HIGH COURT OF TRIPURA
AGARTALA
Crl. A. No.19 of 2023
1. Sri Asim Das
S/O Late Matilal Das.
2. Smt. Sujata Das
W/O Shri Asim Das
Both are residents of Nandannagar,
S.D.O. Chowmuhani, Debnathpara,
P.S - New Capital Complex,
District - West Tripura.
------ Convict-Appellants
Versus
The State of Tripura
(Represented by the Secretary),
Department of Home,
Government of Tripura,
Agartala.
------ Respondent
For Appellant(s) : Mr. S. Lodh, Adv,
Mr. S. Majumder, Adv.
For Respondent(s) : Mr. Raju Datta, P.P.
Date of hearing : 29.11.2024
Date of delivery of
Judgment & Order : 30.11.2024
Whether fit for
reporting : YES
. JUSTICE BISWAJIT PALIT
HON’BLE MR
Judgment & Order
This appeal under Section 374 of Cr.P.C. is filed
challenging the judgment and order of conviction and sentence
dated 18.08.2023 delivered by Learned Additional Sessions
Judge (Court No.2), West Tripura, Agartala in connection with
case No.S.T.(T-I) No.51 of 2016. By the said judgment and order
of conviction and sentence, Learned Additional Sessions Judge
has found the appellant namely Shri Asim Das and Smt. Sujata
Page 2 of 24
Das as guilty for commission of offence punishable under Section
326 read with Section 34 of IPC and sentenced them to suffer RI
for 2(two) years each and both the convicts were also sentenced
to pay fine of Rs.5000/- each for commission of the said offence
punishable under Section 326 of IPC i.d. to suffer further RI for
6(six) months each and it was further ordered that in the event
of realization of fine, the same shall be paid to the victim Amal
Shome Bhowmik i.e. PW-5.
2. Heard Learned Counsel Mr. S. Lodh along with Learned
Counsel Mr. S. Majumder appearing for the appellants and also
heard Learned P.P., Mr. Raju Datta representing the State-
respondent.
3. In course of hearing of argument, Learned Counsel for
the appellant first of all drawn the attention of the Court and
submitted that the Learned Trial Court initially framed charge
against the convicts-appellants under Section 323/326/307 of
IPC read with Section 34 of IPC but on conclusion of trial,
Learned Court below convicted both the appellants under Section
326 of IPC read with Section 34 of IPC and accordingly convicted
them. But considering the materials on record, according to
Learned Counsel for the appellants, there was no scope to found
the appellant to be guilty for the offence charged punishable
under Section 326 of IPC.
Learned Counsel further submitted that on the alleged
day, another case was filed by one of the convict Sujata Das to
O/C, NCC P.S. and on the basis of that case, East Agartala
Page 3 of 24
Women PS case No.30/14 under Section 448/354(b) of IPC was
registered and as per law both the cases were supposed to be try
together by the Learned Court below but the Learned Court
without conducting joint trial only conducted the trial of the case
laid by the informant Shyamal Shome Bhowmik which was not
permissible in the eye of law.
Learned Counsel further submitted that prosecution by
the oral evidence on record failed to satisfy the ingredients of
offence as laid down in Section 320 of IPC but the Learned Court
below without considering the ingredients of Section 320 of IPC
found the appellants guilty under Section 326 of IPC for which
the interference of the Court is required.
Learned Counsel further submitted that if both the cases
could be tried together by the same Court in that case the actual
picture could come out as to how the victims sustained injuries in
the case.
Learned Counsel also submitted that the medical
evidence on record are also contradictory to each other and does
not satisfy the ingredients of offence punishable under Section
326 of IPC. So, the judgment of the Learned Court below suffers
from infirmities.
He further submitted that although according to
prosecution, two persons were sustained injuries by the act of
the appellants but here in the case, the prosecution only
produced and proved the injury report of the victim Amal Shome
Bhowmik but failed to prove injury report of another alleged
Page 4 of 24
victim Shikha Deb Roy i.e. the sister of alleged Amal Shom
Bhowmik. So, the allegation of the prosecution was nothing but a
false and concocted story and on the basis of materials on
record, there was no scope to presume the appellants to be
guilty for the alleged offence punishable under Section 326 of
IPC and as such, Learned Counsel for the appellants urged for
allowing this appeal by setting aside the judgment of the Learned
Court below.
Alternatively, Learned Counsel for the appellants further
submitted that, if for any reason, this Court finds the appellant
to be guilty for any other offence, in that case, in view of the
principle of law laid down by this Court in connection with Crl.
Rev. P. No.31 of 2011 dated 18.07.2014 urged for releasing both
the convicts on probation in view of the provisions of Probation
of offenders Act and Learned Counsel in support of his contention
referred few citations which would be discussed later on.
4. On the other hand, Learned P.P. representing the State
respondent countering the submissions made by Learned
Counsel for the appellants submitted that Learned Court below
after appreciating the evidence on record rightly and reasonably
found both the appellants to be guilty and convicted them
accordingly and there is no scope to presume the appellants to
be innocent with the alleged charge and relying upon the
evidence of PW-1, Sikha Deb Roy (victim), PW-2, Shyamal
Shome Bhowmik (informant) and PW-5, Amal Shome Bhowmik
(victim), Learned P.P. submitted that there is no scope on the
Page 5 of 24
part of this Court to interfere with the judgment delivered by
Learned Court below and urged for dismissal of this appeal
upholding the judgment and order of conviction delivered by
Learned Court below.
5. I have heard arguments of both the sides at length and
also gone through the judgment delivered by Learned Trial Court
below. After hearing both the sides, here in this case, this Court
is to decide as to whether the judgment and order of conviction
and sentence delivered by Learned Trial Court below under
Section 326 of IPC read with Section 34 of IPC is sustainable or
not in the eye of law.
As already stated, Learned Trial Court at the time of
framing of charge framed charge under Section 323/326/307 of
IPC read with Section 34 of IPC against both the appellants but
on conclusion of trial, found the appellants guilty for the offence
charged under Section 326 of IPC read with Section 34 of IPC
and accordingly convicted them.
6. This case was registered on the basis of an FIR laid by
one Shyamal Shome Bhowmik i.e. the brother of the victims to
O/C, NCC P.S. alleging inter alia that on 06.05.2014 in the
morning at about 7 am, his younger brother Amal Shome
Bhowmik at SDO Chomuhani went to the residence of his elder
sister, Sikha Deb Roy and on arrival therein, he could know that
his elder sister went to her another residence situated to the
northern side and thereafter at about 7:30 am, the victim Amal
Shome Bhowmik went to that house that time the accused Asim
Page 6 of 24
Das, Sujata Das and Rakhal Sarkar armed with deadly weapons
caused hurt to his brother and elder sister. His brother sustained
severe injury to his head and abdomen and his sister also
sustained bleading injury. The inhabitants of that area brought
them to GBP Hospital and considering the seriousness of his
brother, he was admitted in the Hospital immediately and as his
condition was deteriorating so he was shifted to ILS Hospital. It
was further submitted that his sister Sikha Deb Roy also
admitted in GBP Hospital. It was further asserted that the
accused Asim Das and Sujata Das have been forcefully occupied
another residence of his elder sister to the northern side of her
residence. Hence the FIR was laid.
7. Accordingly, on the basis of the FIR on 06.05.2014, O/C,
Agartala N.C.C P.S. registered the case and the case was
endored to the I/O and on completion of investigation, the I/O
laid charge-sheet against the both the appellants and on the
basis of another FIR laid by one of the appellant Sujata Das that
the victim Amal Shome Bhowmik outraged her modesty so
another case was lodged to O/C, N.C.C. P.S. and as the offence
was relating to offence against women so the matter was
referred to O/C, East Agartala Women P.S. Accordingly, East
Agartala Women P.S. case No.30/14 under Section 448/354(b)
of IPC was registered.
8. To substantiate the charge, prosecution in this case has
adduced in total 13 nos. of witnesses and prosecution also relied
Page 7 of 24
upon some documents which were marked as Exhibits in this
case.
The defence case was that of total denial of the
allegation of the prosecution and as such, the appellants in
course of their examination under Section 313 of Cr.P.C. were
pleaded as innocent and they desired to adduce witness in
support of their defence. Accordingly, both the appellants were
examined and cross-examined as DW-1 and DW-2.
Since both the appellants were convicted under Section
326 of IPC and Learned Counsel for the appellant in course of
hearing of argument challenged the maintainability of conviction
under Section 326 of IPC against the appellants. So, it would be
convenient if the synopsis of the evidence on record is narrated
herein below.
9. PW-1 is the one of the victim, Sikha Deb Roy. She
deposed that on 06.05.2014 accused Asim Das, Sujata Das and
Rakhal Sarkar entered into her land at S.D.O. Chowmuhani
under N.C.C. P.S. and while they tried to raise bamboo fencing
encroaching her jote land that time she herself and brother Amal
Shome Bhowmik went there and when they raised protest, they
ot
attacked her and her brother armed with axe and ‘b i dao’. She
was assaulted by Asim Das by fist and blows and Sujata Das
struck
several blows with ‘boti dao’. As a result of which, she
sustained several bleeding injuries on her face and other parts of
the body. She was admitted in the GBP Hospital and took
treatment therein. The accused also assaulted her brother Amal
Page 8 of 24
Shome Bhowmik. Asim Das struck several blows over different
parts of the body of her brother and Sujata Das also struck
several blows with ‘boti dao’ to her brother for which he received
severe bleeding injury on his person. He was admitted in ILS
Hospital and undergone treatment therein. Police on 10.05.2014
seized an axe from an abandoned place belongs to others. She
identified her signature on the seizure list which was marked as
Exbt.-1 and identified the seized axe which was marked as Exbt.-
M.O.1 and identified both the accused persons.
During cross-examination, she stated that Asim Das and
Sujata Das are husband and wife by relation. She further stated
that the house of Amal Shome Bhowmik and Shyamal Shome
Bhowmik are situated at a distance about half kilometer from her
house. She could not say from where the axe was recovered by
‘ ’
police. Further stated that her brother received severe cut injury
over his head and other parts with ‘boti dao’ and axe and Sujata
Das strike blow with a ‘boti dao’ to her brother Amal Shome
Bhowmik.
10. PW-2, Shyamal Shome Bhowmik is the informant. He
deposed that on 06.05.2014 in the morning he was at his
residence. That day, one Apu Bhattacharjee reported him over
phone that accused Asim Das and wife Sujata Das entered into
the land of his sister Sikha Deb Roy tried to raise bamboo
fencing and encroaching her land and there was every
apprehension of hot altercation and untoward incident and
accordingly he rushed to the spot and found accused Asim and
Page 9 of 24
his wife Sujata already attacked his brother Amal Shome
Bhowmik and also noticed accused Ashim Das strike out
repeated blows with axe and Sujata Das to assault his brother
dent, he raised alarm. Upon
with a ‘boti dao’. On seeing the inci
hearing his shouting, the accused persons Asim and Sujata Das
fled away through the brick soiling road approaching towards the
north of the said house along with the axe and the boti dao and
his sister, Sikha Deb Roy also received injury. Thereafter, both of
them were taken to hospital and his brother was shifted to ILS
Hospital. He laid the complaint to O/C, GBP outpost which was
prepared by him in his own handwriting and identified the ejahar
which was marked as Exbt.-2 and his signature was marked as
Exbt.-2/1. For more than a month, his brother had undergone
treatment at ILS Hospital.
During cross-examination, he stated that his brother had
some dispute with accused Asim Das. Also stated that he heard
that there was a negotiation between the accused and his
brother-in-law to sale the land on which the incident occurred
with the accused person. He further admitted that Sujata Das
lodged a case against his brother Amal Shome Bhowmik over the
said incident which take place on 06.05.2014 in the morning.
Sujata Das was also arrested by police.
11. PW-3, Subrata Sarkar deposed that at about 3-4 years
back one day in the morning Shyamal while going to his sister’s
house at Noagaon informed them that a dispute was going on
between his sister Sikha Deb Roy and his brother Amal Shome
Page 10 of 24
Bhowmik with accused Asim and Sujata over a land dispute. That
time, he was returning back to home and thereafter he rang to
said Shyamal Shome Bhowmik who reported that his brother
Amal Shome Bhowmik received injury and he was brought to
GBP Hospital. He thereafter rushed to GBP Hospital and found
Amal Shome Bhowmik in unconcious stage and the wounds over
his head and belly were dressed and primary medical aid was
given. Later on, he talked with Shyamal Shome Bhowmik at GBP
Hospital and could know that over the land dispute, Amal was
severely beaten by the accused Asim Das and his wife Sujata
Das and as a result of their physical assault, Amal received
severe cut injury over his head and belly.
12. PW-4, Dr. Damodar Chatterjee is Medical Officer. He
deposed that on 06.05.2014, he was posted as Assistant
Professor, Department of Surgery MS2 Unit 2 AGMC and GBP
Hospital. On that day, Amal Shome Bhowmik was admitted in
MS2 through emergency block of the GBP Hospital with a history
of head injury and polytrauma followed by physical assault. In
course of examination, he found: (1) incised wound over the
right upper abdomen measuring about 10 cm x 1 cm x 1 cm and
(2) incised wound 2 cm x 1 cm x 1 cm over left parietal region.
The injuries were simple and fresh in age and they were caused
by sharp cutting weapon. During his examination, he stated that
the patient was unconcious and as per C.T. scan report, there
was sub arachnoid subdural heamorrhage and it was considered
to be a grievous one. He referred the patient to ILS Hospital,
Page 11 of 24
Agartala for further treatment on 06.05.2014. He issued the
preliminary report which was prepared by him and identified his
report which was marked as Exbt.-3 and his signature was
marked as Exbt.-3/1 series. Further stated that the internal
haemorrhage which was detected after C.T. scan of brain may be
caused by a sharp edge of an axe as well as by the blunt end of
‘ ’
an axe .
‘ ’
During cross-examination, he stated that he prepared
the injury report of Amal Shome Bhowmik as per hospital bed
head ticket on 28.06.2014.
13. PW-5, Amal Shome Bhowmik is another victim. He
deposed that on 06.05.2014 in the morning, his sister informed
him over phone that accused Asim and Sujata accompanied by
few labourers entered into the land of his brother-in-law, tried to
encroach the land by raising boundary fencing over the land of
his sister and accordingly, he rushed therein and found the
accused persons with the help of some labourers were raising
boundary fencing. He requested Asim Das not to raise any
fencing as this is a land dispute and a case has already been
lodged with NCC P.S. He failed to make them understand.
Suddenly, Asim Das became furious and attacked him from back
and struck out several blows with an axe on his head for which
he received severe bleeding injury and fallen on the ground.
Accused Sujata Das attacked with a ‘boti dao’ from front side and
struck out repeated blows. He tried to resist her but failed to
save. He received severe cut injury on his belly, right elbow and
Page 12 of 24
right palm. He caught hold of his belly otherwise intestine would
have come out. Later on, he went to GBP Hospital riding on the
motor bike of one Banty Chakraborty and attended emergency.
He lost sense and he regained sense after one and half months.
He undergone treatment at GBP Hospital and from there, he was
taken to ILS Hospital and at the time of accident, his sister was
present with him and when his sister tried to save him. That
time, she was also beaten by the accused persons.
During cross-examination, he stated that at the time of
accident he did not see his brother Shyamal Shome Bhowmik
either on the spot or any other place adjacent to the spot. He
further submitted that he saw accused Asim Das only on the
date of the accident but prior to the accident, he was not known
to him.
14. PW-6, Manik Lal Deb, SI of police. He deposed that on
06.05.2014 , he was posted as Sub-Inspector of police, N.C.C.
P.S. and after receipt of written ejahar of Shyamal Shome
Bhowmik, he registered N.C.C. P.S. case No.43 of 2014 under
Section 326/34 of IPC. He identified his endorsement with
signature on the ejahar which was marked as Exbt.-2/2. He filed
up the printed FIR form in his own hand writing which beared his
signature and identified the printed FIR form which was marked
as Exbt.-4 and his signature which was marked as Exbt.-4/1.
After that, he handed over the case docket to O/C, Inspector
Subrata Chakraborty who endorsed this case for investigation to
SI Ratan Chakraborty.
Page 13 of 24
15. PW-7, Laxmi Debnath deposed that about 2 years and 6
months back on a day in the morning, while she was busy with
her household works, that time, she noticed Sikha Deb Roy and
Sujata Das engaged in quarrel over vacant land. Later on, she
could know that Amal Shome Bhowmik sustained injury on his
person but she could not say as to how he sustained injury. She
was declared hostile by the prosecution and her portion of
statement was marked as Exbt.-5 subject to proof by IO.
16. PW-8 deposed that on 10.04.2014, she went to collect
firewoods from an adjacent area where she noticed an axe lying
there in a bush in an abandoned place then she informed the
matter to her husband. Her husband reported the matter to
police and police came and seized the axe fitted with wood
marked under a seizure list in presence of her and her husband.
She identified her signature on the seizure list which was marked
as Exbt.-1/1 but she could not identify the axe. She was also
declared hostile by the prosecution and her portion of statement
was marked as Exbt.-6 subject to proof by IO.
17. PW-9, Tarani Kumar Debnath deposed that on
10.05.2014 in the morning, his wife went to an adjacent vacant
land for collection of firewood where she noticed an axe was
lying there in the bush over the abandoned place. She informed
the matter and knowing the same, he rushed to the spot and
also found an axe lying there in the bush which was later on
seized by police. He identified his signature on the seizure list
which was marked as Exbt.-1/2 and identified Exbt.-MO1. He
Page 14 of 24
was declared hostile by the prosecution and his portion of
statement was marked as Exbt.-7 subject to proof by IO.
18. PW-10, Dipen Shil deposed that on the alleged day he
was present in his shop of carrying articles at Nandannagar in
the morning probably at about 6:30 am and at about 7:30 am he
received one telephonic information from one Shyamal Shome
Bhowmik that at SDO Chowmuhani his brother Amal Shome
Bhowmik was lying on the earth with injured condition and he
requested him to go there and accordingly, he arrived to the PO.
On arrival to the spot, save and except blood stained earth he
did not find any other thing. By this time, the victim was shifted
to hospital. He was also declared hostile by the prosecution and
his portion of statement was marked as Exbt.-8 subject to proof
by IO.
During cross-examination, he stated that he has good
relation with Amal Shome Bhowmik and Shyamal Shome
Bhowmik.
19. PW-11, Ratan Chakraborty is IO who laid charge-sheet
against the accused. He identified the hand sketch map of the PO
marked as Exbt.-9 as a whole and identified the index marked as
Exbt.-10 as a whole and identified the seizure list in respect of
seizure of axe marked Exbt.-1/3 and identified another seizure
‘ ’
list dated 13.05.2014 in respect of seizure of collection of blood
sample of Amal Shome Bhowmik and identified the same which
was marked as Exbt.-11. He confirmed Exbt.-6, 7 and 8.
Page 15 of 24
During cross-examination, he stated that during the part
of his investigation it did not reveal to him that whether Sujata
Das had laid any case against Amal Shome Bhowmik or not. He
also could not say when Sujata Das was released on bail from
the Court.
20. PW-12, Dr. Angshuman Borah deposed that on
06.05.2014 he was posted at ILS Hospital. On that day, one
patient namely Amal Shome Bhowmik aged 38 years was
admitted in the hospital with a history of head injury and poly
trauma following physical assault. The said patient was brought
to ILS Hospital from GB Hospital on that day at 12:05 pm with a
history of loss of consciousness. After examination, he found (i)
Stitched lacerated injury over left parieal scalp approximately 5
cm in his head brain abdomen limbs and it was grievous in
nature caused by heavy sharp weapon. (ii) Lacerated injury 0.5
cm later cantus of right eye and also he found another cut injury
in right subcostal region approximately 12 cm x 1 cm and
multiple abrasion in both upper limbs. Thereafter he submitted
his report on 09.06.2014 and identified the report which was
marked as Exbt.-12 as a whole.
21. PW-13, Samir Kanti Das deposed that on 18.04.2015 he
was attached to N.C.C. P.S. as SI of police and on that day, this
case was reendorsed to him for completion of investigation and
during investigation he examined witnesses Sikha Deb Roy and
Amal Shome Bhowmik and recorded their statements and
Page 16 of 24
collected the report of SFSL and on completion of investigation,
he laid charge-sheet against the appellants.
During cross-examination, he stated that during
investigation it did not reveal to him as to whether accused
Sujata filed one case against Amal Shome Bhowmik at East
Agartala Women PS or not.
22. As already stated, the appellants were examined in this
case as DWs-1 and 2.
DW-1, Sujata Das deposed that she is the accused of
this case and apart from her, this case was lodged against her
husband and another Rakhal Sarkar who expired during
investigation and the alleged accident took place on 06.05.2014.
On that day, Amal Shome Bhowmik came to her house in the
morning at about 7 to 7:30 am in search of her husband when
she was with her baby in the house and no other person. She
told him that her husband is not in the house as he has gone to
school of his daughter for giving her in the school. That time,
Amal Shome Bhowmik attacked her and caught her neck when
her baby was in her lap, he opened her dress and torned her
blouse and snatched her baby and thrown away on the floor. He
also pushed her on the floor. She was crying for safety when she
s trying to
used ‘Dao’ against Amal Shome Bhowmik as he wa
commit rape at that moment. He ran away from his house and
she came out of his house by crying keeping her baby in her lap.
The neighbouring people came and appeared therein. The family
members of her father also came to the spot. She came to
Page 17 of 24
N.C.C. P.S. leaving her baby with her brother. She informed the
matter to N.C.C. P.S. Police took her to GBP Hospital for medical
checkup. Thereafter, they took her to the East Agartala Women
P.S. and accordingly, she laid one FIR and the police also laid
charge-sheet in that case vide C.S. No.52 of 2014 and she
identified the certified copy of said case in total 14 sheets which
were marked as Exbt.-A to Exbt.-A(xiii) on identification. She
further stated that she had no personal enmity with Amal Shome
Bhowmik. In 2014, they had an agreement to purchase a land
from the sister-in-law of Amal Shome Bhowmik namely Sajal
Deb Roy. Sri Sajal Deb Roy handed over the possession of the
land after getting the consideration money but the registry of the
land could not be completed as Sajal Deb Roy had no khatian in
his name. Sajal Deb Roy took the amount of the land from them
as he was ill at that time and assured that he will register the
sale deed after getting the khatian and recovered from illness.
One meeting was called in the club namely Metropolitan club,
SDO Chowmuhani regarding payment of consideration money in
the presence of Chandramohan Sarkar, Sudarshan Dey, Chitta
Sarkar, Naba Gopal Majumder( Secretary of Club), Sajal Deb Roy
admitted that he has taken the amount of the land value but the
registry will be made later on. Total 4 meetings were called for
the purpose. The rate of the land has become higher now. So,
Amal Shome Bhowmik had prepared a plan with Sajal Deb Roy
not to get the land registered.
Page 18 of 24
During cross-examination by the prosecution, she stated
that the disputed land is under her possession and she has got
no registered sale deed in her favour. Nothing more came out
relevant.
23. Similarly, DW-2, Asim Das another appellant stated that
Sujata Das is his wife. He in his examination-in-chief tried to
support the version of DW-1 in his examination-in-chief.
During cross-examination by the prosecution, he stated
that he was not the eye-witness of the incident happened with
his wife and the house of sister of Amal Shome Bhowmik was
situated 700-800 meters away from his house. Nothing more
came out relevant.
24. From the evidence on record, it appears that the
appellant also admitted the fact of injury of the victim Amal
Shome Bhowmik. Learned Trial Court below at the time of
delivery of judgment relied upon the evidence of the prosecution
ignoring the evidence of the appellants and found the appellants
grievous
guilty punishable under Section 326 of IPC. The offence ‘
20 of IPC. For the sake of
hurt’ has been defined in Section 3
convenience, I would like to mention herein below the definition
of grievous hurt as mentioned in Section 320 of IPC which is as
‘ ’
follows:
“320. 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.
Page 19 of 24
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.”
25. Since in this case, charge was framed under Section 326
of IPC so let me also discuss the relevant provision of Section
326 of IPC which reads as under:
“326. Voluntarily causing grievous hurt by dangerous
weapons or means.- Whoever, except in the case
provided for by Section 335, voluntarily cause
grievous hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument
which, used as weapon of offence, is likely to cause
death, or by means of fire or any heated substance,
or by means of any posion or any corrosive
substance, or by means of any explosive substance,
or by means of any substance which it is deleterious
to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal,
shall be punished with [imprisonment for life], or
with imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine.”
26. Here in the case at hand, I have discussed the evidence
on record of the prosecution as well as the appellants in detail as
stated above. From the evidence on record, it appears that
although the appellant Sujata took the plea that the accused
tried to outrage her modesty but she in support of her contention
could not produce any independent witness to substantiate her
allegation and DW-2, her husband in course of his examination
specifically stated that he was not present to the PO as alleged
by his wife at the time of alleged incident. So, legally there is no
scope to place any reliance upon her evidence. Thus, prima facie
it appears that the appellants by the DWs could not
Page 20 of 24
broken/dismantle the prosecution allegation. Now, from the
evidence of the victims as well as the informant and also from
the evidence of medical officers, it appears that regarding injury
there is no dispute on record. Now, from the injury report of the
victim, Amal Shome Bhowmik opined by two seperate doctors, it
appears that the evidence of both the medical officers are
contradictory to each other to some extent. Since the charge
was framed under Section 326 of IPC so simply on the basis of
oral evidence on record, there is no scope to come to a definite
finding under Section 326 of IPC in absence of medical evidence
on record. And since the medical evidence on record as stated
above, are too some extent contradictory to each other so it
appears that the prosecution has failed to prove the charge
beyond reasonable shadow of doubt against the appellants under
Section 326 of IPC.
27. Learned P.P. in course of hearing of argument although
tried to draw the attention of the court that due to causing of
hurt, vicitm Amal Shome Bhowmik has become disabled but that
oral evidence does not match with the injury reports of the
medical officer submitted and proved by the prosecution in this
case and from the oral/documentary evidence on record, it
appears to me that the prosecution has failed to satisfy the
ingredients of grievous hurt as laid down in Section 320 of IPC.
28. In course of hearing of argument, Learned Counsel for
the appellant relied upon the judgment of the Hon’ble Supreme
Court of India reported in (2003) 9 SCC 426 (State of M.P. v.
Page 21 of 24
Mishralal (Dead) & Ors.)
wherein in para No.8. Hon’ble the
Apex Court observed as under:
8. In the instant case, it is undisputed, that the
investigating officer submitted the challan on the
basis of the complaint lodged by the accused Mishrilal
in respect of the same incident. It would have been
just, fair and proper to decide both the cases
together by the same court in view of the guidelines
devised by this Court in Nathilal’s case :1990 Supp
SCC 145. The cross- cases should be tried together by
the same court irrespective of the nature of the
offence involved. The rational behind this is to avoid
the conflicting judgments over the same incident
because if cross cases are allowed to be tried by two
courts separately there is likelihood of conflicting
judgments. In the instant case, the investigating
officer submitted the challan against both the parties.
Both the complaints cannot be said to be right. Either
of them must be false. In such a situation, legal
obligation is cast upon the investigating officer to
make an endeavour to find out the truth and to cull
out the truth from the falsehood. Unfortunately, the
investigating officer has failed to discharge the
obligation, resulting in grave miscarriage of justice.
Referring the same, Learned Counsel submitted that
since there was case and cross-case so it was the duty of the
Learned Court below to try both the cases at the same time to
avoid conflict in decisions since there was admission from the
side of the victim Amal Shome Bhowmik that a specific case was
registered but in this regard, it is submitted that as raised by
Learned Counsel for the appellants at this stage, no such plea
was taken before the Learned Trial Court by the appellants
earlier. So, in absence of joint trial it cannot be said that the trial
was vitiated and the appellants were prejudiced as submitted by
Learned Counsel for the appellants.
29. Learned Counsel also relied upon another citation of the
(2005) 3 SCC 260
Hon’ble Supreme Court of India reported in
(Mathai v. State of Kerala) wherein in para Nos.14 and 15
Hon’ble Apex Court observed as under:
Page 22 of 24
14. "Grievous hurt" has been defined in Section
320 IPC, which read as follows:
"320 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 members 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."
15. Some hurts which are not like those hurts which
are mentioned in the first seven clauses, are
obviously distinguished from a slight hurt, may
nevertheless be more serious. Thus a wound may
cause intense pain, prolonged disease or lasting
injury to the victim, although it does not fall within
any of the first seven clauses. Before a conviction for
the sentence of grievous hurt can be passed, one of
the injuries defined in Section 320 must be strictly
proved, and the eighth clause is no exception to the
general rule of law that a penal statute must be
construed strictly.
Referring the same, Learned Counsel for the appellants
submitted that prosecution in this case has failed to prove the
ingredients as mentioned in Section 320 of IPC. So, the
judgment of the Learned Court below suffers from infirmities for
which the same is liable to be interfered with.
30. Learned Counsel for the appellants also further drawn
the attention of the Court referring another citation of this High
Court in connection with case No. Crl. Rev P. No.4 of 2019
(Sri Dipak Bhowmik v. The State of Tripura) wherein this
Court in para Nos.38 and 39 observed as under:
“[38] Evidently, the accused gave the blow on the
victim in the fits of anger. From the evidence of the
prosecution witnesses, it would appear that the
attack on the victim was not a premeditated attack.
Page 23 of 24
Quite evidently, the focus of the torchlight held by
the victim fell on the face of the accused which made
him agitated. Hot exchange of words took place
between the accused and the victim and in the fits of
anger he attacked the victim with a sharp edged
weapon. Even though the evidence suggests that
provocation preceded the occurrence but whether
such provocation was grave within the meaning of
section 335 of IPC cannot be determined in absence
of the exact words used during such altercation
between the accused and the victim.
39. But, considering the injuries suffered by the
victim it cannot be said that the victim suffered
„grievous hurt‟ within the meaning of section 320
IPC. However, there is no doubt that hurt of the
victim was caused by the accused by means of a
dangerous weapon and as such the conviction of the
accused petitioner is altered to that under section
324 IPC.”
Referring the same, Learned Counsel submitted that
since the prosecution has failed to satisfy the ingredients of
Section 320 of IPC and since there is admission on the part of
the one of the appellant that she dealt dao blow on the person
‘ ’
of victim Amal Shome Bhowmik, so the appellants can be
convicted in some other provision of IPC but not under Section
326 of IPC.
31. So, after going through the aforesaid citations as
referred by Learned Counsel for the appellants and also after
going through the evidence on record of the Learned Court below
as well as the judgment delivered by Learned Trial Court below
and after appreciating the arguments voiced by Learned
Counsels, it appears that prosecution before the Learned Trial
Court below has failed to prove the charge levelled against the
appellants under Section 326 of IPC read with Section 34 of IPC
but the prosecution by adducing evidence on record has been
able to prove the charge levelled against the appellants under
Section 324 of IPC read with Section 34 of IPC for which in my
considered view, both the appellants are liable to be convicted
Page 24 of 24
under the provision of Section 324 of IPC in view of provision
provided under Section 222(2) of Cr.P.C. in place of Section 326
of IPC.
32. In the result, the appeal filed by the appellants is hereby
partly allowed with modification that both the appellant are
hereby convicted under Section 324 read with Section 34 of IPC
in place of Section 326 of IPC and accordingly, the convict Asim
Das shall suffer RI for a period of 1(one) year and with fine of
Rs.5000/- i.d. to suffer further RI for 3(three) months and the
convict Smt. Sujata Das shall suffer RI for 6(six) month with fine
of Rs.5,000/- i.d. to suffer further RI for 1(one) month. Fine
money, if realized, be given to the victim, Amal Shome Bhowmik
as compensation. The judgment and order of conviction and
sentence dated 18.08.2023 delivered by Learned Additional
Sessions Judge (Court No.2), West Tripura, Agartala in
connection with case No.S.T.(T-I) No.51 of 2016 is hereby
modified to that extent as stated above. The period of detention,
if any, undergone by the appellant-convicts during trial or
investigation be set off under Section 428 of Cr.P.C. Both the
convicts shall surrender before the Learned Court below
immediately to serve out the sentence. The case is thus disposed
of on contest.
Send down the LCR along with a copy of this judgment.
Pending applications(s), if any, also stands disposed of.
JUDGE
Digitally signed by SABYASACHI
SABYASACHI
BHATTACHARJEE
BHATTACHARJEE Date: 2024.12.02 15:55:15
+05'30'
Deepshikha