BIMAL DAS Vs. STATE OF TRIPURA

JUDGEMENT

(1.) THE instant application is filed by one Shri Bimal Das for bail of accused Shri Shyamal Das who was arrested on 23. 5. 2008 in connection with West Agartala PS Case No. 97/2008 under Sections 344/325/302 IPC, which was registered on the basis of an information lodged by one Sukuntala Banik, the mother of the deceased Biswajit Banik, who was the accused in West Agartala PS Case No. 89/08 under Section 380 IPC lodgd by the wife of the present accused person.

(2.) THE brief fact of the prosecution case is that one Smti Sukuntala Banik lodged a written complaint on 20. 5. 2008 at about 1750 hours to the Officer-in-Charge of West Agartala Police Station to the effect that the accused Shyamal Das and his wife Smti Soma Das were creating pressure upon her to transfer her residential hut for them and on 9. 5. 2008 at about 1. 30 p. m. one Shri Nikhil Debnath, an associate of accused Shyamal Das carried her son with a motor bike towards Bapuji School and on that day at about 7. 30 p. m. , wife of the present accused, Shri Nikhil Debnath and Shri Bikash Debnath and others entered into her house and informed that a theft has been committed by her son in the house of the present accused and they created pressure to bring out the golden ornaments which are the subject matter of the theft and the same was done with a view to create pressure to transfer the house and the articles kept in the house and on the following day, i. e. on 10. 5. 2008 the miscreants brought her son in the morning at about 7. 30 a. m. and she noticed injuries on his face and neck and the accused, his wife and their associates assaulted her son to bring out their stolen articles and after half an hour they again took away her son somewhere else. It is further alleged that on 11. 5. 2008 in the morning at about 8 a. m. they again brought her son from unknown place and kept him in the front of the door of her house and due to assault her son was not in a position to talk properly. She further alleged that the present accused and his associates also assaulted her and threatened to bring out the stolen articles and at that time Shri Nikhil Debnath brought out a small chain and one ring from a packet made of paper and told that same was found in the pocket of her son and the above mentioned miscreants along with others asaulted her son. She also alleged that at about 1 p. m. they informed the police and on getting the said information, police came and took away her son and thereafter on Tuesday on getting information from the police, she went to GB Hospital, found her son admitted in the Hospital and she noticed injuries over the whole body, face of her son and he was not in a position to speak properly and on 16. 5. 2008 at about 10. 30 p. m. , her son expired in the GB Hospital and it is alleged that due to the torture by the present accused and other miscreants whose names are mentioned in the complaint, her son expired and the Officer-in-Charge of the Police Station treated the said complaint as FIR and registered West Agartala PS Case No. 97/2008 under Sections 344/325/302 IPC. The accused was arrested on 23. 5. 2008 in connection with the aforesaid case and was produced before the Court of learned Chief Judicial Magistrate, West Tripura, Agartala on that day who rejected his bail prayer and remanded him to the police custody for five days. Thereafter, when the accused was produced before the learned court, the court remanded him to the jail custody by rejecting his bail prayer and since then the accused is in custody and by this time, the investigating agency has filed the charge-sheet against the present accused along with others showing some of them as absconders.

(3.) MR . Choudhury, learned senior counsel for the petitioner placing reliance on the forwarding report dated 12. 5. 2008 submitted by the Sub-Inspector of Police, Battala TOP before the learned Chief Judicial Magistrate, West Tripura in connection with West Agartala PS Case No. 89/08 submits that the deceased Biswajit was arrested for alleged theft of hard cash of Rs. 50,000/- (approx), Gold ornaments, Laptop and other garments. He also heavily relied on the forwarding report to the effect, inter alia, in process of detaining by public the forwarded accused person Sl. No. 1 received minor injuries on his person. He also placed reliance on the order of the learned Chief Judicial Magistrate, West Tripura, Agartala dated 12. 5. 2008 wherein the learned CJM after perusing the medical report of the Medical Officer, IGM Hospital stated, inter alia, "perused the medical report of Medical Officer of IGM Hospital. No external injury is mentioned in the report. Accused Biswajit Banik also being asked did not complain about any assault or bodily pain. " And contended that from the aforesaid forwarding report and the order of the learned CJM, it is evident that the deceased was not assaulted by anybody including the present accused person and no prima facie case is made out against the accused under Sections 302/34 IPC, at best a case under Section 323 IPC can be made out even if it is considered that the deceased who was the accused in West Agartala PS Case No. 89/08 sustained some minor injuries on his person as mentioned in the forwarding report. He also submits that the deceased was produced before the learned Chief Judicial Magistrate, West Tripura, Agartala on 12. 5. 2008 and he expired on 16. 5. 2008. Therefore, it cannot be said that his death was caused due to the alleged beating. He further submits that by this time charge-sheet has been filed and there is no possibility of absconsion of the present accused as there are some other cases against him which are pending before the court and he is appearing in those cases. His further submission is that since the charge-sheet has already been filed, there is no question of tampering the evidences. Unless the accused is enlarged on bail, he will be deprived of defending his cases in the trial court.