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2001 DIGILAW 1014 (PAT)

Rameshwar Poddar v. Mohammad Fakare Alam

2001-11-06

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. Both the aforesaid revision and criminal appeal have been directed against the common judgment dated 16.4.1996 rendered by Ram Nath. 1st Additional Sessions Judge, Saharsa, in Sessions Trial No. 173/87. 2. The revisionist is Rameshwar Poddar who was the informant of the Sessions case and the appellant is Zaffar Alam who was one of the accused of the Sessions case and who was convicted for the offences under Secs. 304 part I and 148, IPC and was Sentenced to undergo RI for 10 years for the offence under Sec. 304, IPC and was further sentenced to undergo R.I. for one year under Section 148. IPC. Both the sentences were directed to run concurrently. 3. It was submitted by the revisionists lawyer that upon the same evidence adduced in the lower Court, the trial Court convicted one Zaffar Alam and acquitted the opposite parties 1 to 6 of the revision and so the order of acquittal passed by the trial Court is illegal and improper. Five eyewitnesses were examined in the lower Court and they had all supported the occurrence of the unlawful assembly and the occurrence in which one Mauji Poddar was killed by shooting; an arrow in his stomach by Zaffar Alam, one of the members of the unlawful assembly. The opposite parties of this revision were charged under Sections 302/149. IPC and some of them had also indulged in assault upon some members of the family of the informant. So, the order of acquittal recorded by the trial Court is fit to be revised. 4. On perusal of the lower Courts judgment. It transpires that the trial Court examined the testimony of each and every witness who claimed to be the eye-witness and came to the conclusion that the witnesses were all relations to each other and no independent witness was examined. So the oral evidence was to be viewed with suspicion. The trial Court further stated that in the FIR it was not mentioned that there was any exchange of hot words between Mauji. Therefore, there was no question of Mauji being assaulted. So the oral evidence was to be viewed with suspicion. The trial Court further stated that in the FIR it was not mentioned that there was any exchange of hot words between Mauji. Therefore, there was no question of Mauji being assaulted. The trial Court doubted the story regarding assault upon Mauji also in view of the fact that in the fordbeyan of the informant there was no reference to Mauji Poddar being enraged on account of the exchange of hot words between the informant and the accused party headed by Noor Alam and protesting to the abuses showered by the accused party on account of the refusal of the informant to cast vote in favour of the Congress party. So, the trial Court stated that motive for assault upon Mauji Poddar, the deceased was a subsequent development during the course of evidence. The trial Court further stated in its judgment that the seized arrows were not produced in Court, no blood stain or bloodstained earth was seized from the P.O. The accused persons had adduced evidence or so many witnesses including some Presiding Officer and Polling Officers of particular election booths who had deposed that Noar Alam and Zaffar Alam were acting as poling agents on booths other than Pahlam booth in village Pahlam (booth Nos. 154 and 155). So, the trial Court felt that the plea of alibi taken by the accused persons of the case was probable. The trial Court further held in view of the evidence of PW 9 who was one of the I.Os. of the case that there was commotion at the polling booth of Pahlam village (154 and 155) and the I.O. had gone there to control the mob which had come to disturb the polling at the aforesaid booths. So, in view of the fact that there was a mob gathered to disturb the polling at polling booths there was chance that during the course of pelting booths there was chance that during the course of pelting of stones etc. and exchange of blows in which arrows might have been used there was further chance of Mauji being killed by the accused persons other than those who were facing trial. and exchange of blows in which arrows might have been used there was further chance of Mauji being killed by the accused persons other than those who were facing trial. Hence, the trial Court stated that it was not proved by the unimpeachable evidence that the accused who were acquitted were members of an unlawful assembly which had come to the shop of the informant demanding of him as to why he had failed to cast vote in favour of the Congress party. The trial Court further noted the fact that there were vital contradictions in the statements of the PWs made in Court with their purported statements made before the police. The inquest report was also not brought on the record by the accused. In view of all the circumstances, the trial Court did not rely on the evidence of the prosecution which consisted of only the interested witnesses and acquitted the opposite party Nos. 1 to 6 of the revision under reference. I am of the opinion that the grounds on which the trial Court recorded the order of acquittal and disbelieved the evidence adduced on behalf of the prosecution are not the grounds which suffer from any illegality or material irregularity. In a revision this Court can interfere only when the judgment of the trial Court is vitiated by the misapplication of procedural law or if visited by apparent illegalities. This Court cannot interfere in a revision simply because a different view other than the trial Courts view can be taken on the evidence on the record of the case. In all circumstances therefore. I do not think this revision has sufficient merit necessitating any interference by this Court. In the result, this revision under reference is dismissed. 5. So far the appeal is concerned, it is apparent that out of the several accused persons. it is only Zaffar Alam who has been convicted on the same evidence on which the trial Court acquitted other accused persons of the case. As per the case reported through the fordbeyan of the informant Rameshwar Poddar (Ext. 2) the informant Rameshwar Poddar was at his shop on 24.12.1984 at 2 P.M. Suddenly the accused persons in a body headed by Noor Alam came to his shop and asked of him as to why he had failed to cast vote in favour of Congress party. 2) the informant Rameshwar Poddar was at his shop on 24.12.1984 at 2 P.M. Suddenly the accused persons in a body headed by Noor Alam came to his shop and asked of him as to why he had failed to cast vote in favour of Congress party. The informant remonstrated and said that he was free to cast vote according to his choice and his right of franchise was not to be dictated by anybody. Then Noor Alam ordered for assault whereupon Zaffar shot arrow into the stomach of Mauji Poddar. The other persons on the P.O. were also assaulted. Subsequently grains kept in the shop of the informant were also looted. Mauji died at the spot and then his dead body was carried to a particular Hanuman temple. The police came and recorded the fordbeyan of the informant. From the evidence of PW 9, who was one of the I.O. of the case, and who was officer-in-charge of Salkhua police station at the relevant date it appears that place of occurrence was the shop of the informant in village Pahlam. Parliamentary Election was being held at Pahlam booth Nos. 154 and 155 where there was a commotion. PW 9 came to the booth to control the mob. The deceased was sitting on a cot near the shop of the informant as per the case where he had received the arrow injury into his stomach. However, where the dead body was found it was a temple of Hanuman which was situated 200 yards from the P.O. which was near the shop of the informant, and the informants shop was situated at a distance of 500 yards from the election booth Nos. 154 and 155 in the Phalam Panchayat house. So, it is apparent that the place of occurrence as stated by the informant was his shop at a distance of 500 yards from the election booths. It is not understandable why the dead body was not found near the shop of the informant where the deceased had allegedly received arrow shot into his stomach. There was no plausible explanation as to why the dead body was removed from the place of occurrence to the Mahabir temple. It is not understandable why the dead body was not found near the shop of the informant where the deceased had allegedly received arrow shot into his stomach. There was no plausible explanation as to why the dead body was removed from the place of occurrence to the Mahabir temple. The I.O. has stated at paragraph 7 at page 9 that he did not find any blood at the place of occurrence, He did not also find any trail of blood from the P.O. to the Mahabir temple as well where the dead body was kept on the ground. From the aforesaid evidence of PW 9, it is further apparent that the dead body was kept at the Mahabir temple and there was no blood at that spot. There was no blood at the place where arrow was shot at Mauji Poddar, the deceased, There being no explanation for removal of the dead body from the place of occurrence where the deceased received injury and there being no blood-trail from the place of occurrence upto the spot where the dead body was carried, the doubt regarding the place where the deceased was killed was genuine and doubt was rightly nursed by the trial Court regarding the manner of occurrence and at the place, as alleged. In a criminal case place of occurrence is an important aspect of the case which is to be proved beyond all reasonable doubts and in a manner, as alleged. In view of the fact that no blood was found at the place of occurrence, prosecution case was also shrouded in mystery and so it was a clear case of doubt. Of course, there was the occurrence at and near the shop of the informant, as alleged by him. It is also surprising as to why the dead body was removed from there to the Mahabir temple and why it was kept there before arrival of the police and this circumstance of this case will also create doubt whether Mauji Poddar received any arrow injury as alleged by the prosecution and either at Mahabir temple or at the shop of the informant. In view of the fact that there was a mob which had gathered to disturb the polling at booth Nos. In view of the fact that there was a mob which had gathered to disturb the polling at booth Nos. 154 and 155 which was controlled by PW 9 and other police officers, it would also be a doubtful circumstance whether the accused appellant Zaffar Alam shot arrow into the stomach of the deceased Mauji Poddar killing him at the spot. The I.O. PW 9, had also found certain arrows into the houses of some persons near about the temple and certain arrows were also seized. Certain brick-bats were also found littered at the P.O. So there was chance of the deceased receiving injury in the mob frenzy or in the exchange of blows between the groups of desperadoes which had gathered to disturb the polling there. The aforesaid circumstances apart, there was the evidence of various witnesses examined on behalf of the accused appellant to support the fact that he was an agent of the polling station at a booth much away from the Pahlam election booths and he was present at the polling station as an agent throughout the polling. The alleged occurrence is at 2 P.M. which was the polling time of all the election booths in the Parliamentary election in the relevant year. When the appellate Court itself stated in its judgment that the plea of alibi taken by the accused Zaffar Alam as also some other accused persons was probable, it is not understandable on what basis he convicted the accusedappellant. Zaffar, when he was acquitting other accused persons on the same evidence, specially when the P.O. was not proved as alleged by the prosecution. 6. I am of the opinion that the order of conviction recorded by the order of conviction recorded by the trail Court was, perhaps based mistaken interpretation of the evidence or rather based on a mechanical interpretation of the evidence just for the sake of recording an order of conviction, when there was confusion in the mind of the trial Court whether the prosecution had proved its case beyond all shadows of doubt by the evidence on the record. The order of conviction and sentence recorded by the trial Court was not justified by the evidence on record. 7. In the result, this appeal is allowed and the order of conviction and sentence is set aside. The accused appellant shall stand acquitted. The order of conviction and sentence recorded by the trial Court was not justified by the evidence on record. 7. In the result, this appeal is allowed and the order of conviction and sentence is set aside. The accused appellant shall stand acquitted. He shall be discharged from the liability of his bail bonds.