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2005 DIGILAW 721 (GAU)

Rafit Ali v. State of Assam

2005-09-23

AFTAB H.SAIKIA

body2005
A. H. SAIKIA, J.— Heard Mr. G.K. Bhattarcharyya, learned Sr. counsel assisted by Mr. P. Sarma and Ms. R. Chakraborty learned counsel appearing for the petitioner. Also heard Mr. J. Mullah, learned counsel assisted by Ms. P. Das and Ms. T. Sarma, learned counsel representing the respondents. 2. By means of this revision petition the petitioner has challenged the judgment and order dated 19.6.2004 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 1 of 2004 by which the respondent Nos. 2 to 8 were acquitted from the charges under Sections 302/34 of the Indian Penal Code, 1860 (for short, IPC) 3. The prosecution case, in brief, is that on 24.10.2001 one Md. Rafit Ali, P.W.-2 lodged an ejahar with Barpeta Police Station alleging inter alia that on the said date at about 12.30 p.m. while his son Abdul Ali, the deceased, was busy in cutting branches of a tree nearby his homestead at Khandakarpara Bhella, the respondent Nos. 2 to 8 kidnapped his son and then assaulted on his head by deadly weapon like sword. On being informed, while his mother Musstt. Arfatun Nessa (P.W.3), along with others came to rescue Abul Ali, the respondents further assaulted Arfatun Nessa, (P.W.-3), Digu Ali @ Jibu Ali, Mira Begum by sharp cutting weapons. The injured were sent to Barpeta Civil Hospital and considering the seriousness of the injury sustained by Md. Abul Ali (deceased), he was referred to Advance Neuro Science Hospital at Ganeshguri, Guwahati (hereinafter called as 'the Hospital') where he was admitted on 24.10.2001 and subsequently in the said Hospital, he succumbed to his injuries on 20.11.2001 at 5.40 a.m. 4. Investigation was commenced on the basis of the aforesaid through Investigating Officer (for short, 'the I.O.') one Sirajul Haque (P.W.8) Sub-Inspector of Police. During the investigation the I.O. visited the place of occurrence and drew up sketch map of the same and sent the deceased to Barpeta Civil Hospital for post mortem examination. The I.O. prepared the inquest report, Ext. 4 and also recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 (for short', (Cr. P.C) and arrested the/accused persons who were thereafter sent to court to face the trial. 5. On completion of the investigation, upon procuring the post mortem report provided by Dr. The I.O. prepared the inquest report, Ext. 4 and also recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 (for short', (Cr. P.C) and arrested the/accused persons who were thereafter sent to court to face the trial. 5. On completion of the investigation, upon procuring the post mortem report provided by Dr. Tarun Talukdar (P.W1) who conducted the autopsy over the dead body of the deceased, the police submitted charge-sheet against all the respondents under Sections 147/148/149/324/223/302 IPC. The trial Court, being the Court of Sessions Judge, on perusal of the materials available on record and upon hearing the learned counsel for the parties, framed charge against the respondents under Sections 302/34 EPC and when the same was read over and explained to them, the respondents pleaded not guilty and claimed to stand trial. 6. The prosecution examined as many as 9 witnesses including the Medical Officer, Dr. Tarun Talukdar, (P.W.I), Dr. Panchanan Uzir, (P.W.7), who examined the injured persons namely, Abul Ali, Arfatun Nessa and Jibu Ali, Dr. Bhupen Barman (P.W. 9) who issued death certificate of the deceased and I.O. (P.W.8). On appreciation of materials evidence on records as well as after hearing the learned counsel for the parties, the learned Sessions Judge came to the conclusion that the prosecution failed to bring home the ingredients of Sections 302/34 IPC into evidence against the respondents and acquitted all of them from those charges by the impugned judgment and order. 7. Challenging the judgment and order of acquittal, Mr. Bhattacharyya learned Sr. counsel, has submitted that the learned Sessions Judge while coming to the conclusion to acquit the respondents, despite there being five eye witnesses i.e. P.Ws. 2, 3, 4, 5 and 6 adduced by the prosecution who categorically narrated the entire incident that took place in broad day light, committed grave error on facts and in law in not adequately appreciating those evidence, being very much reliable and corroborative asserting the involvement of all these respondents in the offence so changed and as such the impugned acquittal is ex-facie an abuse of the process of law. 8. It is also argued that the learned Sessions Judge committed legal error in holding that the inquest report Ext. 8. It is also argued that the learned Sessions Judge committed legal error in holding that the inquest report Ext. 4, did not reveal any head injuries when those were, as per post mortem report, well detected and according to him, the Court ought not to have relied upon the inquest report when post mortem report clearly indicated those injuries and the same had also been corroborated by medical evidence of Dr. T. Talukdar, P.W.-l including other five eye witnesses. 9. It is also contended by Mr. Bhattacharyya, that finding of the learned Sessions Judge recorded in second paragraph at page 12/34 of the impugned judgment to the effect that "......one of the injured Jibul @ Jibu the brother of the deceased has been left out from examination. Non-examination of material witness is a serious infirmity in as much as it caused prejudice to the accused persons as it deprived them from checking the credibility of the material witnesses." is contrary to the provision of law because the non-examination of the said injured as witness when the other witness namely P.W. 3, Arfatun Nessa, the mother of the deceased herself who was also injured, was examined, is not going to effect adversely the accused persons and there was, hence, no infirmity in non-examination of the injured person as witness. 10. To substantiate his arguments addressed basically on the points of reliance on the inquest report, Ext. 4 by the learned Sessions Judge and non-examination of material witnesses, Mr. Bhattacharyya, has relied on a decision of the Apex Court reported in (2003) 2 SCC 575 (Amar Singh Vs. Balwinder Singh & Ors.) 11. In Amar Singh's case (supra), the Supreme Court in dealing with the scope of inquest report, was of the view that the basic purpose for holding an inquest was to report regarding the apparent cause of death, namely where it was suicidal, homicidal, accidental or by some other machinery etc. It was also held that Section 174 Cr.P.C. which provided the police to record the apparent cause of death describing wounds as may be found on the body and also the weapon or instrument by which they appeared to have been inflicted, did not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. 12. 12. In the instant case, the deceased died after one month succumbing to the injuries inflicted on his person and accordingly the inquest report was prepared by the police after one month. According to the learned Sr. Counsel, it can, therefore, be noted that it was natural that no injuries could be found after one month on the body of the person which was by that time healed up due to the treatment administered to him. Hence the learned Sessions Judge ought not to have relied upon the inquest report Ext. 4, rejecting the case as unfolded by the two medical officers i.e. P.W.-l who held the autopsy on the dead body of the deceased Abul Hussain and P.W. 9 who treated the deceased in the Hospital and issued death certificate Ext. 6. In support of his submission, Mr. Bhattacharyya has also drawn attention of this Court to paragraph 17 of a decision of the Supreme Court in a case of Surinder Singh & Anr. Vs. State ofU.P. reported in (2003) 10SCC 26. In the said authority their Lordships held as follows: "One of the pleas raised by the learned counsel for the appellants was that the injuries as noticed by the doctor are at variance with the ocular evidence. On a close reading of the evidence of the eyewitnesses and the doctor's report, there is no noticeable variance. The mere fact that the doctor said that injuries appeared to be on one side of the body and the witnesses said that attacks were from different sides, is too trifle an aspect. When three persons are attacking a person, the witnesses naturally get shocked. This is normal human conduct and the immediate reaction is to save the victim and to stop the assailants from further attacks. That is precisely what has been done by the eye witnesses. It is only when the medical evidence totally improbabilities the ocular evidence, that the court starts suspecting the veracity of the evidence and not otherwise." In view of the above, it is contended that discrepancy between the medical evidence and the ocular evidence was not fatal unless the medical evidence totally improbabilised the ocular evidence. In the case at hand, medical evidence was very much apparent and specific and that being so, the trial Court ought to have relied upon the medical evidence instead of inquest report. 13. Mr. Bhattacharyya, learned Sr. In the case at hand, medical evidence was very much apparent and specific and that being so, the trial Court ought to have relied upon the medical evidence instead of inquest report. 13. Mr. Bhattacharyya, learned Sr. Counsel has, further, urged that the trial court committed error on facts in accepting the time of admission of the injured Abul Ali (since deceased) in the Hospital as 6.45 am on 24.10.01 instead of exact time of 6.45 p.m. as the same was recorded inadvertently committing a bonafide mistake and such acceptance has, accordingly, highly prejudiced the interest of the petitioner/informant inasmuch as it was admitted fact that the deceased sustained injured at about 12p.m. on24.10.01 and he'had to be shifted immediately to the Hospital from Barpeta and on the basis of this fact situation, by no stretch of imagination, the time could be accepted as 6.45 a.m. In view of the same, it is submitted by the learned Sr. counsel that such finding reflects the perversity on the face of the judgment itself and it is, therefore, a fit case to be remanded for re-trial to be initiated from the stage of argument on the basis of the same set of evidence and Exts. 14. Mr. Mullah, learned counsel, for the respondents, countering the submissions advanced by Mr. Bhattacharjee representing the petitioner, has forcefully contended that the testimony of the 5(five) eye witnesses i.e. P.Ws. 2, 3,4, 5, and 6 is not at all believable and trustworthy and on the basis of their deposition alone, no conviction is warranted and learned Judge was, therefore, justified in acquitting the respondents, hi the deposition, though those eye witnesses stated that all the accused/respondents took part in the proceeding of assault on the deceased as well as the injured person named above, no one of them specifically pointed out the person who participated in the incident when as per prosecution case, the respondents took part in the assault armed with iron rod, dao and dagger. It also did not come in the evidence which weapon was used by the respondents in their individual capacity in joining hands in the alleged assault. Even not a single weapon or arm or other materials pressed into service causing injuries on the body of the deceased as well as the other injured witnesses, was seized by the police and produced before the Court as Exts. Even not a single weapon or arm or other materials pressed into service causing injuries on the body of the deceased as well as the other injured witnesses, was seized by the police and produced before the Court as Exts. Due to contradiction and omission manifest on the part of the prosecution witnesses, according to Mr. Mullah, the respondents were given benefit of doubt and resultantly they were acquitted. As such the impugned judgment and order does not warrant any interference from this Court. 15. In so far as reliance upon the inquest report Ext. 4 by the trial Court discarding the post mortem report is concerned, it is contended by Mr. Mullah that there was no mistake in law in accepting the Ext.-4 inquest report inasmuch as the basic purpose for holding inquest in terms of Section 174 Cr.P.C. is merely to ascertain whether a person has died under suspicious circumstances or a unnatural death and if so, what is the apparent cause of death. The ambit and scope of a proceeding under Section 174 Cr.P.C. does not extend to the question regarding the details as to how the deceased was assaulted and under what circumstances he was assaulted. According to him, in the instant case, in the inquest report Ext. 4, no mark of injury on the head was noticed by the I.O. On the other hand, inquest report indicated only the injuries in the wrist of the right hand and similarly two leg injuries were also recorded. Injuries also appeared to be found on the back side of the body of the deceased. In view of above, since no injury on the head was recorded in the inquest report, the trial court rightly not accepted the medical evidence as regards the injuries being contradictory to the ocular evidence. 16. Mr. Mullah, learned counsel, has further contended that the learned court below did not commit any error by non-examination of one of the injured person, mother of the deceased as argued by Mr. Bhattacharyya, learned Sr. counsel appearing for the petitioner. According to him, examination of the injured person as witness would be necessary if the testimony of other eye witnesses cannot be believed/ accepted as reliable. Bhattacharyya, learned Sr. counsel appearing for the petitioner. According to him, examination of the injured person as witness would be necessary if the testimony of other eye witnesses cannot be believed/ accepted as reliable. In the instant case, the evidence of the eye witnesses was found to be incredible and lacked trustworthiness for which it was necessary to examine the injured Jibul Ali and as such non examination of this material witnesses was rightly held to be serious infirmity by the trial court because it caused prejudiced to the accused persons as it deprived them from scanning the credibility of the other so called eye witnesses. 17. With regard to dispute raised pertaining to the time of admission of the injured Abul Ali (deceased) as 6.45 a.m., Mr. Mullah, learned counsel has contended that Ext.-6, the medical certificate of death pressed into evidence by P.W. 9, Dr. Bhupen Barman who issued the same, explicitly discloses that the deceased Abul Ali was admitted to hospital on 24.10.01 at 6.45 a.m. Even in the cross examination, P.W. 9 reasserted the said timing of admission of the deceased. According to the learned counsel, the prosecution never tried to dislodge the said statement of the doctor nor was any suggestion put made that the recording of time was a bonafide mistake or a typographical error. The finding of the learned Judge cannot, therefore, be assailed on the ground that the same suffers from perversity. Keeping in view the fact situation, I find enough force in the submission and the same is, therefore, accepted. 18. In the last leg of submission, Mr. Mullah has submitted that this Court in exercise of its revisional jurisdiction should not interfere with the impugned judgment and order of acquittal on the basis of the submissions and contentions advanced on behalf of the petitioner as noticed above. His case is that revisional power against the order of acquittal can be exercised only in exceptional cases where interest of justice requires interference for correction of manifest illegality or prevention of gross mis-carriage of justice and it would not be permissible for the High Court to upset the finding of the acquittal merely because the trial court took wrong view of law or erred in appreciation of evidence. In the instant case, no such manifest illegality or gross miscarriage of justice has been noticed. In the instant case, no such manifest illegality or gross miscarriage of justice has been noticed. In view of the facts and circumstances of the case, according to Mr. Mullah, the impugned judgment and order of acquittal may not be disturbed by this Court under Section 401 read with Section 397 Cr.P.C. 19.1 have perused the materials available on record including the impugned judgment and order. Also heard the extensive arguments canvassed on behalf of the rival parties. From a discreet inspection of the impugned judgment of acquittal, it appears that the learned Judge on proper appreciation of the testimony of the eye witnesses including the medical evidence so adduced by three doctors PWs 1, 7 and 9 and the inquest report the Ext. 4 submitted by PW-8 the I.O. as well, came to the conclusion that evidence so adduced were found not only inherently unreliable in nature but too artificial and incredible on the basis of which it would be unsafe to convict the respondents. 20. Careful perusal of the post mortem report Ext. 1 and the inquest report, Ext. 4 reveals distinct inconsistency pertaining to injuries sustained by the deceased resulting in gross variance in the medical evidence and ocular evidence. Inquest report is to be made by the I.O. just to indicate injuries which have found on the body of the deceased person. In the backdrop of the inquest report, Ext. 4, looking at the evidence of the eye witnesses were also disbelieved and discredited, the medical evidence cannot be relied upon. In the case at hand, the medical evidence wholly improbabilised the ocular evidence. Accordingly I concur with the findings of the trial Court in this regard. 21. This Court is aware of its power to be exercised under revisional jurisdiction vested upon it by Section 401 Cr. P.C. against the order of acquittal. Reappreciation of evidence is not permissible under revisional jurisdiction unless perversity is indicated. On close reading of the evidence, it appears that the judgment rendered by learned Sessions Judge did not suffer from any perversity. No gross defect of procedure has been pointed out except the reliance on inquest report which has since been answered hereinabove. It is also seen that there was no improper acceptance or rejection of evidence nor was any defect of procedure or illegality found in the conduct of the trial vitiating the same. 22. No gross defect of procedure has been pointed out except the reliance on inquest report which has since been answered hereinabove. It is also seen that there was no improper acceptance or rejection of evidence nor was any defect of procedure or illegality found in the conduct of the trial vitiating the same. 22. Admittedly, this revision application has been preferred by the private party against the impugned judgment and order of acquittal. However, it is settled that in exercise of revisional power against an order of acquittal at the instance of private party, the Court exercises on the limited jurisdiction and should not constitute itself into an appellate court which has most wider jurisdiction to go into question of facts and law and to convert an order of acquittal into one of the conviction. 23. At this stage, Mr. Bhattacharyya, learned Sr. counsel has submitted that he has not prayed for convention of order of acquittal into one of conviction. His limited prayer, in view of the manifest illegality and mis-carriage of justice caused by the trial Court as argued by him herein-above, it is a fit case of remand for re-trial. He has tried to impress upon this court that the testimony of the eye witnesses in the present case completely proved the prosecution case and the accused cannot, thus, be allowed to go on scot free. To justify his submission he has relied on a decision in a case of State of U.P. Vs. Jagdua & Ors. reported in (2003) 1SCC 456 wherein in paragraphs 7 and 8 it was held that since the evidence of three eye witnesses of the incident, one of whom was an injured witness, though interested witnesses, being family members or friends of the deceased, completely proved the prosecution case, the impugned order of acquittal was set aside. It was further held that assuming the investigation, was faulty, for that reason alone the accused persons could not be left off or acquitted and for the fault of the prosecution, the perpetrators of such a ghastly crime cannot allowed to go scot free. 24. In the instant case, I do not find any fault with the investigation. Nor was any impropriety detected in the findings of the Court below. 24. In the instant case, I do not find any fault with the investigation. Nor was any impropriety detected in the findings of the Court below. It cannot be lost sight of the fact that when a re-trial is ordered, the dice is heavily loaded against the accused/respondents and that itself must caution the court exercising the revisional jurisdiction. I, therefore, find, no justification to order for re-trial of the case as sought by learned counsel for the petitioner. 25. Relating to scope of exercising revisional power against the order of acquittal, the Apex Court in Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 in Para 9 held as follows : "9. It appears that learned Single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is coextensive with original court's jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate court is free to reach its own conclusion on evidence untrammeled by any finding entered by the trial court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior court. While exercising revisional powers the court has to confine to the legality and propriety of the findings and also whether the subordinate court has kept itself within the bounds of its jurisdiction including the question whether the court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognized in legal provinces." 26. In another case in Bindeshwari Prasad Singh alias B.P. Singh & Ors. Vs. State of Bihar (now Jharkhand) & Anr. reported in (2002) 6 SCC 650 the Apex Court dwelling upon the scope of High Court's revisional jurisdiction held in paragraph 12 of\the said judgment as follows : "12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert, a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under ection401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See D. Stephens Vs. Nosibolla, K. Chinnaswamy Reddy Vs. State of A.P., Akalu Ahir Vs. Ramdeo Ram, Pakalapati Narayana Gajapathi Raju Vs. Bonapalli Peda Appadu and Mahendra Pratap Singh Vs. Sarju Singh)." 27. (See D. Stephens Vs. Nosibolla, K. Chinnaswamy Reddy Vs. State of A.P., Akalu Ahir Vs. Ramdeo Ram, Pakalapati Narayana Gajapathi Raju Vs. Bonapalli Peda Appadu and Mahendra Pratap Singh Vs. Sarju Singh)." 27. Having regard to the above authorities settling the ambit on the revisional power of the High Court against an order of acquittal and keeping in view the discussions, observations made herein above, this Court does not find any manifest illegality resulting in grave miscarriage of justice so as to disturb the finding of the trial court acquitting the respondents by exercising the revisional jurisdiction invoked at the instance of the informant/private party. 28. Accordingly, this Court does not find any merit in this case and in the result this revision petition stands dismissed. No costs.