Sadhan Shil vs The State of Tripura

S. Talapatra, J.—1. This appeal by the convict, hereinafter referred to as the appellant, has been filed under Section 374(2) of the Cr.P.C. against the judgment and order dated 03.03.2015 delivered in case No. S.T. 74 (ST/B) of 2013 by the Sessions Judge, South Tripura, Belonia. By the said judgment dated 03.03.2015, the appellant has been convicted under Sections 342/323/353 and 307 of the I.P.C. As consequence of the said judgment, by the order dated 03.03.2015, the appellant has been sentenced to suffer rigorous imprisonment for 6(six) months, for committing the offence punishable under Section 342 of the I.P.C. The appellant has been further sentenced to suffer rigorous imprisonment for a period of another 6(six) months for commission of the offence punishable under Section 323 of the I.P.C. He has been further sentenced to suffer rigorous imprisonment for 1(one) year for committing the offence punishable under Section 353 of the I.P.C. The appellant has been sentenced to suffer further rigorous imprisonment for 7(seven) years for committing the offence punishable under Section 307 of the I.P.C. with fine of Rs. 3,000/- (Rupees three thousand), in default of payment of fine, to suffer further rigorous imprisonment for 3(three) months. It has been directed that the sentences shall run concurrently.

Based on the ejahar, filed by Sri Laxmi Kanta Nag who was working as the Sub-Postmaster at Anandapur Sub-Post Office on 27.04.2012, P.R. Bari P.S. Case No. 61 of 2012 under Sections 342/353/325/384 and 307 of the IPC was registered and taken up for investigation. The written ejahar as filed by Sri Laxmi Kanta Nag (PW-1) disclosed that on 24.07.2012 at about 1.50 p.m. the appellant entered in his office and closed the doors and windows of that room. When the appellant was asked why he was conducting in that manner, the appellant became excited ''and tried to kill'' him on pouring petrol on his body and setting fire. When he failed to do so, the appellant assaulted the informant with lathi for which the informant received bleeding injuries. Thereafter, the appellant took a bundle of money from the cash and slid those in his pocket. When the informant tried to get up from the floor, the appellant started assaulting him again with lathi and chair. On hearing the cries of the informant, people from the surrounding area gathered in front of the office and tried to open the door. At that time, the informant somehow managed to open the door and came out. He was immediately taken to Niharnagar hospital. After investigation, the final police report was filed chargesheeting the appellant under Sections 342/353/325/384 and 307 of the IPC and since the offence punishable under Section 307 of the IPC is exclusively triable by the Court of Sessions, the police papers were committed to the Court of the Sessions, the court of the Additional Sessions Judge, South Tripura, Belonia as then it was. In due course, the Addl. Secessions Judge framed the charges against the appellant under Sections 342/323/353 and 307 of the I.P.C. separately. But the appellant pleaded his innocence and claimed to be tried in accordance with law.

In order to substantiate the charge as stated, the prosecution adduced as many as 12(twelve) witnesses (PW-1 to PW-12) including the informant, the medical officer who treated him in the hospital and the investigating officer. In addition, the prosecution also introduced as many as 15(fifteen) documentary evidence (Exbts. 1 to 15) including the injury report. To rebut the prosecution evidence, the appellant adduced three witnesses. After recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. when the appellant reiterated his plea of innocence by denying the evidence as led by the prosecution as false. Thereafter, the Sessions Judge (new the Sessions Division had come up during pendency of the trial and the trial was taken up by the Sessions Judge as in the new set up no Addl. Sessions Judge was available) returned the finding of conviction as under:

"On over all appreciation of the prosecution evidences, I find that, on 24.07.2012 at about 01.50 p.m. PW-1 was working in the Anandapur Sub-Post Office as a Sub-Postmaster and at that time accused Sadhan Shil tried to kill PW-1 by pouring petrol on his body and tried to set fire by gas-light. But luckily it was not happened and PW-1 saved and thereafter accused Sadhan Shil assaulted Laxmi Kanta Nag (PW-1) by lathi, as well as wooden chair for which Laxmi Kanta Nag sustained bleeding injuries on his person. Thus, it is found prosecution has been able to prove the charges framed against the accused Sadhan Shil under Sec. 342/323/353 and 307 of IPC beyond reasonable doubt. Accordingly, I convict Sri Sadhan Shil under Sec. 342/323/353 and 307 of the IPC."

Mr. R. Dutta, learned counsel appearing for the appellant has emphatically submitted that there is no evidence that the appellant poured petrol on the person of PW-1 or that he tried to set him on fire with intention to kill. That apart, Mr. Dutta, learned counsel has submitted that the alleged altercation or assault had taken place out of the previous enmity not with intention to deter a public servant from discharging his duty. Mere use of criminal force to a public servant does not constitute the offence punishable under Section 353 of the IPC. Most important ingredient for purpose of constituting the said offence is that the person assaulted with intention of preventing or deterring such public servant from discharging his duty. There is no such evidence to demonstrate that in order to deter a public servant the appellant used the criminal force. Mr. Dutta, learned counsel has further submitted that even the offence punishable under Section 342 of the IPC should fall through for lack of evidence inasmuch as there is no wrongful confinement within the meaning of Section 340 of the IPC. Thereafter, Mr. Dutta, learned counsel has submitted that the prosecution case has not been established by the evidence beyond reasonable doubt and as such, even the conviction under Section 323 of the IPC cannot be sustained.

From the other side, Mr. A. Ghosh, learned P.P. appearing for the State has, in order to refute the submission of Mr. Dutta, learned counsel appearing for the appellant, submitted that a plastic bottle containing petrol was recovered from the place of occurrence by preparing the seizure list which has been admitted in the evidence. PW-1 has categorically stated that the accused being annoyed suddenly entered in his office and then taking out a bottle from his bag, poured petrol on his body and he tried to set fire by gas lighter. To save him, PW-1 ran towards the window. He was beaten up by the appellant by a lathi inside the office which was bolted by the appellant from inside. PW-1 was beaten up whenever he wanted to stand up from the floor. The appellant had also given a fist blow on his forehead by a chair and that chair had been seized. Mr. Ghosh, learned P.P. has further submitted that PW-3, Rakhal Pal was told by PW-1 that the appellant poured petrol on his body and tried to take away money from the cash box. Mr. Ghosh, learned P.P. has emphatically submitted that the wrongful confinement has been proved by the prosecution by the independent witnesses including PW-9. Mr. Ghosh, learned P.P. has further submitted that the appellant disrupted the functioning of the office by deterring the informant in discharging his duties as the Sub-Postmaster and as such, the charge of committing the offence under Section 353 of the IPC has also been established. The offence, as committed by the appellant, punishable under Section 323 of the IPC has been well established leaving no space for minimal doubt. Mr. Ghosh, learned P.P. finally submitted that the impugned judgment does not warrant any interference from this Court.

For purpose of appreciating the rival contentions as projected by the learned counsel for the parties, it would be apposite to revisit the evidence in a purposeful manner.

PW-1 in the trial has submitted that on 24.07.2012 at about 1.50 p.m. the appellant entered in the office and closed the windows and the doors from inside. Thereafter, he took out a plastic bottle of petrol. The appellant poured the petrol on his body and tried to set him on fire by a gas-lighter. When PW-1 tried to escape, he was beaten up by a lathi and as a result, he fell down on the floor of the office. Then the appellant took out a bundle of money from cash book and put those in his pocket. When PW-1 tried to stand up from the floor, he was again assaulted by a lathi. On hearing the cries of the informant, the people from the surrounding area gathered in front of the post office and he somehow opened the door. One Manik Debnath, Samir Das and Amal Das took him to Niharnagar Primary Health Centre. He filed the ejahar having scribed by his son.

In the cross-examination, PW-1 stood by his statements mostly but he admitted in the cross-examination that he did not tell the investigating officer how much money was in the cash box. PW-1 has also admitted that he had sent many allegations in writing to his superior authority against the appellant for his negligence in his duty.

PW-2, Sri Amal Ch. Das whom PW-1 has stated to have taken him to the PHC, gave a different story. He stated in the trial that PW-1 called him out from outside and when he came out from his house he saw bleeding injuries on the forehead of the appellant. At that time, PW-1 stated him that the appellant assaulted him inside the post office. It has indicated that he did not take PW-1 to the PHC rather one Manik Debnath, a teacher and his nephew Samir Das went with him to Niharnagar PHC. He was witness to seizure of two lathis. In the cross-examination, he has stated that the post office was under lock and key after the occurrence.

PW-3, Sri Debabrata Pal was the witness to the seizure of shirt and ganjee (vest) of PW-1 at P.R. Bari Police Station and the seizure of two pieces of lathi, as stated on 24.07.2012. He was also witnessed of seizure of a plastic bottle containing 100 ml petrol. In the cross-examination he has stated that the plastic bottle was empty when it was shown to him in the trial.

PW-4, Sri Nirananda Reang is another seizure witness of the wearing apparels of PW-1. PW-5, Sri Supratim Nag, the son of PW-1. He has given a brief account what he had heard from his father, PW-1. After getting the information, he rushed to the hospital where at the dictation of his father, he wrote the ejahar (Exbt. 8). PW-6, Sri Rakhal Pal, a night guard of the post office, has stated that PW-1 told him that the appellant poured petrol on his body and assaulted him by lathi and chair. He was also witness of seizure of the lathi and chair. He, in the cross-examination, has stated that he did not sign over the label affixed by the investigating officer on the seized chair.

PW-7, Md. Anwar Hossain, is a witness of seizure of the wearing apparels of PW-1 which were produced to the investigating officer by PW-1. PW-8, Sri Manik Ch. Debnath did not state anything of material importance but he has stated that he saw PW-1 with injuries on his forehead and his shirts with blood stain on 24.07.2012 at about 2.30 p.m. He took Laxmi Kanta Nag (PW-1) to Niharnagar PHC by his bike. At the relevant point of time, as stated by PW-8, there were 40-50 persons near the post office. PW-9, Sri Samir Das @ Tutan Das has confirmed that he had requested PW-8 to take PW-1 to Niharnagar PHC by his bike. He later on came to know that the appellant assaulted PW-1 inside the Sub-Post Office. But he has denied that he had shifted PW-1 to Niharnagar PHC.

PW-10, Sri Sumal Chakraborty was declared hostile as he did not support the version recorded by the investigating officer during investigation. PW-11, Sri Tapan Das is the investigation officer. He has narrated how he conducted the investigation after registration of the case. He arrested the appellant. He has confirmed the seizure as indicated by the other witnesses.

In the cross-examination, he has stated that the blood stained, wearing apparels were seized on 25.07.2012 in Niharnagar PHC. He has candidly admitted that he did not get the liquid inside the bottle as seized examined by the forensic expert. The investigating officer admitted in the trial that the bottle was empty when it was shown to him in the trial.

PW-12, the medical officer who treated PW-1 has categorically stated that on 25.07.2012, Laxmikanta Nag (PW-1) got admission in Niharnagar PHC. Even though in the injury report, the time of admission is not recorded, but on examination, the nature of injuries as recorded has been extracted in the said report. Injuries according to him as found in PW-1 are as under:

(i) swelling, 2.5 c.m. circular on left side of his face, 2.5 c.m. medial 3 c.m. below nose;

(ii) incised and lacerated wound 2.5 c.m. x 3 c.m., in the forehead, 2.5 c.m. (anterior) nose ant 6 c.m. away from right ear and

(iii) lacerated would 2 c.m. x 2 c.m. in right cheek, 2 c.m. from nose and 4 c.m. from mastoid medially.

In the cross-examination, he has admitted that in the injury report he has not mentioned the age of injuries but according to him those were fresh injuries. He has further submitted that he got the smell of kerosene from the body of PW-1 and that observation has been recorded in his injury report (Exbt. 15).

It is to be noted that the prosecution did not take any initiative to get it explained why PW-12 has stated that PW-1 was admitted in the hospital on 25.07.2012 whereas PW-1, PW-5, PW-8 and PW-9 have categorically stated that PW-1 was sent to PHC and admitted on 24.07.2012, the day of occurrence. In all probability, this may be a slip while preparing the injury report. The prosecution should have taken explanation from PW-12 in this regard. Three witnesses were examined for the defence. DW-1, Sri Sridam Chandra Debnath, a Nigh Guard of Anandapur Post Office, has stated that he did not have any knowledge how PW-1 sustained injuries on his person but he has confirmed that PW-1 misbehaved with the appellant in connection with the official work. DW-2, Sri Sankar Chakraborty has stated that one day in their presence, the appellant was abused by the appellant for wrong delivery of one VPP article. DW-3, Sri Kantilal Das has stated that PW-1 demanded a sum of Rs. 500/- for encashment of a cheque and he paid a sum of Rs. 200/-. He has further stated that he saw PW-1 misbehaving with the appellant.

On appreciation of all those materials together and assessing their probative value, it has surfaced that the prosecution has failed to establish that the appellant had intention to murder PW-1. Even PW-1 did not identify the small bottle which was used for carrying petrol or kerosene. There is no forensic report as to whether there was any inflammable material in the bottle or on the wearing apparels of PW-1 and as such, the statement of PW-1 cannot be believed when such statement is appreciated in the background of previous enmity.

Whether there is any material to substantiate the commission of offence punishable under Section 353 of the IPC. The use of criminal force according to this Court has been well established by the prosecution but the prosecution has failed to prove that the criminal force was used to deter PW-1 for discharging his duty as the public servant. Even taking out the cash from the cash-box by assaulting him could not be proved as there was no verification of the cash with the records maintained in the post office in order to show that the appellant took out the cash for disrupting or deterring PW-1 for discharging his duties as the public servant. Therefore, this Court is inclined to give benefit of doubt to the appellant in this regard. However, the date in the injury report is an act of human omission and for this the content as to the injuries as received by PW-1 cannot be disbelieved by this Court and as such, we have no hesitation to hold that the prosecution has established commission of offence punishable under Section 323 of the IPC by causing hurt to the hilt and as such, this Court is not inclined to interfere with the finding of conviction under Section 323 of the IPC. Similarly, we are convinced from appreciation of the evidence that there was wrongful confinement of PW-1 by the appellant and as such, we decline to interfere with the finding of conviction under Section 342 of the IPC. Thus, the appellant is acquitted from the charge under Sections 307 and 353 of the IPC but his conviction under Sections 323 and 342 of the IPC is maintained. The appellant shall suffer rigorous imprisonment as awarded by the trial court for committing the offence under Sections 323 and 342 of the IPC.

On considering the proportionality and the impact of the sentence that may ensue, we observe that since the conviction is not for committing an offence relatable to moral turpitude, the apprehension that has been expressed that the service of the appellant will be affected if the conviction is maintained, does not have any foundation and it is observed that the conviction shall not be used as instrument for affecting the service of the appellant. However, the authority concerned will be at liberty to deal with absence or period of suspension, if any, in accordance with law.

Having observed thus, this appeal is partly allowed.

Send down the LCRs forthwith.