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2005 DIGILAW 12 (GAU)

Sirshik Tanti v. Amrit Patnayak @ Mitra

2005-01-06

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. The challenge in this petition is the order of acquittal dated 20.2.1996 passed by the learned Sessions Judge, Dibrugarh in Session Case No. 74 of 1995 acquitting the accused respondent from charges under Section 302 IPC. This petition has been filed by Sri Sirshik Tanti, who was the informant of the case and lodged the FIR (Ext-1). It has been wrongly registered as Criminal Appeal, in fact the present petitioner has no right to file the appeal against the acquittal and it is under provisions of Section 378 Cr PC only State can file an appeal against the acquittal. Accordingly this appeal is treated as a revision against acquittal and is disposed of within the parameter of the court in deciding a revision against an order of acquittal. 2. I have heard Mr. N.N. Saikia, learned senior advocate assisted by Ms. A. Sinha. Also Heard Mr. G.P. Bhowmik, learned counsel appearing for the accused respondent and Mr. Munir, learned public prosecutor. 3. The prosecution case, in brief, is as follows: One Babli Tanti (deceased) was the wife of the accused Amrit Patnayak @ Mitra and their marriage was solemnised some time in 1990 against the wish of the family members of Babli. After her marriage Babli used to reside with the accused as his wife at the house of the accused at Hiloidhari Line No. 6 of Chabua Tea Estate, but quite often the couple used to quarrel and Babli used to come to the house of her uncle Sirshik. On 21.2.1994 at about 10 PM Smti. Masli Chawra, a neighbour of the accused, heard hue and cry from the house of the accused and when she entered the house of the accused she did not find the accused there, but saw Babli's body in flame and when Masli asked Babli as to how she got burnt Babli cried out saying that Mitra had burnt her. Masli then poured water on Babli doused the fire. Babli was badly burnt. After some time, accused Mitra came home with a thela (pulling cart) and brought Babli in the thela to their Garden hospital. In the said Garden hospital Babli told her aunt Kamli Tanti, in presence of the doctor, that her husband Mitra had closed the door of her room, poured kerosene on her and burnt her and then her husband had poured water on her. In the said Garden hospital Babli told her aunt Kamli Tanti, in presence of the doctor, that her husband Mitra had closed the door of her room, poured kerosene on her and burnt her and then her husband had poured water on her. From the said Garden hospital Babli was taken by the accused to Referral Hospital at Chabua and from there Babli was shifted to Assam Medical College Hospital, Dibrugarh. On the following day of the occurrence at about 8.00 AM Babli told her uncle Sirshik Tanti what she had already told to her aunt Kamli Tanti, on the previous night. Babli remained at the said hospital under treatment but she succumbed to the injuries on 8.3.1994 and inquest was held by police on 9.3.1994 in the said hospital. On 10.3.1994 at about 4.30 PM Sirshik Tanti (PW 1) lodged a written ejahar (Ext-1) at Chabua Police Station and treating the said ejahar as First Information Report, Chabua Police Station Case No. 34 of 1994 under Section 302 IPC was registered and upon completion of investigation police filed charge sheet against the accused under Section 302 IPC. 4. On being committed by the learned Judicial Magistrate, the case was tried by the learned Sessions Judge, Dibrugarh registering the case as Sessions Case No. 74 of 1995. During trial a charge under Section 302 IPC was framed against the accused, which was denied by him and claimed to be tried. During the course of trial prosecution examined five witnesses whereas defence examined three. After consideration and appreciation of the evidence and materials on record the learned Sessions Judge vide judgment and order dated 20.2.1996 acquitted the accused person giving him the benefit of doubt. The present revision petition has been filed by the petitioner (PW 1) informant against the aforesaid order of acquittal, as stated earlier. 5. Mr. N.N. Saikia, learned senior counsel has strenuously submitted that the learned Sessions Judge has committed grave illegality in acquitting the accused person without properly appreciating the evidence on record. The learned counsel pointed out that the evidence of PW2, in particular, has not been properly appreciated and in fact the factual parts of the evidence of PW2 were not taken note of and had it been taken note of, the accused could not have been acquitted. The learned counsel pointed out that the evidence of PW2, in particular, has not been properly appreciated and in fact the factual parts of the evidence of PW2 were not taken note of and had it been taken note of, the accused could not have been acquitted. It has been further pointed out by the learned counsel that the acquittal of the accused has caused serious miscarriage of justice. Although State has not decided to prefer any appeal against the aforesaid order of acquittal for the ends of justice the present petitioner who was the informant of the case has filed the revision petition against the order of acquittal. According to the learned counsel the evidence and materials on record clearly discloses that the accused respondent has committed the offence alleged in the FIR and his acquittal has caused grave miscarriage of justice. Refuting the aforesaid submissions Mr. K Munir, learned public prosecutor has submitted that the learned Sessions Judge has acquitted the accused on proper appreciation of the facts and circumstances of the case. The learned Sessions Judge took note of each and every circumstances appearing in the case and there is no question of any failure of justice. It was further pointed out by the learned public prosecutor that on proper appreciation of the evidence adduced by the prosecution it cannot be said, beyond reasonable doubt, that it is the accused who committed the offence. Mr. G.P. Bhowmik, learned counsel appearing for the respondent has supported the arguments advanced by Mr. K. Munir, learned public prosecutor and also submitted that it is not a case for interference by the Court in exercise of its powers under Section 401 Cr PC against an order of acquittal. 6. I have heard the rival submissions of the parties and also perused the materials on record. It is well settled principle that the power and jurisdiction of the revision court against an order of acquittal is limited to exceptional cases suffering from glaring irregularity and causing miscarriage of justice and when no such miscarriage of justice is shown to have been committed, the court is also not called upon to re-appreciate the evidence and come to a different finding than that of the trial court, in exercise of its revisional jurisdiction. In the aforesaid background and limitations I have considered the judgment and order passed by the learned Sessions Judge vis-a-vis the evidence and materials on record. It was strenuously submitted by Mr. NN Saikia, learned senior counsel for the, petitioner that the evidence of PW2 has not been considered and appreciated properly by the learned Sessions Judge committing thereby miscarriage of justice and illegal acquittal of the accused. The learned Sessions Judge took the pain to considering and appreciating the evidence of PW2 in the background of the materials available on record from paragraphs 19 to 31 of the judgment. The statement of the PW2 was thoroughly scrutinised and it was found by the learned Trial Judge that there were major contradictions in her statement made during the investigation as well as before the court, which made her statements unbelievable to that extent. Further there is evidence of animosity between the accused respondent and the PW2. The learned Sessions Judge has considered each and every aspect of the statements made by the PW2 in the aforesaid 13 paragraphs from para 19 to 31 and ultimately came to the finding that it is not possible to accept the suggestions given to PW2 by the defence that she bore grudge against the accused and she made false statement in the court. It is an interesting feature in the instant case that although the victim Babli got the burn injury on 21.2.1994 and she was in hospital since that date and expired on 8.3.1994, FIR was not lodged in between rather it was lodged only on 10.3.1994 which caused a serious doubt. 7. The statement of the PW1, the informant, was also thoroughly scrutinised by the learned trial court and his evidence was also found to be contradictory. It is noteworthy that PW1 used to dislike the accused as he eloped with Babli and married her against their consent. Similarly, evidence of PW3 and 4 were also thoroughly and properly scrutinised by the learned Trial Judge. Evidence of PW3 is only hearsay and does not throw light to the prosecution case to the extent of convicting the accused under the offence charged against him. PW4 is the investigating officer who conducted the investigation and submitted the charge sheet. PW5 is the doctor who did the post mortem examination upon the dead body of Babli. Evidence of PW3 is only hearsay and does not throw light to the prosecution case to the extent of convicting the accused under the offence charged against him. PW4 is the investigating officer who conducted the investigation and submitted the charge sheet. PW5 is the doctor who did the post mortem examination upon the dead body of Babli. The defence also examined three witnesses in support of their case and those three witnesses have also been taken note of by the learned Trial Judge. But the defence plea of alibi was rejected by the court. Upon such close scrutiny of the materials available on record the learned Trial Judge acquitted the accused by giving him the benefit of doubt as the prosecution failed to prove the case beyond reasonable doubt. While acquitting the accused person by giving benefit of doubt the learned Trial Judge has not left out of consideration any material evidence or any other materials on record requiring interference by this court. The learned Trial Judge properly assessed and marshalled the evidence and considered the case at length, took note of each and every aspect and found that the prosecution has failed to prove the case beyond reasonable doubt against the accused respondent. Sitting as a revisional court I am not inclined to disturb the aforesaid findings and decision of the learned Trial Judge, rather, there is no material to take a different view than the view taken by the learned Trial Judge. 8. In view of the aforesaid discussion this revision petition is dismissed. Petition dismissed.