Braja Gopal Jamatia vs State Of Tripura

[1] Heard Mr. D. J. Saha, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State.

[2] This petition, filed under Section 397(1) read with 401 of the Cr.P.C. has questioned the judgment dated 07.01.2019 delivered in Crl. A. No.06 of 2018 by the Additional Sessions Judge, Gomati Judicial District, Udaipur, Tripura.

[3] By the said judgment dated 07.01.2019, the judgment dated 10.01.2018 delivered in Case No.PRC(WP) 58 of 2015 by the Judicial Magistrate 1st Class, Udaipur, Gomati Tripura has been upheld.

[4] The petitioner has been convicted under Section 325 of the IPC for voluntarily causing grievous hurt to the victim (PW1) and sentenced to suffer rigorous imprisonment for 2 (two) years and to pay fine of Rs.5,000/- with default stipulation.

[5] Based on the complaint filed by PW-7, Mangal Purna Jamatia on 06.10.2014 [Exbt.1] R.K. Pur, P.S. Case No.231 of 2014 under Section 325 of the IPC was registered. In the complaint, it has been alleged by Mangal Purna Jamatia, the elder brother of the victim namely, Paidahari Jamatia (PW1) that on hearing hue and cry, the wife of PW1 along with the other people rushed into the jungle on 02.10.2014. There the informant, PW7, and other people found the victim in a semi-conscious state with bleeding injury on his person. The victim‟s wife (PW2), the complainant (PW7) and others had taken the victim (PW1) to the hospital where the victim was treated and after few hours, he was referred to the G.B.P. Hospital at Agartala.

[6] The said case was investigated by Sri Raj Prasad Jamatia (PW 12) who was posted at the relevant point of time at Pitra Out Post under R. K. Pur Police station. He collected the injury report and also prepared the site map in addition to recording of statements of the material witnesses. Later on, having found a prima facie case, he filed the charge sheet No.197/14 on 14.12.2014 under Section 325 of the IPC. The major and inalienable ingredient of Section 325 is "grievous hurt‟. Section 325 of the IPC provides that whoever, except in the case provided by Section 335, voluntarily causes grievous hurt shall be punished with imprisonment which may extend to 7 (seven) years and shall also be liable to fine. The grievous hurt has been defined under Section 320 of the IPC. That definition provides as under:

Grievous hurt.- The following kinds of hurt only are designated as "grievous".-

First.- Emasculation.

Secondly.- Permanent privation of the sight of either eye.

Thirdly.- Permanent privation of the hearing of either ear,

Fourthly.- Privation of any member or joint.

Fifthly.- Destruction or permanent impairing of the powers of any member or joint.

Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth.

Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

[7] The definition of grievous has been liberally interpreted by the apex court and it has been held that any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain or unable to follow his ordinary pursuits be treated as the „grievous hurt‟ beyond the categories as specified by Section 320 of the IPC.

[8] From a bare reading of Section 320 of the IPC, it surfaces that emasculation, permanent prevention of the sight of either eye, permanent privation of either ear, privation of any member of joint, destruction of the permanent repairing of the parts of any member of joint, permanent disfiguration on the head or face and fracture or dislocation of a bone or tooth. In the present context the prosecution did not charge the petitioner to cause any of those hurts illustrated at first to seventh under Section 320 of the IPC. If this injury as received by the victim is to be brought under any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severely bodily pain or unable to follow his ordinary pursuits it has to be firstly shown that the nature of the hurt was as such to presume likelihood to endanger life or to put the petitioner in severe bodily pain continuously for 20 days by restraining him to follow the ordinary pursuits.

[9] In this case, the injury report has been placed in the trial and from the injury report it surfaces that according to the medical opinion, the victim had received injury on the left frontal convexity having 15 mm diameter. As a result, there was soft tissue swelling. The victim was admitted in the G.B.P. hospital on 02.10.2014 and he was discharged on 28.10.2014. Thus, it shows the victim was hospitalized for over 20 (twenty) days.

[10] From the injury report, [Exbt.4] it further appears that the place where the injury was received by the victim is vulnerable and it might have caused serious harm to life. But Mr. Saha, learned counsel for the petitioner has drawn the attention of this court to the history that has been recorded in the medical records of G.B.P. hospital. For purpose of reference the note as has been given by the attending doctor in the G.B.P. hospital under the relevant coloumn on symptoms is reproduced hereunder:

"Trauma head & left pinna following alleged fall. He was found by other wood cutters in a low lying area, injured & unconscious at about 2.00 p.m. on 02.10.14. O.E Pt semiconscious, afefrile, restless, G.C.S; 10/15. Not responding to verbal command. N.C.C.T. Brain was done on 4.10.14. Eye surgeon was consulted on 4.10.14 for swelling and ecchymoses Deyl and advised accordingly, reviewed again on 15.10.14. Treated conservatively Repeat N.C.C.T. Brain was done on 22.04.14."

[11] Mr. Saha, learned counsel thereafter, and for obvious reason, has pressed the testimony of PW11, Dr. Shyam Sundar Saha who had examined the victim (PW1). Dr. Saha (PW11) has reiterated the nature of injury as reflected in the injury report. He has further stated that he found the following injury :

Dressed wound over head, blood clot., Left eye-Eye lids swelling, Ecchymosis, Conjunctiva-conjested and chemosed, Ant. Seg-within normal limit, visual acuity cannot be recorded of bed side. On 15.10.14 Drooping of upper lid(left) (present).

C.T. Scan of Brain (04.10.14):-I) Accute E.D.H. of left frontal convexity with maximum diameter 15mm, ii) Multiple H.C. of right frontal temporal and parietal convexities and of left frontal convexity, iii) Acute S.D.H. along left frontal parietal convexity, iv) Multiple fracture involving left side of frontal bone, right parietal bone, left side of ethmoid bone with adjacent soft tissue swelling, v)collection seen within left frontal sinus and within ethmoid sinuses.

Nature of injury was grievous and caused by any hard object. In my opinion it is a case of head injury and may be accidental or homicidal in nature, treated conservatively and discharged on 28.10.14 with advice." [Emphasis added]

[12] According to PW11, nature of injury was grievous and caused by any hard object. In his opinion, that was a case of head injury and it may be accidental or „homicidal‟ in nature and treated conservatively and discharged on 21.10.2014 with advice. In the cross-examination, Dr. Saha (PW11) has clarified that if a person falls from a tree on a hard surface that type of injury could occur. Mr. Saha, learned counsel has further submitted that the prosecution did not take any care either to explain the note to the effect that the victim had received the trauma from fall, as recorded in the history of injury in the medical records.

[13] That apart, Mr. Saha, learned counsel has submitted that immediately after the occurrence, PW2 was supposed to be aware of the purported „assault‟, as claimed in the complaint that was filed after 4 (four) days. Moreover, in the complaint, no reason has been ascribed for unusual delay.

[14] Mr. Saha, learned counsel has submitted that from the flow of allegations it appears that except the victim (PW1) nobody was in a position to know who had assaulted the victim if he was at all assaulted. The victim has no doubt testified that he was assaulted by Braja Gopal Jamatia by a lathi.

In the examination-in-chief, the victim (PW1) has stated that he could identify the lathi by which Braja Gopal assaulted him and he identified the said lathi when a lathi was shown [Ext. M.O. 1]. But in the cross-examination as carried out by the defence he has made some strange statements striking at the root of the statement made during the examination-in-chief. He has stated in the trial as follows:

"1. I did not state to the police the material of the "Lathi" by which I was assaulted.

I did not give that "lathi" to the Police."

In the seizure list, the lathi has been described to be made of a branch of a tree, but it has not been disclosed who had identified the lathi for purpose of recovery or on whose identification the said lathi was seized. It has been only commented in the seizure list that it was learnt that it was that lathi by which the victim was assaulted.

But the victim has categorically stated he did not identify the lathi to the investigating officer.

[15] The first disclosure that had been made, according to Mr. Saha, learned counsel, was made to the attending doctor of the hospital who prepared the history sheet of the "assault" and there it has been categorically stated on behalf of the victim as recorded by the hospital authority that the injury which was reported to that hospital was received from fall, not from any assault.

[16] Based on this entry, Mr. Saha, learned counsel has submitted that it is clear that for the enmity as claimed by the prosecution, the petitioner has been falsely implicated in the case for purpose of harassment and such implication is the outcome of parleys that took in the aftermath of the occurrence till the complaint was filed after 4 (four) days.

[17] It appears from the records that the wife of the victim was in the hospital when the victim was admitted. Even PW7 (the younger brother of the petitioner) was present there. PW2 Biswa Rani Jamatia, as it appears, has been differently noted in the complaint. She has been referred as Bindhyabasi Jamatia. PW2 has stated that she took her husband to Udaipur hospital with other villagers. She came to know from her husband that Braja Gopal Jamatia had assaulted him by a lathi.

But in the cross-examination she could not give the details of the day on which the said incident occurred. However, she has categorically stated that she had come to know of the occurrence from her husband.

[18] PW7 being the complainant had played a very important role for unleashing the investigation. He has made a very significant statement in the trial, which is as follows:

"From there he was referred to GBP Hospital. My brother told me that Brajagopal Jamatia assaulted him with a segun stick as two days before the incident one quarrel occurred between my sister-in-law and the wife of Brajagopal Jamatia. Thereafter I lodged ejahar which was written by Jamuna Jamatia as per my version. Thereafter I signed in the ejahar."

The sister in law as referred by PW7 is undoubtedly PW2, but she had not vouched for any such occurrence.

[19] Mr. Saha, learned counsel appearing for the petitioner has therefore submitted that the delay in filing of the complaint smacks of parlays particularly when no explanation has been given by the complainant (PW7) either in the trial or in the complaint itself. Thus, the prosecution case is seriously visited by doubts and benefit, therefore, must go to the accused person.

[20] In order to repel the submission made by Mr. Saha, learned counsel appearing for the petitioner (the accused), Mr. S. Ghosh, learned Addl. P.P. has submitted that the evidence is overwhelming inasmuch as none other than the injured witness [the victim-PW1] has categorically stated that Braja Gopal Jamatia assaulted him by a lathi which was later on recovered and identified as the weapon of assault by the victim in the trial.

[21] According to Mr. Ghosh, learned Addl. P.P., the persons who immediately rushed to the place of occurrence after registering a loud cry of PW2 have in unison stated that the complainant has stated to Jamuna Jamatia (PW3) that Braja Gopal Jamatia assaulted Paida Hari Jamatia by a lathi. This is not his personal knowledge but a transferred knowledge.

[22] Mr. Ghosh, learned Addl. P.P. has placed emphasis that there is cannot be any earthly reason to disbelieve the victim (PW1) about the occurrence and he has well-explained why he was assaulted by the petitioner.

[23] PW4 is clearly a hearsay witness inasmuch as he did not even disclose from whom he came to know that the petitioner had assaulted PW1 by a lathi. He was witness to the seizure of lathi (Exbt. M.O.1).

[24] PW5, Harisadhan Jamaita is also a hearsay witness as he has not disclosed from whom he gathered the knowledge that Paida Hari Jamatia was assaulted by Braja Gopal Jamatia.

[25] PW6, Sachin Kr. Jamatia has introduced a different episode in the trial by stating that he brought the dispute to the knowledge of "Choudhury" of the village. He made his best effort to bring the parties to a conciliation but Braja Gopal Jamatia denied to compromise the matter. He has also stated that he did not even tell the police officer that Paida Hari Jamatia (PW1) went to Segun Bagan, the area which is covered by Teak trees.

[26] PW7, Mangalpurna Jamatia has been substantially discussed while recording submission of Mr. Saha, learned counsel and hence, it is not repeated.

[27] PW8, Jugalsadhan Jamatia, has stated in the trial that he was reported that PW2 found the victim in the bleeding condition. Thus, PW8 is as well a hearsay witness.

[28] PW9, Uttamhari Jamatia has stated that when the lathi was seized he was present there and he had signed over the seizure list (Exbt.3) as the witness.

[29] PW10, Raj Sadhan Jamatia is the father of PW7, the complainant. He has bluntly stated in the trial that following a previous dispute the petitioner had assaulted PW1 and left him at a place inside the jungle in the injured condition. The victim‟s wife found him on search and she had raised hue and cry. Being attracted by the said hue and cry, lot of villagers gathered there and heard the occurrence. PW10 has clearly stated that he has not seen the occurrence. Therefore, his testimony does not bear any additional value.

[30] PW11, Dr. Shyam Sundar Saha has been already discussed and his observations as relevant to the context have been extracted.

[31] Having appreciated the evidence and analyzed the submissions made by the learned counsel for the parties, this court does not have any confusion or gap in understanding that the injury received by the PW1 falls within the category of grievous hurt as defined under Section 320 of the IPC.

[32] In State of Karnataka Vs. Shivalingaiah reported in 1988 CRI. L. J. 394 : AIR 1988 SC 115, the apex court has observed that the act of squeezing the testicles of a person would be a offence of causing grievous hurt meaning whatever act by which any hurt is caused, if so found is to endanger the life that would come under the category of the "grievous hurt". Moreover, the victim was in the hospital for more than 20 days in the case in hand. But the solitary question that has been raised and remained unexplained from the prosecution end is that who reported to the hospital the victim received the injuries from a fall. Even PW11 has reiterated this transferred knowledge about the injury. It appears further that, the accused did not agree to "compromise the matter" when according to PW6, an initiative was taken. A conjoint reading of all these materials emboldens this court to hold that the defence has been successful to probabilize a case that the injury might have been received from a fall and later on, for the subsisting enmity that was triggered to the petitioner.

[33] Having observed thus, this court is of the view, the benefit of such circumstances whereby a probable story of receiving injuries has been introduced in the evidence by the defence, even not by adducing independent witnesses, but from the evidence as led by the prosecution. This court cannot brush aside or just turn its eye away from emergence of two difference versions. Hence, the petitioner is entitled to the benefit of such doubt. In the result, the impugned judgment of conviction is interfered and set aside. Consequentially, the sentence stands quashed.

[34] It has been stated by Mr. Saha, learned counsel appearing for the petitioner that the petitioner is on bail and hence, the sureties stand discharged from their respective obligations.

[35] In the result, this petition stands allowed. Send down the LCRs forthwith.