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2004 DIGILAW 298 (GAU)

Prabin Gogoi v. Ambika Gogoi

2004-04-29

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This revision is against the judgment and order, dated 17-6-96, passed by the learned Additional Sessions Judge, Dibrugarh, in Criminal Appeal No. 29(4)/95, whereby the conviction of the accused-opposite party, namely, Ambika Gogoi, under Sections 326 and 341, IPC, by the judgment and order, dated 30.10.1993, passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Dibrugarh, in GR Case No. 39/ 93, was set aside. The acquittal of the accused-opposite party, Ambika Gogoi, stands challenged by the present revision-petitioner, namely, Prabin Gogoi, who was the injured. 2. The case of the prosecution, as unfurled at the trial against the accused-opposite party, may, in brief, be stated as follows: - On 4.1.93, an FIR was lodged by one Sri Jyoti Prasad Gogoi alleging, inter alia, that on that very date, i.e., on 4.1.93, at about 7 PM, when the informant's father, Prabin Gogoi, was on his way to his village, he was assaulted by accused Ambika Gogoi with dao on his head, back and leg causing grievous injuries on the person of Prabin Gogoi. Based on this FIR, GR Case No. 39/93 aforementioned was registered against the accused-opposite party and, on conclusion of the investigation, police laid charge-sheet against the accused-opposite party under Section 326/341, IPC. 3. During trial, accused Ambika pleaded not guilty to the charges framed against him under Sections 326 and 341, IPC. In support of their case, the prosecution examined altogether 12 witnesses. The accused was also examined under Section 313, Cr.P.C. and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being, in brief, thus : The injured Prabin Gogoi went, in fact, to the house of accused Ambika Gogoi and started assaulting Smt. Subhakanta Gogoi, wife of the accused, with a lathi and while under assault, Subhakanta Gogoi, in self-defence, hit Prabin Gogoi with a piece of split fire-wood. The defence also adduced evidence by examining three witnesses. 4. The defence also adduced evidence by examining three witnesses. 4. On conclusion of the trial, the learned trial Court held the accused-opposite party guilty of the offences charged with and convicted him accordingly and sentenced him, for his conviction under Section 326, IPC, to suffer rigorous imprisonment for one year and to pay a fine of Rs.500 (five hundred) and, in default of payment of fine, to suffer simple imprisonment for one month and to suffer, for his conviction under Section 341, IPC, further simple imprisonment for one month. On appeal, the learned Additional Sessions Judge, Dibrugarh, acquitted the accused. The injured has, now, approached this Court with the present revision. 5. I have heard Mr. A. Roy, learned counsel for the petitioner, and Mr. D.K. Saikia, learned counsel for the accused-opposite party. 6. The scope of a revisional Court in matters of acquittal of an accused is, rather, circumscribed. In the absence of manifest illegality resulting in great miscarriage of justice, exercise of revisional jurisdiction in matters of acquittal is not warranted. This apart, in our criminal jurisprudence, the burden of proving the guilt of the accused rests on the prosecution. It is only when the prosecution discharges this burden that the burden shifts to the accused to prove his innocence. Even when the burden so shifts to the accused, the standard of proof required is not as high as that of the prosecution. The defence can discharge its burden by probablising the defence plea. The prosecution cannot be treated to have succeeded in proving its case by picking up holes in the defence case and/or by deriving strength from the weakness of the defence case. Even if the defence plea is false, the prosecution's burden to prove its case beyond all reasonable doubt does not get reduced. 7. Bearing in mind the above cardinal principles of criminal jurisprudence, let me, now, examine the evidence on record. 8. Even if the defence plea is false, the prosecution's burden to prove its case beyond all reasonable doubt does not get reduced. 7. Bearing in mind the above cardinal principles of criminal jurisprudence, let me, now, examine the evidence on record. 8. P.W. 3, who is the alleged victim, has deposed that at about 7 p.m., when he was on his way back home after having searched his cattle, he was over taken by accused Ambika Gogoi and his wife just in front of their house, accused Ambika's wife, Subhakanti Gogoi, assaulted him on his head and back with a bamboo lathi and as a result of the said assault, he felt his head reeling and, thereafter, he was dragged to the varandah by accused Ambika and his wife and, thereafter, he was assaulted with a dao on his knee, on the back and on the left side of his head causing injuries on his person. In the face of the evidence, so given by the injured himself, and, particularly, when he (PW 3) had not specifically asserted that he was assaulted with a dao by accused Ambika Gogoi and/or that accused Ambika had a dao in his hand, the evidence of PW 3 was capable of being interpreted to mean that it was accused Ambika's wife, who had actually assaulted PW 3 with dao at the varandah. This was a material part of PW 3's evidence, which, according to the learned appellate Court, was missed, rather, misread by the learned trial Court. The evidence, so given by PW 3, meant, observes the learned appellate Court, that it was not the accused but his wife, who had allegedly assaulted PW 3. The evidence of PW 3, so interpreted by the learned appellate Court, cannot be said to be wholly incorrect. At any rate, in the face of the omission, on the part of PW3, to state clearly that it was accused Ambika Gogoi, who had assaulted him, the possibility that it was not the accused-opposite party, but his wife, Subhakanti, who had assaulted PW 3 by lathi as well as dao could not have been boldly ruled out. 9. What logically follows from the above discussion is that the accused-opposite party, Ambika, who alone was charge-sheeted and had faced the trial, cannot be confidently held to have assaulted PW 3. 9. What logically follows from the above discussion is that the accused-opposite party, Ambika, who alone was charge-sheeted and had faced the trial, cannot be confidently held to have assaulted PW 3. Significantly, however, PW 1, PW 2 and PW 3, all of whom are sons of the injured (PW 3) and all of whom claimed to have seen the occurrence, remained completely silent about the role played by the wife of the accused. All these three witnesses, namely, PW1, PW 2 and PW 3 have deposed, in tune with each other, that it was accused Ambika Gogoi, who had assaulted their father (Prabin Gogoi) with a dao. The question, which, now, arises is as to whether PW 1, PW 2 and PW 8 could have been, in the light of the evidence on record, regarded as eye witnesses to the occurrence. The answer to this crucial question is not very difficult to find. In this regard, it is of paramount importance to note that PW 10 (Investigating Officer) has confirmed that PW 3 (i.e., the injured) stated, in his statement made before the police, that when he had reached home getting up from the place of occurrence, it was then only that his children and the neighbouring people could learn about his having been subjected to assault. The evidence, thus, given by PW 10 completely belies the assertions of PWs 1, 2 and 8 that they had come to the place of occurrence on hearing their father's cries and/or that they had witnessed assault on their father at the hands of accused Ambika. That apart, the evidence of PW 10 further reveals that PW 8 had never stated before the police that he had witnessed the assault on his father; rather, what he (PW 8) had stated before the Investigating Officer was that on hearing hulla, he rushed to the place of occurrence and found his father lying smeared with blood. These contradictions, as correctly noted by the learned appellate Court, leave no room for doubt that PWs, 1, 2 and 8 had never been eye witnesses to the occurrence and that they had no opportunity to witness the alleged assault on their father. The learned trial Court, as further noted by the learned appellate Court, failed to appreciate the evidence of these three witnesses in their entirety and correctly. 10. The learned trial Court, as further noted by the learned appellate Court, failed to appreciate the evidence of these three witnesses in their entirety and correctly. 10. Coupled with the above, there was a significant departure in the prosecution's version from what was disclosed in the FIR. In the FIR, it was alleged that when Prabin Gogoi was on his way to the village, he was assaulted by accused Ambika Gogoi, but the prosecution's evidence revealed, as observed by the learned appellate Court, that the assault on PW3 had taken place at the compound of the accused. If it was so, then, why an attempt was made to suppress this fact in the FIR. Suppression of this fact, correctly noted the lower appellate Court, gives rise to the possibility that the prosecution witnesses including the victim tried to cover up the actual facts of the occurrence. PW 12, who is brother of the victim, Prabin Gogoi, has completely belied the occurrence as was projected by PW 3 with the support of his three sons, namely, PWs 1, 2 and 8. According to the evidence of PW 12, on the day of occurrence, he heard "hulla" from the house of accused Ambika Gogoi and, on going there, he saw accused Ambika's wife, Subkakanti Gogoi, being assaulted by Prabin Gogoi (PW 3) with a lathi and when he (PW 12) tried to stop PW 3, PW 3 pushed him aside, he (PW 12) fell down and saw Prabin (PW 3) chasing Ambika's wife towards her house. Thus, the present petitioner, Prabin Gogoi, was seen assaulting Subhakanti Gogoi. The evidence of PW 12 speaks loud and clear as to how the occurrence had commenced. The evidence of PW 12, thus, explains why the informant had tried to suppress actual facts about the occurrence. 11. Situated thus, the learned appellate Court was correct in observing that the evidence of P.W. 12 indicates that it was Prabin Gogoi, who had started the occurrence by assaulting Subhakanti Gogoi, wife of accused Ambika Gogoi, and it was, perhaps, for this reason that in his evidence, PW3 implicated only the wife of accused Ambika Gogoi and did not specifically implicate Ambika as his assailant. Moreover, even Prabin Gogoi admitted the presence of Ambika's wife and this aspect of the matter was completely missed and not properly appreciated by the learned trial Court. 12. Moreover, even Prabin Gogoi admitted the presence of Ambika's wife and this aspect of the matter was completely missed and not properly appreciated by the learned trial Court. 12. In the light of what has been pointed out above, when one turns to the evidence of DW3 (Subhakanti Gogoi), wife of accused Ambika, it transpires that when she was being given blows by Prabin Gogoi with a lathi, she in order to defend herself from further blows, assaulted Prabin Gogoi with a piece of split fire-wood. That apart, some injuries were found on the person of DW 3, wife of Ambika Gogoi. Such evidence being available on record, the learned appellate Court was justified in concluding that the defence version has been probablised and the defence has been able to discharge its onus in establishing the plea of right of private defence of the body by DW3. When the evidence on record reveals that the wife of the accused was subjected to assault by PW 3 (Probin Gogoi), the possibility cannot be ruled out that DW 3 genuinely apprehended that further assault, at the hands of PW 3, might result in her sustaining grievous hurt and, in such a situation, DW3 (wife of the accused) was within her right in assaulting PW 3, as a measure of self-defence, and causing thereby even grievous hurt in defence of her body, for, the right of self-defence cannot be weighed in golden scale. The learned appellate Court, therefore, held the accused-appellant not guilty of the charges framed against him. I see no flaw in the evidence discussed and the conclusions drawn by the learned appellate Court. At any rate, the possibility that it was at the hands of Subhakanti Gogoi and not the accused-opposite party, Ambika Gogoi, that PW 3 was injured, could not have been boldly ruled out. In the face of such a possibility coupled with the fact that present case was nothing, but an admixture of half-truth and untruth, it could not have been legally concluded, contrary to what the learned trial Court did, that it was none, but the accused-opposite party, who had assaulted the present petitioner. 13. Because of what have been discussed and pointed out above, the reasons assigned by the learned appellate Court for acquitting the accused cannot be said to manifestly illegal and/or perverse. 14. 13. Because of what have been discussed and pointed out above, the reasons assigned by the learned appellate Court for acquitting the accused cannot be said to manifestly illegal and/or perverse. 14. Situated thus, I am of the firm view that the impugned judgment and order of acquittal of the accused-opposite party needs no interference. 15. In the result and for the foregoing reasons, this revision fails and the same is accordingly dismissed. 16. Send back the LCRs. Revision dismissed.