Bipul Deb vs The State of Tripura

S. Talapatra, J.—1. Heard Ms. P. Ghatak, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the state.

This is a revision petition under Section 401 read with Section 397 of the Cr.P.C. against the judgment dated 23.08.2013 delivered in Criminal Appeal No. 15(2)/2013 by the Sessions Judge, South Tripura, Udaipur, convicting the petitioner under Section 325 of the IPC. As consequence of that judgment, the petitioner has been sentenced to suffer rigorous imprisonment for one year with fine of Rs. 10,000, in default to suffer simple imprisonment for further two months.

In short, the prosecution case is that, the complaint dated 26.09.2011 filed by one Avijit Das (PW.5) disclosed that on the same day i.e. 26.09.2011 at about 2.45 pm while he was discharging his duties in connection with a gherao of the police station he was beaten up by the accused person, namely Bipul Deb. On the basis of the said complaint, Kakrabon P.S. Case No. 171/2011 under Sections 353/333/511 of the IPC was registered and taken up for investigation. On completion of the investigation, the chargesheet was filed. When it was found that the offences were exclusively triable by the court of sessions, the police papers were committed to the court of the Sessions Judge. The Sessions Judge, however, transferred the case being S.T. No. 68(ST/U)/2012 to the court of the Assistant Sessions Judge, South Tripura, Udaipur. The Assistant Sessions Judge framed the charge against the accused petitioner under Sections 333/353 read with Section 511 of the IPC. The petitioner denied the charge and claimed to face the trial.

In order to substantiate the charge, as many as 11 witnesses were examined including Dr. Santanu Roy (PW.11), who treated the victim immediately after he received the injuries. It is to be noted here that the accused appeared as the defence witness in the trial.

The trial court after appreciating the evidence so recorded, passed the judgment of conviction dated 05.04.2013 under Sections 333/353 of the IPC and sentenced the petitioner to suffer simple imprisonment for two years with fine of Rs. 2,000, in default to suffer further imprisonment for one month under Section 333 of the IPC. The petitioner was further sentenced to pay fine of Rs. 1,000, in default to suffer further imprisonment for one month under Section 353 of the IPC. By filing an appeal, being Criminal Appeal No. 15(2)/2013 in the court of the Sessions Judge, South Tripura, Udaipur, as the punishment so imposed was below seven years, the petitioner challenged the judgment of conviction as passed by the trial court.

The appellate court set aside the judgment of conviction and sentence by the trial court by acquitting the petitioner from the charge under Sections 333/353 of the IPC. However, the appellate court made the following observation for convicting the petitioner and nothing beyond that has been stated as to how the conviction has been given under Section 325 of the IPC without altering the charge:

"After careful analysis of the evidence on record, it is found that the appellant actually committed no offence punishable under Section 333/353, IPC. The evidence on record established that he voluntarily caused hurt to Abhijit Das, who was a driver of a police vehicle not discharging his official duty. The victim suffered grievous hurt caused by the appellant. Therefore, the appellant committed the offence punishable under Section 325, IPC. Accordingly, he is convicted under Section 325, IPC which is discussed in point No. 1. The appeal is, therefore, party allowed."

In this regard, it is to be mentioned that in the point No. 1, the statement of PW.11 and the injury report admitted by him have been elaborately discussed. The relevant part of the testimony of PW.11 therefore is of relevance in the context and accordingly the said part of the statement is extracted hereunder:

"On 26.09.2011 I was working as Medical Officer at T.S.D. Hospital, Udaipur. On that day, I attended one patient, namely, Shri Abhijit Das with a history of pain and impaired hearing. Tinnitus, feeling of heaviness in his left ear following blunt injury to the left ear. After examination, I found no external mark of injury. I also found one perforation of left lympanic membrane. The injury was caused by the blunt weapon. The nature of the injury was grievous. I prepared my Report on 19.10.2011. This is the Report prepared by me in my own hand writing along with my signature therein. The whole Injury Report on identification is marked as Exhibit-6 as a whole. The nature of injury sustained by the victim may happen if some one gets a stroke of lathi on his ear part."

In the cross-examination, PW.11 has further submitted as under:

"It is not a fact that in all cases of internal injury there will be some external injury. It is not a fact that the kind of injury sustained by the victim, i.e., the perforation is not grievous.

By clinical test and by examination I found that the patient was having impaired hearing. At the time of examination of the patient in the hospital there was no machine to know about the extent of the impaired hearing."

[Emphasis added]

It has been categorically stated that the petitioner has suffered impaired hearing.

Ms. P. Ghatak, learned counsel appearing for the petitioner has argued that the injury as stated by PW.11 does not come under the definition of ''grievous hurt'' as provided under Section 320 of the IPC inasmuch as the victim (PW.5) did not suffer any of the injuries as catalogued under Section 320 of the IPC. She has categorically submitted that there is no permanent privation of hearing of either ear and as such the finding in the point No. 1 of the judgment as returned by the appellate court is unsustainable. That apart, she has raised another question which is very significant and has substantial impact on the appreciation of the procedure that has been adopted by the appellate court in convicting the petitioner. According to Ms. Ghatak, learned counsel, without framing any charge afresh or altering the earlier charges and on affording any further opportunity to the petitioner the conviction under Section 325 of the IPC has been returned and thus the petitioner has suffered serious prejudice. Ms. Ghatak, learned counsel has further submitted that the scope of Section 222 of the Cr.P.C. is confined to a category of offences which are interlinked by their nature and described in the parlance as cognate offences. The court cannot without framing charge, convict a person except those offences. The alternative that was available to the appellate court was not adopted. The appellate court could have remanded the matter back to the trial court for framing an alternative charge and trying the petitioner on the said charge providing all the opportunities of defence. Since that has not been done, the impugned judgment is liable to be set aside and quashed and the petitioner is entitled to be acquitted from that charge.

Mr. A. Ghosh, learned Public Prosecutor appearing for the state, has admitted that no alternative charge was framed by the appellate court and straightway the petitioner has been convicted though the offence punishable under Section 325 of the IPC cannot in any way be deemed cognate to the offence punishable under Sections 333 and 353 of the IPC.

Having regard to what has emerged from the submissions of the learned counsel for the parties and on scrutiny of records, this court is of the opinion that the conviction under Section 325 of the IPC is not liable to be sustained for the procedural impropriety and accordingly the impugned judgment and order is set aside. For the above reasons, this court cannot acquit the petitioner from the charge under Section 325 of the IPC. Accordingly, the case is remanded to the trial court to frame the alternative charge under Section 325 of the IPC. After observing all procedural rights of the accused person, the trial be commenced from that stage of the alternative charge. If the accused insist for recall of the witnesses already examined, he shall be permitted to do so. This court will not make further observation and the trial court shall not be influenced by any observation made in this case at all. However, the trial shall be taken to its logical end as expeditiously as possible. For this purpose, necessary notice shall be issued to the accused-petitioner for his appearance in the proceeding. The accused shall file fresh bail bond in terms of the condition of bail that he enjoyed during trial. The bail shall continue unless the condition of the bail is violated by the accused.

With this observation and direction this petition stands allowed to the extent as indicated above. Send down the LCRs forthwith.

A copy of this order be sent down to the trial court, the court of the Assistant Sessions Judge, South Tripura, Udaipur or any other appropriate court of the competent jurisdiction as would be decided by the Sessions Judge, Gomati, Tripura.