced to a year's
rigorous imprisonment, the 2 nd appellant was sentenced to two years'
rigorous imprisonment. Both the appellants were sentenced to fine too.
11. Insofar as relevant for the purpose of the present appeal,
Section 360, Cr. PC enabling release on probation of good conduct
ordains that when any person not under twenty-one years of age is
convicted of an offence punishable with fine only or with imprisonment
for a term of seven years or less, and no previous conviction is proved
against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, character or antecedents of the
offender, and to the circumstances in which the offence was committed,
that it is Probation Act
360. Order to release on probation of good conduct or after
admonition.--(1) When any person not under twenty-one years of age is
convicted of an offence punishable with fine only or with imprisonment
for a term of seven years or less, or when any person under twenty-one
years of age or any woman is convicted of an offence not punishable with
death or imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, character or antecedents of the
offender, and to the circumstances in which the offence was committed,
that it is expedient that the offender should be released on probation of
good conduct, the Court may, instead of sentencing him at once to any
punishment, direct that he be released on his entering into a bond, with
or without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Court may direct
and in the meantime to keep the peace and be of good behaviour:
26. On consideration of the precedents and based on a comparative
study of Section 360, Cr. PC and sub-section (1) of Section 4 of the
Probation Act, what is revealed is that the latter is wider and expansive
in its coverage than the former. Inter alia, while Section 360 permits
release of an offender, more twenty-one years old, on probation when he
is sentenced to imprisonment for less than seven years or fine, Section 4
of the Probation Act enables a court to exercise its discretion in any case
where the offender is found to have committed an offence such that he is
punishable with any sentence other than death or life imprisonment.
Additionally, the non-obstante clause in sub-section gives overriding
effect to sub-section (1) of Section 4 over any other law for the time
being in force. Also, it is noteworthy that Section 361, Cr. PC itself, being
a subsequent legislation, engrafts a provision that in any case where the
court could have dealt with an accused under the provisions of the
Probation Act but has not done so, it shall record in its judgment the
special reasons therefor.
29. For the foregoing reasons and in the light of the factual matrix, we
are unhesitatingly of the opinion that the Sessions Judge and the High
Court by omitting to consider whether the appellants were entitled to the
benefit of probation, occasioned a failure of justice. Consequently, there
was no worthy consideration as to whether the appellants could be
extended the benefit of probation.
30. We are conscious that in MCD (supra), since followed in State of
Madhya Pradesh v. Man Singh25, this Court has held that the report of
the probation officer referred to in sub-section (2) of Section 4 of the
Probation Act is a condition precedent and, therefore, must be complied
with by the trial courts and the high courts. Importantly, it has also been
held that the courts may not be bound by such report. In such view of
the matter, we need to make appropriate directions.
31. Accordingly, while maintaining the conviction recorded against the
appellants but looking to the facts and circumstances, we are inclined to
remit the matter to the High Court for limited consideration of the
question of grant of probation to the appellants upon obtaining a report
of the relevant probation officer. It is ordered accordingly."
Learned counsel contended that the appellants
should be granted the benefit of probation in light of the Apex
Court's Judgment as stated above. He submitted that while
conviction under Sections 323 and 456 of IPC may be upheld, the
appellants should be released on probation upon obtaining the
requisite report.. He maintained that conviction under Section 326
of IPC is not applicable in this case.
8. On the other hand, Mr. R. Saha, learned
Additional Public Prosecutor, submitted that the prayer of the
appellant-counsel regarding Section 326 of IPC may be
considered. However, as for the release of the appellants on
probation is concerned, the matter should be remanded to the
trial court. The trial court may decide on the question of probation
after receiving and considering the requisite report
9. Heard and perused the evidence on record.
10. Before arriving at a conclusion, let us examine the
depositions of some of the important witnesses.
11. PW-6 Smt. Kanan Debnath deposed that the
informant, Rajat Debnath, is her husband, who lodged this case
against the accused persons, namely Paresh Debnath and Benu
Debnath. PW-6 further deposed that on 08-08-2019 their cow
entered the brinjal garden of appellant-Benu Debnath and
damaged brinjal trees, and that over this issue, on the same date
at about 5:00-6:00 p.m., the appellants, Benu Debnath and
Paresh Debnath, illegally entered their house and damaged the
doors and windows of their dwelling hut. PW-6 also deposed that
accused Paresh Debnath assaulted her mother-in-law with a
spade and that accused Benu Debnath assaulted her with a lathi.
PW-6 again deposed that the accused persons also assaulted her
and her son, Ayush Debnath, with a lathi. They raised an alarm
and, on hearing it, neighbouring people came to their house,
whereupon the accused persons fled. The neighbours then shifted
them to Kalyanpur PHC for treatment, and from there PW-6, her
mother-in-law Gita Debnath, and her son Ayush Debnath were
referred to AGMC & GBP Hospital for better treatment. She was
discharged on 10-08-2019, and her mother-in-law underwent
treatment at AGMC & GBP Hospital for about one and a half
months.
12. PW-7 Smt. Gita Debnath deposed that the
informant, Rajat Debnath (PW-4), is her son, who lodged this
case against Paresh Debnath @ Maran and Benu Debnath. PW-7
further deposed that on 08-08-2019 their cow entered the brinjal
garden of Benu Debnath and damaged brinjal trees, and that over
this issue, at about 6:00 p.m., the accused illegally entered their
house and began abusing her daughter-in-law, Smt. Kanan
Debnath (PW-6), with filthy language. Hearing this, PW-7 and
Smt. Kanan Debnath entered their room, but the accused then
broke the doors and windows of their dwelling hut. Paresh
Debnath assaulted her with a spade and Benu Debnath with a
lathi. The accused also assaulted Smt. Kanan Debnath and her
grandson Ayush Debnath (PW-8) with a lathi and struck her son
with fists and blows. They raised an alarm, neighbours came, and
the accused fled. Because of the assault, PW-7 sustained severe
injuries to her hands and other parts of the body. Neighbours,
including Babul Debnath (PW-3), took them to Kalyanpur PHC,
from where PW-7, PW-6, and PW-8 were referred to AGMC & GBP
Hospital, where PW-7 was treated for more than a month.
13. PW-8 Master Ayush Debnath stated: "One day
Benu uncle and Maran uncle came to our house and assaulted my
father Rajat Debnath, my mother Kanan Debnath, and my
grandmother Gita Debnath. Maran uncle assaulted my
grandmother with a spade and Benu uncle with a lathi." He
identified both accused in court. In cross-examination he denied
suggestions that no such assault occurred or that he was
deposing falsely at his mother's dictation.
14. PW-9 Dr. Abhijit Acharjee deposed that on
08-08-2019 at 9:52 p.m. he attended Smt. Kanan Debnath,
brought by her husband with alleged history of physical assault
causing trauma to both elbows. No external injury was found; X-
rays of chest and elbows were taken, and orthopaedic
consultation showed no bony lesion. The injury was simple and
due to blunt trauma. He prepared the injury report (Exbt. 4). In
cross-examination he stated such injuries could result from
causes other than assault.
15. PW-12 Dr. Sulakshana Mitra deposed that on
17-10-2019 Ayush Debnath visited AGMC & GBP Trauma Centre
alleging assault. She found an abrasion on the back below the left
scapula; no other external injury was seen. The patient was not
admitted but advised to visit Orthopaedics. The injury was slight
and could have been caused by a blunt weapon. She prepared the
injury report (Exbt. 10). In cross-examination she agreed that a
fall on a hard surface could cause such injury.
16. PW-13 Dr. Swarajit Debbarma deposed that
on 08-08-2019 Smt. Gita Debnath was referred from Kalyanpur
CHC to AGMC & GBP. Examination showed multiple lacerated
injuries (1-5 cm) over the chin, right arm, posterolateral right
forearm, and puncture on left forearm; fractures of both bones of
the right forearm and of the ulna on the left forearm. All were
caused by a blunt object. She was discharged on 19-09-2019. He
prepared the injury report (Exbt. 11). In cross-examination he
stated such injuries could also result from a fall on a hard surface.
17. After weighing the evidence, we find that the
charge under Section 326 of IPC does not hold water. On perusal
of the statement of victim, Smt. Gita Debnath, it is found that the
alleged weapon as were used for assaulting the victim were one
spade and one lathi. However, no cut injury caused by any sharp
edged weapon like spade is found to have been indicated by the
medical officers in the concerned injury reports. In fact, the
medical experts (PWs 9, 12, 13) unanimously describe the
wounds as blunt-force injuries. One doctor even admitted that a
bad fall on a hard surface could explain the fractures. It is also
seen from the record that, the incident stemmed from a dispute
over a cow entering the appellants' garden, which does not
amount to a serious or heinous offence justifying application of
Section 326 of IPC. Because Section 326 of IPC requires both a
"dangerous weapon" and "grievous hurt", and the prosecution
failed to prove the same beyond reasonable doubt, the conviction
under Section 326 of IPC as awarded by the Court below to the
appellants herein in the impugned Judgment is set aside.
18. The eyewitnesses PW-6 (Smt. Kanan
Debnath), PW-7 (Smt. Gita Debnath), and PW-8 (Master Ayush
Debnath) whose testimony remained materially unshaken in
cross-examination, clearly establish that the appellants, in the
heat of a neighbourhood quarrel, unlawfully entered the
informant's dwelling hut and caused hurt to the occupants. Their
consistent version, corroborated by contemporaneous injury
reports, fully satisfies the ingredients of Sections 323 and 456 of
IPC. Consequently, the convictions under these two sections as
passed by the Court below in the impugned Judgment are
affirmed.
19. Once Section 326 of IPC is out of the picture,
the heaviest sentence left is a year's jail under Section 456 of
IPC. The Probation of Offenders Act says the Court must seriously
consider releasing a first-time offender on probation. The same
stood un-addressed. Therefore the matter is remanded back to
the Trial court to adjudicate the same in the light of the Hon'ble
Apex Court Judgment passed in Chellammal and anr. Vs. State
represented by the Inspector of Police(supra) as per
procedure and decide the matter in accordance with law.
20. With the above observation and directions,
this present appeal is disposed of. As s sequel, stay if any stands
vacated. Pending application(s), if any also stands closed.
JUDGE
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2025.05.21
SINGHA 13:44:30 +05'30'
