Debabrata Dey @ Kartik vs State Of Tripura

[1] Heard Mr. S. B. Deb, learned counsel appearing for the accused-appellant. Also heard Mr. S. Ghosh, learned Addl. P.P. appearing for the respondent-State.

[2] The instant appeal is directed against the judgment and order of conviction & sentence dated 01.09.2016 passed by the learned Additional Sessions Judge, Court No. 5, Agartala, West Tripura, in connection with case No. S.T. (T/2) 43 of 2014, whereby and whereunder, the appellant was convicted and sentenced to undergo Rigorous Imprisonment for 6(six) months and also to pay a fine of Rs. 500/- in default to suffer Simple Imprisonment for 1(one) month for committing offence punishable under Section-451 of IPC and further sentenced him to undergo Rigorous Imprisonment for 2(two) years and also to pay a fine of Rs. 2,000/- in default to suffer simple Imprisonment for 6(six) months under Section-325 of IPC. The convict-appellant was also sentenced to undergo Rigorous Imprisonment for 4(four) years and also to pay a fine of Rs. 3,000/- with default stipulation for committing the offence punishable under Section-354B of IPC. It was ordered that all the sentences shall run concurrently.

[3] The prosecution case, in brief, is that, the complainant, namely, Subir Chakraborty, lodged a complaint with the officer in charge of Jirania P.S. on 24.06.2013 stating inter alia that the victim, who is the sister-in-law of the complainant and has been residing at Jirania, Chitta Ranjan Palli, is a widow. On 23.06.2013 at about 11.30 pm, the accused Kartik Dey entered into the dwelling house of the victim with an ill motive and started scuffling with her. When the victim tried to resist, the accused inflicted blows on the head, forehead, face with betel nut cutter and also throttled her by wrapping a cloth around her neck. Due to such assault, the victim sustained grievous injuries and was shifted to jirania hospital and thereafter to GBP Hospital, Agartala.

[4] Based on the said complaint, the officer-in-charge, Jirania P.S. registered one case being Jirania P.S. Case No. 61 of 2013 under Sections 452,326 and 34 of IPC against the present accused-appellant. After registration, the case was endorsed to Sub-Inspector, Md. Golam Mostafa, for investigation.

[5] After completion of the investigation and being satisfied prima facie, the investigating officer filed the charge sheet under Sections 452/326/354B of IPC against the appellant and sent the same to the court of learned Chief Judicial Magistrate, West Tripura, Agartala and learned Chief Judicial Magistrate took cognizance of the offence and framed charges against the appellant under Sections-452/326/354B of IPC. The learned Judicial Magistrate, 1st Class, Court No. 5, Agartala, West Tripura after examination of two witnesses found the elements of offence under Sections-307 and 376/511 of IPC and committed the case to the Court of learned Sessions Judge, West Tripura, Agartala. As the offences were exclusively triable by the learned Sessions Judge, West Tripura, Agartala, learned Sessions Judge on receipt of the case record, transferred the same to the learned Addl. Sessions Judge, Court No. 5, West Tripura, Agartala and the same was registered being case No. ST (T/2)43 of 2014 for conducting the trial. Accordingly, the learned Addl. Sessions Judge framed charges under Sections-307/326/325/452/354B of IPC and the contents of the charge was read over and explained to the accused in Bengali to which he pleaded not guilty and claimed to be tried.

[6] In course of trial and to substantiate the charge, prosecution side examined as many as 7(seven) witnesses and also introduced 5(five) documents which includes seizure list, injury report, hand-sketch map along with index.

[7] After examination of witnesses, the appellant was examined under Section-313 of Cr. P.C. and after hearing the arguments of both sides, the learned Addl. Sessions Judge, West Tripura, Agartala delivered its judgment dated 01.09.2016, thereby convicting the present appellant in the premises as aforestated. Being aggrieved by the said judgment and order of conviction dated 01.09.2016, the appellant has preferred the instant appeal.

[8] To appreciate the evidence and the sustainability of the judgment passed by the learned trial court, let this Court make a short survey to the evidence and materials on record.

[9] PW-1, Smt. Chanda Chakraborty, is the victim lady aged about 50 years. She has stated that on 23.06.2013 at night about 11.00 pm when she was entered to her dwelling house from the toilet located outside of the dwelling house, accused Debabrata @ Kartik Dey entered into her house and being asked why he entered into her room, he replied that since long he wanted to enjoy her. Thereafter, accused pulled out her dress (Saree) and scuffled with her and her fell down on the ground. At that time it was raining with heavy shower. The said witness further stated that the accused wrapped her neck with her saree and started to assault with 'sarta' (an instrument for cutting betel nut) taking the same from the house, causing bleeding injuries on forehead by the upper part of the head, back side, nose, lip and on the neck. Due to such injuries she became senseless and she regained her sense at about 4/4.30am. She further stated that at the time of occurrence she was alone. She identified the accused by electric light of her dwelling house and after regaining her sense she went to her adjacent house of Benu Das and called him and his wife.

[10] When she narrated the incident to them, they called other neighbouring persons and thereafter she was taken to her house when she again became senseless. She was shifted to the hospital and thereafter to GBP Hospital. She was discharged from the hospital on 30.06.2013. After discharge from the hospital she continued her treatment under Dr. Pradip Sarkar at Agartala. She further stated that when she told the accused appellant that she would disclose the fact of sexual assault upon her, then he started to assault her with 'SARTA'. In course of investigation, the police seized the said sarta from her house which was recognized and marked as Exbt.MO.1. She stated that her brothe-in- law, Shri Subir Chakraborty, lodged the FIR. She identified the accused on the dock.

[11] In her cross-examination, she stated that she regained her sense at GBP hospital at about 6.30 am. Her brother-in-law, who lodged the FIR, did not come to her house before shifting her to the hospital. She denied that on 23.06.2013 her son was in her house. She denied the suggestion that the injuries were not caused due to hit by 'sarta'. Nothing material could come out during her cross examination which could shake the evidence.

[12] PW-2, Gopal Chakraborty, aged about 67 years stated in his evidence that about 2 years ago in the early morning at about 6/6.30am, on a rainy day he heard hue and cry on the road and he came to know that Chanda, the victim herein, was assaulted. The people informed the police, thereafter police came and she was shifted to the hospital with bleeding injuries on her face and neck. He came to know from Chanda on the following day that accused kartik assaulted her. He identified the accused in the dock. He also identified the 'sarta'. Police seized the 'sarta' which was marked as Exbt. 1. He further stated that he saw blood stain on the said 'sarta'. The said witness identified the sarta (Exbt. MO.1).

[13] He denied the suggestion in his cross-examination that the police did not seize Exbt. MO.1 and there was no electricity in their area on the said day and she was not assaulted by kartik.

[14] PW-3, Smt. Manju Saha, has stated in her evidence that one day at about two years ago in the morning when she was plucking flowers for worship she heard hue and cry and on hearing the same she went to the house of Chanda Chakraborty and saw many people were there. She found that Chanda Chakraborty lying on the varanda on the dwelling house with bleeding injuries on her face and neck. On seeing the blood stain she became senseless. Thereafter police visited to the house of the victim and brought one sarta and one cloth with blood stain from the house of Chanda Chakraborty, police seized the said sarta. She is a witness to the seizure list and she identified her signature (Exbt.1/1). She identified the accused in the dock and the seized sarta (Exbt. MO.1). The said witness volunteered that she was called by the police when she was on the road nearby the house of Chanda Chakraborty and she put her signature in the seizure list in-front of the gate of the house of Chanda Chakraborty. The witness further volunteered that the cloth, which was seized, was the wearing saree of the victim when she saw her in the injured condition.

[15] PW-4, Sri Subir Chakraborty, is the brother in law of Chanda Chakraborty, who lodged the FIR. He has stated that he received a telephone call from the local people of the victim and requested him to go to the house of his sister-in-law, Chanda Chakraborty. Over telephone he also came to know that the victim sustained injuries.

Accordingly, he along with his wife started for going to the house of Chanda Chakraborty and on the way, he received another telephone call and came to know that his sister in law was shifted to the Jirania Hospital. He directly went to Jirania Hospital to see his sister in law. He found that his sister in law with bleeding injuries on her face and neck and later on she was referred to GBP hospital. He along with others took her in the hospital. On regaining her sense, though not fully, being asked as to who caused her injuries, she told that at night about 11.00pm when she came to her dwelling house from outside toilet, accused Kartik suddenly entered into her room and pulled her saree, when she tried to resist the accused, he caused injuries with sarta upon her. After getting all these information, the said witness submitted a written complaint at Jiraina P.S. narrating the incident. This written complaint submitted by him bears his signature and on identifying the FIR, marked as Exbt.2. He identified the accused in the dock. In his cross-examination, the defence failed to shake his evidence and only has given some suggestions.

[16] PW-5, Smt. Sukla Das, aged about 24 years, has stated in her evidence that after hearing the hue and cry she went to the house of the victim and found her lying on the varanda with bleeding injuries on her head, face, neck and on her apparels. Police came to the place of occurrence and subsequently she came to know from the discussion of the local people that accused had caused injuries. Being asked by the Court she stated that she went to the place of occurrence i.e. the house of Chanda Chakraborty but at that time the victim was not in a position to speak. In her cross-examination the witness volunteered that the victim was shifted to the hospital along with blood stained wearing apparels which she had seen on her body.

[17] PW-6, Dr. Shyam Sundar Saha, who treated the victim as medical officer in surgery department, Unit No. 1 of the GBP Hospital. In his cross examination he stated that the victim was admitted to the hospital through emergency block at about 6.50am with a complaint of Trauma head, face and neck following physical assault on 23.06.2013. The injury report was marked as Exbt.3. On examination, the doctor found the following injuries on the body of the patient:

(I) Lacerated wound over forehead in 3 numbers, 2 injuries measuring 3cm each long and another 7cm long.

(II) Lacerated wound over the upper live 5cm long.

(III) Lacerated wound over the left cheek involving wrote of nose measuring 6cm long.

(IV) Lacerated wound in the anterior neck measuring 10cm long.

(V) Lacerated would in the parietal area measuring 3cm long.

(VI) Abrasion in the left parietal area measuring 2X3 cm.

(VII) Subconjunctive hemorrhage as per report ophthalmologist on 24.06.2013.

(VIII)As per extra report they was fractured on the left side nosal bone.

(IX) Ecchomoses on the left shoulder. According to extra report the left was normal.

[18] PW-7, SI Gulam Mustafa, aged about 53 years has stated in his evidence that after receipt of information he went to the place of occurrence, seized wearing apparels and the sarta (MO.1). He recorded the statement of the available witnesses under Section-161 Cr. P.C. He denied the suggestion put forward by the defence that the victim had sustained injuries by road traffic accident. The S.I further denied the suggestion that Exbt. MO.1 was not seized from the place of occurrence. He stated that when he visited Jirania hospital to record the statement of the victim on 24.06.2013 he could not found her in the hospital as she was already shifted to AGMC and GBP Hospital. On 30.06.2013 he again tried to examine the victim at AGMC/GBP Hospital and at that time she was discharged from the hospital. He went to the house of the informant on 30.06.2013 and examined the victim as well as the complainant. He prepared the hand sketch map and index and on identification it was marked as Exbt. 5 series.

[19] In course of arguments before this Court, learned counsel appearing for the appellant submitted that Exbt. MO.1 betel nut cutter as double edged sharp and blunt but the victim did not state that by which side of the MO.1 she was assaulted. He further contended that PW-6 in his cross examination admitted that such type of injuries could be caused by road traffic accident. As such, it could not be the injuries caused by a sarta (MO.1). Learned Sessions Judge had considered this aspect and had observed thus:

"In the above respect, from the evidence of the victim I find that the accused assaulted the victim with a „Sarta‟ (betel nut cutter) taking the same from her house causing bleeding injury on her forehead, upper part of the head, her back side, nose, lip and on the neck and due to such injury she became senseless and she regained her sense at about 4/4.30am. From the seizure list (Exbt.1/2) it is found that IO seized a sarta (betel nut cutter) made of iron of 10 inch length. The nature of injuries shows that the assailant struck her at random on her face. It is not the evidence of the victim that the accused assaulted her by the sharp edge of the cutter of betel nut. Normally the sharp edge of the cutter of betel nut remains closed when it is not in use. The defence plea is that the victim sustained such injury in a road traffic accident which is a possible reason as deposed by PW-6. I find no force in the submission of the defence counsel. The possibility of alternative cause of injury opined by the medical officer has no value when the ocular evidence of the injured is firm and supported by the medical evidence."

[20] PW-4, Subir Chakraborty, brother in law of the victim has categorically stated that on receipt of telephone call from the local people he rushed to the house of the victim where he was informed that the victim was shifted to Jirania Hospital. He went to the hospital where he found that his sister-in-law had suffered with bleeding injuries on her face and neck and she was shifted to GBP Hospital. The sarta (Exbt.MO.1) which was seized by the police at the place of occurrence was identified by the witness.

[21] After appreciating the materials brought on record, and particularly the statements made by the victim, in my opinion, it is aptly clear that the victim has suffered minor injuries, but the charge under Section 354B of IPC has not been established beyond reasonable doubt. None of the witnesses has supported the version of the victim that she told them that accused had tried to molest her and pulled out her dress. As such, the conviction and sentence awarded against the accused appellant needs to be modified.

[22] Accordingly, this Court holds that substantial justice would be rendered if the appellant is sentenced to suffer RI for 2 years for committing offence under Section-325 of IPC and sentence to suffer RI for 4(four) years under Section 354B of IPC is hereby set aside and quashed. However, other sentences shall remain unaltered and run concurrently. In the result, the instant appeal is partly allowed. The period of detention during the stage of trial and period of imprisonment, shall be included with the period he already has undergone and is hereby set off.

[23] With the modification of above sentence in the above terms, the instant appeal stands partly allowed and thus, disposed of. Pending application(s), if any, also stands disposed of.