MD. KUTUB KHAN Vs. THE STATE OF TRIPURA

JUDGEMENT

(1.) This appeal is directed against the judgment dated 01.06.2011 delivered in Sessions Trial No.08(NT/K) of 2008 by the Sessions Judge, North Tripura, Kailasahar convicting the appellant No.1 under Sections 304, Part-II and 447 of the IPC and the other appellants under Sections 323 and 447 of the IPC. As consequence of that conviction, the appellant No.1 has been sentenced to suffer rigorous imprisonment for 5(five) years with fine of Rs.2,000/- (Rupees Two thousand), in default of payment of fine, to suffer simple imprisonment for 3(three) months under Section 304, Part-II of the IPC and to suffer further simple imprisonment for 1(one) month under Section 447 of the IPC. The other appellants have been sentenced to suffer rigorous imprisonment for 6(six) months under Section 323 of the IPC and simple imprisonment for 1(one) month under Section 447 of the IPC.

(2.) The genesis of the prosecution case is rooted in the written ejahar filed by one Chalik Mia(PW-1) on 10.04.2007 disclosing to the Officer-in-Charge, Kailasahar Police Station that on 10.04.2007 in the afternoon at about 4 O'clock he was transporting earth by his handcart. On the northern side of his house, there is a drain alongside the road. For convenience of carrying the earth by his cart, his younger brother had filled a small part of the drain with earth. One Abdul Malik, one Intaz Ali accompanied by the other accused persons namely, Abdul Khalek, Almas Ali, Kutub Khan, Monowar Hossain, Dilwar Hossain and Mashaid Khan had removed the earth from the drain. When the younger brother of the informant raised objection, the accused persons had abused him in filthy language. On hearing the altercation, the informant, his mother, sister and his father came out and intervened. The accused persons attacked them with dao, iron rod and dagger. Kutub Khan had given blows on the head of the informant's father by a long dao, resulting in severe bleeding cut injuries. Intaz Ali attacked his mother by iron rod and kicked in the lower abdomen. At that time, his mother was pregnant and for that assault, she was threatened of abortion. According to the written ejahar, his mother sustained severe bleeding injuries on her parson. Those accused persons had assaulted his sister by kicks and fist-blows. Thus, she had become injured. Those accused persons also assaulted the informant and his brother by fist-blows and as a result, they received swollen injuries on their parson. The informant has identified him as an auto driver. He has also alleged in the written ejahar that his auto rickshaw bearing registration No.TR-OL-2854 was also taken forcibly out of his lawful custody by the accused persons from Babur Bazar area. His father along with his mother and sister immediately went to the police station. The concerned authority of the police station sent them to the District Hospital with a zakhmi (injury) report. The informant's father namely, Farju Mia, mother namely, Bachirun Necha and his sister namely, Mina Begam were admitted in the hospital.

(3.) Based on the said written ejahar (Exbts.1, 4 & 6), Kailasahar P.S. Case No.62/2007 under Sections 326/325/34 of the IPC was registered and taken up for investigation. There is no dispute that on 11.04.2007, the informant's father namely Farju Mia succumbed to the injuries as received in the said transaction. As a result, with leave of the court, the investigation was also carried out in respect of the offence punishable under Sections 302/34 of the IPC allegedly committed by the accused persons. After the investigation was complete, the final police report chargesheeting the accused persons, the appellants herein, was filed under Sections 447/323/302/34 of the IPC as the offence punishable under Sections 302/34 of the IPC are exclusively triable by the court of Sessions, the police papers on taking cognizance were committed to the court of the Sessions Judge, North Tripura, Kailasahar as it then was. The Sessions Judge transferred the said case for trial to the court of the Addl. Sessions Judge, North Tripura, Kailasahar as it then was. Before transferring the case to the court of the Addl. Sessions Judge, North Tripura, Kailasahar, the Sessions Judge framed the charge against the appellants separately under Sections 447/34 of the IPC, under Sections 323/34 of the IPC and under Sections 302/34 of the IPC. The appellants pleaded innocence and claimed to face the trial.