Bikram Debbarma And Ors vs State Of Tripura And Ors

[1] Heard Mr. M. K. Roy, learned counsel appearing for the appellants as well as Mr. S. Ghosh, learned Addl. PP appearing for the state.

[2] The appellants have been convicted under Section 304, Part-II of the IPC for committing homicide, not amounting to murder of one Nandalal Debbarma aged about 80 years. Pursuant to that conviction both the appellants have been sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs.25,000/- with default stipulation. If the fine money is realized, that shall be paid to the wife of the deceased. The judgment and order dated 09.05.2016 by which the appellants have been convicted and sentenced are under challenge in this appeal. The prosecution against the appellants had been launched on the basis of the complaint (Exbt-1) filed by one Sabana Debbarma (PW-1) revealing that her uncle-in-law namely, Mangal Debbarma (aged about 80 years) sold two mature tress to one Kalu Miah on 28.08.2014 and Kalu Miah fell down both the trees. Later on, Mangal Debbarma reported to Nandalal Debbarma that he had sold out one of tree. Over that issue, a heated altercation took place between Mangal Debbarma and Nandalal Debbarma.

[3] In the afternoon of 28.08.2014, Mangal Debbarma told her [the complainant‟s] father-in-law Nandalal Debbarma that he had sold out one tree. In reply he had asked why then two trees were cut down. This ensured the altercation. At that time, Mangal Debbarma called his son-in-law Bikram Debbarma. Both of them started giving fists and blows to Nandalal Debbarma. Mangal Debbarma hit on the head of Nandalal Debbarma with a branch of tree. Failing to bear inch, Nandalal Debbarma fell on the ground. She raised alarm and the people from the neighbourhood rushed to the spot. With the help of the people, Nandalal Debbarma was sent to the GBP Hospital and he died there at the intervening night of 28.08.2014 and 29.08.2014 at about 02.15 am.

[4] On the basis of the said complaint Lefunga PS Case No.034 of 2014 under Section 302/34 of the IPC was registered and taken up for investigation. The police report was filed on completion of the investigation. As the offence was exclusively triable by the court of Sessions, the police papers were committed to the court of the Sessions Judge, West Tripura, Agartala. The case, however, for trial, was transferred to the court of the Additional Sessions Judge, Court No.4, West Tripura, Agartala. In the sessions division, the case was registered as S.T No. 101(T-1) of 2014. Having taken cognizance, the charge was framed against the appellants under Section 302 read with Section 34 of the IPC to which both the appellants pleaded innocence and claimed to be tried.

[5] In order to substantiate the charge, the prosecution adduced as many as 10 witnesses (PWs 1-10) were adduced and the documentary evidence (Exbt-1 to 7) including the post mortem examination report (Exbt-4) were admitted in the evidence. After the prosecution evidence was recorded, both the appellants were examined under Section 313 of the Cr.PC to have their response in respect of incriminating materials that surfaced in the evidence. Thereafter, the Additional Sessions Judge on appreciation of the evidence as a whole returned the finding of conviction and the order of sentence as stated.

[6] Mr. Roy, learned counsel appearing for the appellants has submitted that the entire prosecution‟s case is based on untenable evidence. The complainant has claimed that she saw the occurrence. She (PW-1) has testified that Mangal Debbarma (the appellant No.2) called his son-in-law (the appellant No.1) and both of them started giving fists and blows on her father-in-law. Further, Mangal Debbarma (the appellant No.2) hit on the head of Nandalal Debbarma, he had lost his sense and fell on the ground. She raised alarm. The people from neighbourhood rushed to the place of occurence. It is necessary to note that PW-1 has stated in the complaint (Exbt-1) as follows:

"I noticed that Bikram Debbarma took hold of my father-in-law tightly and Mangal Debbarma hit the head of my father in law with a branch of tree."

[7] PW-1 has stated in the trial that Mangal Debbarma hit on the head of her father with a branch of tree and his son-in-law, namely Bikram Debbarma came to the spot and started giving fists and blows to her father-in-law. Her father-in-law became senseless. Thereafter, her father-in-law was taken to the GBP Hospital.

[8] PW-2, Bapi Debbarma has stated that on 28.08.2014, he saw the scuffling between Nandalal Debbarma, Mangal Debbarma and Bikram Debbarma. Mangal Debbarma hit Nandalal Debbarma with a stick of teak tree and Bikram attacked Nandalal Debbarma with fists and blows. In his cross-examination, he has admitted that Sabana Debbarma, [the complainant] is his relative.

[9] PW-3, Rathin Debbarma has stated that on 28.08.2014, Nandalal‟s wife rushed to their home and had stated that Bikram Debbarma and Mangal Debbarma were beating her husband and her husband became senseless. The other statements, which this witness made, are not relevant in the context.

[10] PW-4, Surja Debbarma has stated in the trial that he noticed the altercation between Mangal Debbarma and Nandalal Debbarma. Mangal Debbarma had beaten Nandalal Debbarma, Nandalal became senseless and fell on the ground. Later on, Bikram came and gave fists and blows to Nandalal Debbarma. Nandalal was shifted to GBP Hospital. PW-4 has further stated that he heard that Nandalal died during his treatment.

[11] PW-5, Mukunda Debbarma was at his house on 28.08.2014 at about 4 pm. On hearing hue and cry he had rushed to the house of Nandalal and saw Nandalal and Mangal were scuffling. Mangal Debbarma hit Nandalal Debbarma on his head with a lathi. As a result of which the victim became senseless and fell on the ground. Then Bikram came and gave fists and blows to Nandalal Debbarma. In the cross-examination, this witness stood by his statement what he made in the examination in chief.

[12] PW-6, Nityananda Sarkar had received the complaint (Exbt-1) on 29.08.2014 and arranged shifting of Nandalal to the hospital. Subsequently, the victim died in the hospital. Thereafter, he had registered the FIR and assigned the investigation to Tarani Jamatia one Sub-Inspector of the said Police Station (PW-8).

[13] PW-7, Dr. Jayanta Sankar Chakraborty conducted the post mortem examination over the dead body of Nandalal Debbarma on 29.08.2014. According to PW-7, Nandalal Debbarma died in the coma due to head injury. He has identified his report. In the cross-examination, he has stated that the injury Nandalal Debbarma received might have occurred on fall on any hard substance.

[14] PW-8, Budhrai Debbarma has also claimed to be an eye witness of the occurrence that took place on 28.08.2014 at about 4.30 pm. He saw Nandalal and Mangal engaged in a hot altercation. Later on, he heard that Mangal gave a blow on the head of the Nandalal with a branch of tree. Nandalal had received serious injury and shifted to the GBP hospital for treatment. Afterwards Nandalal succumbed to his injury on the following night.

[15] PW-9, Samir Barman, Constable of Police has testified that he had taken photograph of the deceased. On 28.08.2014, he, at the direction of the Assistant Commandant of District Armed Reserve (ACDAR) Police, had reported to Lefunga PS for taking photograph of the deceased and other places relating to the transaction of offence. In the cross-examination he has stated that he took photographs between 10 am and 2 pm.

[16] PW-10, Tarani Jamatia, the investigating officer, has given a short and brief narrative about how he had conducted the investigation by appearing on the place of occurrence, preparing the site map and recording the statements of the witnesses on the very date of the occurrence. PW-10 had also collected the post mortem examination report and thereafter filed the charge-sheet against both the appellants. But he has submitted that some statements were recorded by one woman constable at his dictation.

[17] From the post mortem examination report what appears is that there was a single injury (contusion) on left cheek along the left mandibular area, extending from left zygoma having dimension : 9cm x 6cm. The doctor who carried the post mortem examination has further stated that such injury can be had if someone falls suddenly on a hard substance. But, there is no evidence that the victim had such fall on hard substance. Even such story has not been introduced by the accused during the examination under Section 313 of the CrPC. Both the appellants have been thus made jointly liable for death of Nandalal Debbarma by virtue of Section 34 of the IPC. But this court on appreciation of evidence has found that the witnesses have spoken differently in respect of the participation of the appellant No.1, Bikram Debbarma.

[18] The complainant has stated that Bikram and Mangal had been in the altercation and at one point Bikram held Nandalal when Mangal hit on the head of Nandalal with a „branch of tree‟. Nandalal lost his sense failing to bear with and fell on the ground. But PW-2 has stated that Bikram came to the spot later and gave fists and blows to Nandalal. PW-3 is not an eye witness. The wife of Nandalal Debbarma has stated broadly and without particularizing to PW-3 that Bikram and Mangal beat her husband. But the wife of Nandalal Debbarma was not examined in the trial. As such, that evidence of PW-3 is inadmissible and cannot be looked into for purpose of corroboration or as evidence on a particular fact.

[19] PW-4 also stated that Mangal beat Nandalal and Nandalal became senseless and thereafter Bikram came and gave fists and blows to Nandalal. PW-5 also noticed "Nandalal and Mangal were quarreling and Mangal hit Nandalal on his head with a lathi." Bikram came later and gave the fists and blows. Nandalal was thereafter shifted to the hospital and he died there.

[20] PW-6 is not an eye witness but he narrated the story as heard from the complainant. PW-7 supported that there was injury on the head of Nandalal and thus, he has corroborated his further observation in the post mortem examination report (Exbt-4). PW-8 has also stated that there was quarrel between Mangal and Nandalal but he was not in the place of occurrence. He had heard that Mangal gave a blow with a branch of tree and Nandalal fell seriously ill.

[21] PW-9 is a formal witness who took the photographs of Nandalal and of the place of occurrence. PW-10 is the investigating officer. But he has not revealed any independent fact. It appears that squarely that there are two sets of evidence in respect of the role played by Bikram Debbarma as surfaced in the evidence. As such, the benefit of doubt should go to Bikram Debbarma [the appellant No.1]. Even there is no evidence of common intention in furtherance of the offence.

[22] Having observed thus, the judgment and order of conviction of sentence, so far it related to Bikram Debbarma, stands interfered with and set aside. But this court is not persuaded by the submission of Mr. Roy, learned counsel appearing for the appellants that there is no evidence against Mangal Debbarma [the appellant No.2] that the injury that Nandalal had received was an injury from sudden fall on the hard substance. There is no such evidence. Mere suggestion to a particular witness is not the proof of fact for the purpose of getting of the criminal liability. As such, the conviction of Mangal Debbarma stands affirmed.

However, this court will not consider the prayer for probation but on consideration of the age of the appellant No.2 at the time of occurrence, this court would reduce the sentence to 3 years rigorous imprisonment, but there shall be no interference with fine or with the default stipulation.

It is made absolutely clear that detention that the appellant No.2 has suffered during the investigation and trial shall be set off from the substantive imprisonment.

Having observed thus, this appeal stands partly allowed. The appellant No.1 shall be set at liberty forthwith if he is not wanted in other case.

Send down the LCRs forthwith.