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2005 DIGILAW 203 (GAU)

Captain Tanti v. State of Assam

2005-03-11

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. This Criminal Revision application is directed against the judgment and order dated 16.12.95 passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No. 8(2)/94 upholding the conviction of the accused/Petitioner under Section 325 of the Indian Penal Code and the sentence to undergo imprisonment for three months and to pay a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for Anr. six months by which while affirming the judgment and order dated 05.03.94 passed by the Judicial Magistrate, 1st Class, Tinsukia in G.R. Case No. 886/89 convicting the accused/Petitioner under Section 325 Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- and in default to undergo a simple imprisonment for one month, modified the sentence as above. 2. On the basis of the First Information Report (FIR) lodged by one Shri Sudar Tanti on 14.07.89, Kakapathar Police Station Case No. 63/89 was registered under Section 324/325 Indian Penal Code against the accused/Petitioner. It was, inter alia, alleged in the FIR that on 14.07.89 at about 10 A.M., the informant's mother Smt. Padma Tanti was assaulted and thrown away in the cowshed by the accused/Petitioner Shri Captain Tanti, S/o. Ratna Tanti, while she was clearing the cowshed in the house of Ratna Tanti. After committing the crime the accused/Petitioner fled away from the place of occurrence. 3. On the basis of the aforesaid FIR, the Police investigated the case and during the course of the investigation the Petitioner/accused was arrested. The Police also seized a bamboo stick on 14.07.89 used by the accused/Petitioner and collected the injury report in respect of injured Padma Tanti from P.H.C., Kakapathar. On completion of the investigation, the Police submitted charge sheet against the accused/Petitioner under the aforesaid Sections of the Indian Penal Code. The Police case culminated to G.R. Case No. 886/89. 4. During the trial of the case the prosecution examined as many as seven witness including the Doctor and the Investigating Officer. The following witnesses were examined by the prosecution in support of their case: P.W. 1: Shri SudarTanti-Son of the Victim P.W.2: Smti Padma Tanti-Victim P.W.3: Shri Kado Tanti-Husband of the victim P.W.4: Smti Nirmala Tanti-Grand daughter of the victim P.W.5: Shri Makan Tanti-Son of the victim P.W. 6: Dr. Prasanta Dutta-Doctor P.W. 7: Shri SudarshanDeb-I.O. 5. The following witnesses were examined by the prosecution in support of their case: P.W. 1: Shri SudarTanti-Son of the Victim P.W.2: Smti Padma Tanti-Victim P.W.3: Shri Kado Tanti-Husband of the victim P.W.4: Smti Nirmala Tanti-Grand daughter of the victim P.W.5: Shri Makan Tanti-Son of the victim P.W. 6: Dr. Prasanta Dutta-Doctor P.W. 7: Shri SudarshanDeb-I.O. 5. The prosecution also exhibited two documents namely-(1) the FIR (Exhb-1) and (2) the Medical Report (Exhb-2). The defence case was of denial and the defence did not adduce any evidence. The statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure. 6. The Trial Court on conclusion of the trial convicted the accused/Petitioner under Section 325 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and to pay find of Rs.500/- and in default to undergo simple imprisonment for one month. 7. Being aggrieved, the accused/Petitioner preferred an appeal before the learned Sessions Judge, Tinsukia which was registered and numbered as Criminal Appeal No. 8(2)/94. By the impugned judgment and order dated 16.12.95, the learned Sessions Judge upheld the conviction of the accused/Petitioner. However, so far as the sentence is concerned, same was reduced and the accused/Petitioner was sentenced to undergo- rigorous imprisonment for three months and to pay a fine of Rs.2000/- and in default to undergo rigorous imprisonment for six months. 8. It is the legality and validity of the aforesaid conviction and sentence passed against the accused/Petitioner, which is under challenge in this revision application. I have heard Mr. K. Agarwal, learned Counsel for the Petitioner and Mr. K. Munir, learned P.P., Assam. Mr. Agarwal elaborating his argument submitted that a bare perusal of the evidence adduced by the prosecution witnesses, more particularly the P.W. 4 and P.W. 5, would clearly show that they were not the eye witnesses of the occurrence. Referring to the statements made by the prosecution witnesses, Mr. Agarwal argued that there are inherent contradictions in the statements. He particularly referred to the injury report furnished by the Doctor who examined the victim, Smt. Padma Tanti and the deposition made by the witnesses including the victim. He submitted that the contradictions as regards the injuries are so apparent that the same do not stand to reason. Agarwal argued that there are inherent contradictions in the statements. He particularly referred to the injury report furnished by the Doctor who examined the victim, Smt. Padma Tanti and the deposition made by the witnesses including the victim. He submitted that the contradictions as regards the injuries are so apparent that the same do not stand to reason. He also submitted that although there are persons in the neighbourhood, they were not examined and all the prosecution witnesses are of relations and thus, interested witnesses. He found fault in not examining any independent witnesses. According to him, the P.W. 4, granddaughter of the victim woman, was a minor and thus her statements are not reliable. He finally submitted that having regard to the fact that there is no past records of any conviction against the Petitioner and having regard to the nature of the offence, even if held to be committed by him, it will be in the fitness of the case for dealing with the matter under the provisions of the "Probation of Offenders Act, 1958". 9. Mr. Agarwal, learned Counsel for the Petitioner placed reliance on the following decisions: 1) AIR 1952 SC 54 (Rameswar v. Ragthor) 2) (2003) 3 SCC 21 (Bhagawan Singh v. The State of M.P) 3) AIR 1980 SC 1873 (Purshottam v. State of M.P.) 4) AIR 1975 SC 1727 (Ram Narain Singh : Jaggar Singh v. State of Punjab) 5) AIR 1981 SC 1579 (Milkiyat Singh v. State of Rajasthan) 6) AIR 1953 SC 415 (Mohinder Singh v. the State) 7) AIR 1957 SC 514 (Vadivelu Thevan v. State of Madrass) 8) AIR 1974 SC 1936 (Hallu and Ors. v. State of M.P.) 9) AIR 1976 SC 383 (Kurunakaran v. State of Tamil Nadu) 10) AIR 1976 SC 2423 (Ishwar Singh : Ilam Singh v. State of U.P.) 11) (2003) 3 SCC 153 (State of Punjab v. Sucha Singh) 12) AIR 1984 SC 1622 (Sharad Birdhi Chand Sarda v. State of Maharashtra) 13) AIR 1977 SC 170 (Rabindra Kumar Dey v. State of Orissa) 14) AIR 1973 SC 2773 (Kali Ram v. State of Himachal Pradesh) 15) AIR 1957 SC 637 (Sarwan Singh Rattan Singh : Harbans Singh, Bhan Singh v. State of Punjab 10. As against the aforesaid arguments of Mr. Agarwal, learned Counsel for the Petitioner, Mr. As against the aforesaid arguments of Mr. Agarwal, learned Counsel for the Petitioner, Mr. K. Munir, learned P.P., Assam, submitted that the discrepancies in the statement of the prosecution witnesses are minor discrepancies and the same was but natural, their statements having been recorded after lapse of many years. He submitted that all the witnesses being illiterate belonging to die lower stratum of the society, their statements cannot be like that of the expert witnesses. He submitted that when the factum of causing injury to the victim woman is established, the accused/Petitioner cannot base his claim on those minor variations. He submitted that there being no perversity in the findings recorded by both the Courts below, no interference is called for in exercise of the revisional jurisdiction. He further submitted that the appellate court having already reduced the penalty, there is no further scope to reduce the same or to deal the accused/Petitioner under the provisions of the Probation of Offenders Act, 1958. As regards the non-reliability of the evidence of the minor girl (P.W. 4), he submitted that apart from the fact that there are other witnesses, the statement made by P.W. 4 cannot be brushed aside when the same duly corroborated the statements of the other prosecution witnesses. 11. I have considered the submissions made by the learned Counsel for the parties and the materials available on record. Both the Courts below held the accused/Petitioner to be guilty of the offence under Section 325 of the Indian Penal Code. The Trial Court convicted the accused/Petitioner on the basis of the evidence adduced by the seven prosecution witnesses including the injured woman and the Investigation Officer. The deposition made by P.W. 1 who had lodged the FIR, more or less corroborated the incident narrated in the FIR. P.W. 1 deposed that on the date of occurrence about 10 A.M. when he was at the tea garden, P.W. 4 informed him about the injury caused by the accused/Petitioner to her grandmother Padma Tanti, while she was clearing the cowshed of the accused/Petitioner. On receipt of the information, P.W. 1 rushed to the place of occurrence and brought the injured woman, P.W. 2 to Hospital. According to his deposition, there were multiple injuries on her body and she had to stay in hospital for about two months undergoing treatments. He has also stated about the injury in one of her hands. On receipt of the information, P.W. 1 rushed to the place of occurrence and brought the injured woman, P.W. 2 to Hospital. According to his deposition, there were multiple injuries on her body and she had to stay in hospital for about two months undergoing treatments. He has also stated about the injury in one of her hands. In cross-examination the defence could not dislodge his testimony, nor could bring any material contradiction. 12. P.W. 2, the injured woman also in her deposition stated about the injury caused by the accused/Petitioner. P.W. 3, who is the husband of the victim woman, although was not an eye witness, confirmed the incident in his deposition narrating the circumstances of the case. He made statements regarding the injuries on the body of his wife and the fact that she was taken to hospital. 13. P.W. 4 is the granddaughter of the victim woman and was an eye witness to the occurrence. She saw the accused/Petitioner assaulting P.W. 2, her grandmother, by means of bamboo stick. She also stated about raising hue and cry and how her father came out of the house and the accused fled away from the place of occurrence. She informed P.W. 1 regarding the occurrence. There is no reason to disbelieve her statement. 14. P.W. 5 is the father of P.W. 4 and a son of P.W. 2. He also corroborated the testimony of P.W. 4. He was also an eye witness. He made statement about his witnessing the incident in which the accused/Petitioner assaulted his mother, P.W. 2. He also stated about the injuries sustained by his mother. In his cross- examination, he confirmed the assault meted out to his mother by the accused/Petitioner. There is no reason to disbelieve his testimony. 15. P.W. 6 is the Doctor who examined P.W. 2 on Police request. He deposed on 14.07.89. On examination of P.W. 2, the Doctor found the following injuries. 1) One sharp cutting injury over the right thigh laterally above the middle part of the thigh. Size 2"x 2". 2) Sharp Cutting injury 2"x 1*1/2 on the left middle thigh. 3) Fracture of both bones of right fore arm. Confirmed by X- ray report done at Doom Dooma X-Ray Clinic on 17.07.89 by Dr. Brajen Gohain. 16. 1) One sharp cutting injury over the right thigh laterally above the middle part of the thigh. Size 2"x 2". 2) Sharp Cutting injury 2"x 1*1/2 on the left middle thigh. 3) Fracture of both bones of right fore arm. Confirmed by X- ray report done at Doom Dooma X-Ray Clinic on 17.07.89 by Dr. Brajen Gohain. 16. The aforesaid witness, i.e. P.W. 6, opined that the injuries were grievous in nature and were caused by sharp and blunt object. In his cross-examination he denied the suggestion made on behalf of the accused/Petitioner that such kind of injuries might be caused by falling on hard substances. 17. P.W. 7 is the Investigating Officer. The testimony of P.W. 7 was in conformity with the case of the prosecution and no contradiction could be brought by the defence while cross-examining him. 18. The accused/Petitioner was examined under Section 313 of the Code of Criminal Procedure and his stand was total denial. He stated that he had not assaulted Padma Tanti. As regards the injury and bleeding on the body of P.W. 2, Padma Tanti, he stated that he had nothing to do. 19. It is on the above basis, the Trial Court convicted the accused/Petitioner under Section 325 of the Indian Penal Code and sentenced him to undergo the aforementioned penalty. 20. The Appellate Court in the impugned judgment and order dated 16.12.95 meticulously discussed the evidence on record. Making a reference to the Apex Court decisions reported in AIR 1988 SC 103 (Ms. Jagadambal v. Southern Indian Educational Trust) and AIR 1983 SC 114 (Madhusudan Das v. Narayanibai), the Appellate Court observed that normally the Appellate Court should permit the findings of facts rendered by the Lower Court to prevail unless it clearly appears that some special features about the evidence of a witness has escaped its notice or there is sufficient balance of improbability to displace its opinion. 21. Both the Courts below arrived at a definite conclusion and there was proper appreciation of the evidence on record. It is true that there are certain minor variations in the depositions of the witnesses. It is also equally true that variations are also there so far as the injuries are concerned. The injuries recorded by the Doctor (P.W. 6) have already been noticed above. The prosecution witnesses in their depositions stated about the injuries. It is true that there are certain minor variations in the depositions of the witnesses. It is also equally true that variations are also there so far as the injuries are concerned. The injuries recorded by the Doctor (P.W. 6) have already been noticed above. The prosecution witnesses in their depositions stated about the injuries. While the Doctor identified fracture of both bones of right fore arm confirmed by X-ray report, the victim woman stated about causing injuries by the accused/Petitioner on her left leg, right buttock, head and right side of waist. She also stated about the injury caused to her left hand. Similarly, P.W. 3 also stated about those injuries in his depositions. It is on that basis the contradictions by and between the statements of the prosecution witnesses and the Doctor's report were highlighted by the learned Counsel for the Petitioner. However, the factum of causing injuries to P.W. 2 was fully established and no contradiction could be brought in respect of the injuries caused by the accused/Petitioner. Merely because, some variations are there in the depositions of the prosecution witnesses and the Doctor's report as regards the injuries sustained by P.W. 2, same cannot lead to a conclusion that the injuries were not caused by the accused/Petitioner. 22. Similarly, the plea of the accused/Petitioner that the evidence of P.W. 4 being a minor girl, cannot have any credence, is not acceptable. There is no absolute rule that evidence of a minor girl under no circumstances can be accepted. In the instance case, her evidence was dully corroborated by other witnesses. The real test is as to whether the prosecution could establish the offence committed by the accused/Petitioner. On perusal of the evidence on record, there is no manner of doubt and not even remotely suggested by the defence that the accused/Petitioner was not involved in the offence. His involvement in the offence is duly established from the overwhelming evidence on record. Merely because there are some minor variations as regards the injuries sustained by P.W. 2 and the statements made by the witnesses, it cannot be said that the accused/Petitioner was not involved in the crime. 23. The allegations that all the prosecution witnesses are related to each other and thus interested witnesses having relationship with the victim, by itself is not sufficient for disbelieving their testimony unless any motive is alleged and proved against them. 23. The allegations that all the prosecution witnesses are related to each other and thus interested witnesses having relationship with the victim, by itself is not sufficient for disbelieving their testimony unless any motive is alleged and proved against them. In the case of State of U.P. v. Binode Kumar reported in 1992 Crl.L.J. 1115, the Apex Court while reiterating the proposition of law observed as follows: Mere interestedness by itself is not a valid ground for discarding or rejecting the sworn testimony and nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction. What all that is necessary is that the evidence of interested or related witnesses should be subjected to a very careful scrutiny with extreme care and caution and if on such scrutiny the testimony is found to be intrinsically reliable then that evidence may be relied upon in the circumstances of the particular case to base a conviction thereon. 24. In so far as the minor contradiction or inconsistency in the evidence of the eye witnesses and other witnesses are concerned, there is no gain saying that such contradictions bound to occur with the witnesses deposing after long gap. As noticed above, the contradictions pointed out by the learned Counsel for the Petitioner are of minor variations and they do not destroy the root of the case. On perusal of the evidence on record, I find that they are convincing, true and reliable and both the Courts below rightly relied on the same. As observed above, apart from bringing the minor variations in respect of the depositions of the prosecution witnesses and also in respect of the injuries, the defence could not dislodge the prosecution case. The evidences against the accused/Petitioner are overwhelming and well established. The incident as such has not been disputed. The sole basis of the attack of the accused/Petitioner to absolve him self from the offence committed by him is on the aforesaid minor variations and not on the ground that he did not commit the offence. The evidences on record clearly indicate the involvement of the accused/Petitioner in the offence, I am of the considered opinion that the minor discrepancies in the depositions of the prosecution witnesses including the variations in respect of the injuries cannot dislodge the prosecution case so well established against the Petitioner. 25. The evidences on record clearly indicate the involvement of the accused/Petitioner in the offence, I am of the considered opinion that the minor discrepancies in the depositions of the prosecution witnesses including the variations in respect of the injuries cannot dislodge the prosecution case so well established against the Petitioner. 25. The first two cases on which Mr. Agarwal, learned Counsel for the Petitioner placed reliance are in respect of the testimony of the P.W. 4 stated to be a child witness. On the date of recording her deposition she was a student of 3rd standard. On that basis it was argued that she being a minor, her testimony was worthy of no credence. The law recognizes the child witness as a competent witness, but a child of tender age who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied upon without other corroborating evidence. The evidence of a child is required to be evaluated carefully because he/she is an easy prey to tutoring. Therefore, always the Court looks for adequate corroborating from other evidence to his/her testimony. In the instant case, P.W. 4 was not that much of tender age so as to disbelieve her statement. Moreover her statements have been corroborated by other witnesses. Thus, I see no reason as to why her statement cannot be accepted. 26. The third case on which Mr. Agarwal, learned Counsel for the Petitioner placed reliance is in respect of weightage to medical evidence. This aspect of the matter has been discussed above. Even if there is any minor variation in respect of the injuries sustained by P.W. 2, the victim woman, same cannot be said to be fatal. The injuries as detected by the Doctor also sustain the conviction against the Petitioner. The discrepancies in respect of the injuries which were sought to be projected on the basis of the alleged contradictions by and between the Doctor's report and the depositions made by the witnesses have no consequence so far as the offence is concerned, which has been established to be committed by the accused/Petitioner. 27. The 4th and 5th decisions on which Mr. Agarwal placed reliance are in respect of the appreciation of evidence. 27. The 4th and 5th decisions on which Mr. Agarwal placed reliance are in respect of the appreciation of evidence. The evidence on record were gone into meticulously by both the Courts below. I hive also gone through the same. Upon evaluation of the same, it is found that the offence committed by the accused/Petitioner is well established. 28. The 6th decision on which the learned Counsel for the Petitioner placed reliance is in respect of the principle that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical, but a legal discretion between "may be proved" and "must be or should proved" as was held by the Apex Court in Shivaji Shaheb Rao Bodade v. State of Maharashtra as reported in AIR 1973 SC 2622 . In the instant case the prosecution has been able to establish the circumstances leading to the conviction of the accused/Petitioner. The evidence on record have been discussed above and there is no manner of doubt that they are overwhelming towards establishing the offence committed by the Petitioner. The contradictions are irrelevant and they do not go into the root of the case and they cannot be treated as material contradiction. I may gainfully refer to the observations of the Apex Court in the case of Gangadhar Behera v. State of Orissa reported in (2002) 8 SCC 381 : 15. As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar. 17. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. These aspects were highlighted recently in Krishna Mochi v. State of Bihar. 17. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape in not doing justice according to law. (See Gurbachan Singh v. Satpal Singh). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava). A reasonable doubt is not an imaginary, trival or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One owners whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof of beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh v. State Delhi Admn.). Vague hunches cannot take the place of judicial evaluation. (a) Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty may does not escape.... Both are public duties....(Per viscount Simon in Stirland v. Director of Public Prosecution quoted in State of U.P. v. Anil Singh SCCp. 6928/1 17) Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. 29. The decisions at serial No. 7 to 11 aforementioned were pressed into service to buttress the argument that even in exercise of revisional jurisdiction against concurrent findings of both the courts below, the revisional Court is competent to appreciate the evidence on record. The evidence on record have already been gone into to quell any doubt and the revelation from those evidence have been discussed above. 30. The other decisions on which Mr. The evidence on record have already been gone into to quell any doubt and the revelation from those evidence have been discussed above. 30. The other decisions on which Mr. Agarwal, learned Counsel for the Petitioner placed reliance are in respect of interested witnesses and nature of proof of guilt about which the principles have been discussed above and are of no assistance to the case of the accused/Petitioner. There is no dispute that when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct the irregularities/incorrectness committed by the inferior Criminal Court in its juridical process or illegality of sentence or order. In the instance case, as discussed above, there is no such error which can be said to have been committed by the Courts below requiring interference of this Court in exercise of its revisional power. 31. Having regard to the nature of offence committed by the Petitioner and the attending circumstances, I am of the considered opinion that the accused/Petitioner deserves no leniency. In that view of the matter, the alternative submissions made to invoke the provisions of the "Probation of Offenders Act, 1958" is not acceptable. The appellate Court has already reduced the sentence as noticed above. 32. In view of the above, I do not find any merit in this Criminal Revision petition and accordingly same stands dismissed. The conviction and sentence of the accused/Petitioner passed by the Appellate Court is affirmed and the accused/Petitioner is directed to surrender forthwith before the Trial Court to serve the sentence. 33. The case records be sent to the Court of the learned Judicial Magistrate, 1st Class, Tinsukia forthwith along with a copy of this judgment and order for his necessary action. Petition dismissed.