w w w . L a w y e r S e r v i c e s . i n



Sunipa Saha v/s State of Tripura


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    Crl. A. No. 09 of 2014

    Decided On, 25 April 2018

    At, High Court of Tripura

    By, THE HONOURABLE CHIEF JUSTICE MR. AJAY RASTOGI & THE HONOURABLE MR. JUSTICE S. TALAPATRA

    For the Appellant: P.K. Biswas, Senior Advocate, P. Mog, Advocate,. For the Respondent: B. Choudhury, P.P., H. Debnath, U. Chanda, Advocates.



Judgment Text

Ajay Rastogi, C.J.

This is an appeal by the victim under proviso to Section 372 read with section 386 of the Code of Criminal Procedure, 1973 for setting aside the judgment dated 02.4.2014 passed by the learned Sessions Judge, South Tripura, Udaipur acquitting the 2nd respondent from the charge levelled against him under section 304 Part-1 of Indian Penal Code.

2. The case of the prosecution was that Smt. Sunipa Saha, PW- 1, daughter of the deceased, lodged a written ejahar (Exbt.P-1) on 30.9.2011 at 1620 hours to the Officer-in-Charge of Police Station West Agartala narrating that on 27/28.9.2011 in the mid night at west bank of Amarsagar, Udaipur Ayub Ali (here in after referred to as O/P) with other unknown miscreants physically assaulted and caused grave injury to her father (Naresh Ch. Saha) on the false complaint of theft and on the next morning she got a telephone call from Udaipur Hospital and after reaching there she found that her father was admitted in the hospital and on the same date, i.e. on 28.9.2011 he was referred to G.B.P. Hospital where he succumbed to the injuries sustained and she strongly believed that said Ayub Ali (O/P) with other unknown miscreants are directly responsible for his death and for the delay her explanation was that after cremation of her father she has come forward to file the written ejahar (Exbt.P-1).

3. On a written ejahar (Exbt.P-1), FIR No. 431/2011 was registered on 30.9.2011 under Section 302 IPC and after investigation charge-sheet was filed on 30.3.2013 implicating the O/P Ayub Ali as one of the accused for offence under Section 304 IPC. After receipt of the charge-sheet, the case was committed to the court of learned Sessions Judge, Gomati District, Udaipur for trial and charge was framed under Section 304 Part-1 IPC.

4. During the course of trial, prosecution examined as many as 11 witnesses and exhibited three documents viz. the FIR (Exbt.P- 1), signature of PW-1 in the FIR (Exbt.P-1/1) and postmortem report (Exbt.P-3). The statement of the O/P under Section 313 Cr.P.C., 1973 was recorded before the trial court. No further defence evidence was adduced. After hearing arguments, learned Sessions Judge, Gomati District, Udaipur acquitted the O/P vide judgment impugned dated 02.4.2014 holding that the prosecution has failed to prove beyond reasonable doubt the involvement of the O/P causing death of the deceased.

5. Being aggrieved and dissatisfied with the impugned judgment of acquittal of the O/P herein, the victim i.e. daughter of the deceased and who is also the complainant preferred the instant appeal.

6. Counsel for the appellant submits that the victim/complainant (PW-1), in her deposition, specifically stated that on the date of incident (28.9.2011) she met her father (now deceased) Naresh Saha at Tripura Sundari Hospital, Udaipur and he told her that the O/P herein conspired against him and assaulted him. Her father further told her that he was not feeling well and requested for better treatment and thereafter arrangement was made for shifting him to G.B.P. Hospital, Agartala but on the same day her father succumbed to the injuries and PW-1 was further supported by PW-4, Smt. Priti Rani Saha, wife of the deceased that the O/P Ayub Ali falsely implicated him in a case of theft and assaulted him and the O/P conspired after calling her husband (deceased) to his house and beaten him severely and though the PW-1 and PW-4 are the daughter and wife of the deceased but their statements could not have been disbelieved on the ground that there was omission in their statements under Section 161 Cr.P.C., 1973 recorded before the I.O. during investigation forgetting the provision of Section 145 of the Evidence Act that very statement of any witness intended to contradict by the defence, it is always necessary to draw the attention of the witness in writing during trial for the purpose of contradiction.

7. In the present case the part of deposition recorded by the learned trial Court at the time of examination-in-chief was not drawn attention by the defence to their 161 Cr.P.C. statement during cross-examination. So, mere attention of the Investigating Officer regarding those statements would not fulfil the provision of law of contradiction/omission according to the settled principles of law and the important depositions of PW-1 & PW-4 before the trial court ought to have been believed and proper procedure as contemplated was not followed by the defence and what being deposed by PW-1 & PW-4 have a trapping of a dying declaration of the deceased before his death regarding cause of death and was to be given its due credence.

8. Counsel further submits that even the depositions of PW-1 & PW-4 were supported by PW-5, Samir Das, who is Sub Inspector of Police, Traffic Unit, Agartala who on the date of incident, i.e. on 28.9.2011 getting information from the Duty Officer, went to the house of Ayub Ali and found the deceased Naresh Saha inside the living room of Ayub Ali. He saw him on the ground with injuries wearing a jangia only. PW-5, in his deposition, further stated that he saw trauma and marks of bruises on the face of the deceased. There was a complete corroboration and chain of event between the depositions of PWs-1, 4 & 5 and it was sufficient for the O/P to be booked further supported with the postmortem report of the deceased (Exbt.P-3) which clearly indicates that there were 8 number of external injuries with antemortem in nature and were caused by some hard and blunt object and that was supported by PW-10, Dr. Jayanta Sankar Chakraborty, Medical Jurist. The evidence of PWs-1, 4, 5 & 10 have not been properly appreciated by the learned trial Judge and the finding which has been recorded in acquitting the O/P on the face of it is perverse and needs to be interfered by this court.

9. Counsel for the O/P has supported the finding recorded by the learned trial Judge and submits that there is no perversity in the finding and needs no interference of this court.

10. We have heard counsel for the parties and with their assistance also perused the materials on record.

11. On analyzing the evidence and the case of the prosecution, we find that there is no eye witness to the occurrence. The informant of the alleged incident was Smt. Sunipa Saha (PW-1), who came to learn about the illness of her father on 28.9.2011 over telephone. She immediately rushed to Udaipur Hospital and talked with the doctor and saw her father with marks of assault and shifted him to G.B.P. Hospital, Agartala for better treatment and as deposed her father told that he was not feeling well but the injured father could not tell anything to her about his death and he succumbed to injuries on 28.9.2011 in the evening and for the alleged incident after 48 hours PW-1 submitted a written ejahar (Exbt.P-1) addressed to Officer-in-Charge, Police Station-R.K. Pur, Udaipur, South Tripura on 30.9.2011 at 1620 hours, for which the only explanation furnished by the informant/complainant is that delay was caused because she was engaged in cremation of her father.

12. PW-2, Narayan Saha, deposed that on 28.9.2011 he went to G.B. Hospital and saw the dead body of Naresh Saha and he learnt from his cousin sister that some incident occurred in the house of Ayub Ali and there he was beaten up and due to assault he died. But who was involved in the matter of assault, nothing was disclosed by the prosecution witness. PW-3, Tahim Hossain Mirda, was also completely ignorant about the person who assaulted the deceased. No name of the assailants, if any, came out from the evidence of PW-3.

13. PW-4, Smt. Priti Rani Saha, the wife of the deceased, also learnt about serious illness of her husband. This witness also talked with the deceased before his death and also saw marks of injuries over the body of her late husband and as deposed told her that O/P (Ayub Ali) falsely implicated him in a case of theft and was assaulted by him. But when her evidence before the prosecution was contradicted by her earlier statement, nothing was spelled out by her about the facts/statements given by her husband before death to the police. There is a complete exaggeration in the statements of PW-1 & PW-4 of the fact that the father/husband while admitted in the hospital had stated about the involvement of Ayub Ali and some other unknown miscreants who had physically assaulted him and gave injury to him for the reason that in her first written ejahar (Exbt.P-1) she has not stated at all about the statement, if any, being made by her father (deceased) who succumbed to injuries on 28.9.2011 in the evening at hospital.

14. At the same time, PW-5, who was the S.I. of Police, Traffic Unit, Agartala, stated in his testimony that the deceased was in senseless condition and he brought him to the hospital and arranged his treatment and he could not tell anything about the incident and there is no prosecution witness who could support that the deceased ever came into senses while he was hospitalized or he was in a position to make any statement. As per the prosecution case, no statement was made by the deceased either to the Investigating Officer or to the doctor, who had never certified that the deceased ever came into senses while hospitalized. At the same time, it was never stated by the complainant (PW-1) also in her written ejahar (Exbt.P-1) on which FIR was registered after 48 hours on 30.9.2011 at 1620 hours.

15. PW-6 and PW-7 have deposed about the death of the deceased. PW-7 stated that the death was by car accident while PW-8 stated that Naresh Saha died due to public assault.

16. PW-10, Dr. Jayanta Sankar Chakraborty, who prepared the postmortem report (Exbt.P-3) also stated in his testimony that he found injuries on the body of the deceased which were antemortem in nature caused by hard and blunt object and the cause of death was combination of Coma due to head injury and hemorrhagic shock due to injury to both lungs caused by multiple blunt trauma, but the witness remained silent about the nature of death. At the same time, in his cross-examination, he specifically stated that such injuries may be caused by falling from the motor vehicle in running condition. So, there was no definite evidence came on record to show that the injury was homicidal in nature and the postmortem report (Exbt.P-3) is silent on this issue.

17. From the entire analysis of the evidence on record, one thing could be established that the death of Naresh Saha was not normal. At the same time, no definite proof came on record that he was manhandled or died by car accident. The evidence of PW-5 established the fact that the deceased was manhandled but neither the complainant Smt. Sunipa Saha (PW-1) nor anyone has told him that the accused Ayub Ali assaulted her father. The learned trial Judge on proper appreciation of the evidence on record arrived to a conclusion that the prosecution has failed to prove beyond reasonable doubt implicating the O/P for committing the offence under the judgment of acquittal impugned dated 02.4.2014.

We have also analyzed the evidence on record & arrived to a conclusion that there is no evidence on record where the involvement of the O/P Ayub Ali can be established beyond reasonable doubt in causing the death of Naresh Saha. That apart, there is no foundation of fact much to be stated by the deceased to his family members (PW-1 & PW-4) can be termed as a dying declaration of the deceased so as to cover the alleged statement under section 32 of the Evidence Act and nothing can be inferred from the narrations of fact that has been stated by PW-1 & PW-4 in their depositions.

18. Moreover, in the circumstances, delay in filing of written ejahar (Exbt.P-1) of alleged incident of 28.9.2011 after 48 hours on 30.9.2011 at 1620 hours compound more suspicion about the truthfulness of a revelation made in the statement and leads to believe that the allegations made in the written ejahar and deposed by PW-1 & PW-5 can be relied for returning the finding of acquittal of the respondent (the accused) in the trial.


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>19. More particularly, when PW-5, the S.I. of Police, Traffic Unit, Agartala has specifically deposed that the deceased was in senseless condition and he could not tell him anything about the incident and the deceased succumbed to injuries on 28.9.2011 and the prosecution failed to show that the deceased ever came to senses after being hospitalized & before he succumbed to injuries. Less what is being stated by PW-1 & PW-4 that the deceased made statement to them about the involvement of Ayub Ali (the O/P), there is no legal evidence to rely upon such a statement beyond doubt in implicating the respondent. 20. It can be further supported by the postmortem report (Exbt.P/3) and the statement of Dr. Jayanta Sankar Chakraborty (PW-10), who in his deposition has stated that such injuries can be caused if the motor vehicle was in running condition. There was no definite evidence came on record that the injury was homicidal in nature with no specific opinion expressed about the injuries sustained on the body of the deceased. 21. After we have heard the parties, we find no perfunctory or perversity in the finding returned by the learned trial Court which may call for our interference in the instant appeal filed at the instance of the victim. 22. In the result, the appeal stands dismissed. LCR be returned forthwith.
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