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2005 DIGILAW 783 (GAU)

Sorhab Ali v. Nurul Islam Ahmed

2005-11-17

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. This criminal revision is directed against the judgment dated 19.8.99 passed by the Sessions Judge, Goalpara. 2. In Sessions Case No. 7/98, the three accused persons were tried for commission of offence under Section 302/34 IPC on the allegation that on 2.9.97 at Bandarmatha in furtherance of their common intention, they had killed Sukur Ali. The accused Ajahar Ali died during the pendency of the case and on conclusion of the trial, the learned Sessions Judge vide impugned judgment acquitted the two accused persons and hence the present revision by the informant as the State did not file any appeal. 3. The prosecution case, in brief, is that on the night of 2.9.97 the three accused persons committed house trespass in the dwelling house of Sukur Ali and thereafter accused Ajahar Ali and Mofizuddin caught hold of Sukur Ali and Nurul Islam stabbed him with a dagger as a result of which Sukur Ali died. The autopsy was conducted by Dr. K.A. Ahmed PW 7 who found as follows: There is only one punctured wound over left supra clavicular fossa (3" x 2" x 9") and the track of this punctured wound runs vertically downwards perforating the left lung (for about 8" in length in the lung) and pleurae at the site of the wound with resultant haemothorax and profuse bleeding. The left lung is collapsed and compressed with blood. The margin of the wound is smooth. Opinion: In my opinion, the cause of death is shock and haemorrhage as well as respiratory arrest as a result of the above mentioned perforating injury of the left lung which is ante mortem and probably homicidal in nature. It is caused by sharp pointed weapon. The injury that I have mentioned in my report might be caused by a weapon like Mt-Ext. 3 which is produced today. 4. The death of the deceased as a result of the injuries sustained has not been disputed or challenged and the trial court rightly held that this is a case of homicidal death. 5. The injury that I have mentioned in my report might be caused by a weapon like Mt-Ext. 3 which is produced today. 4. The death of the deceased as a result of the injuries sustained has not been disputed or challenged and the trial court rightly held that this is a case of homicidal death. 5. In the present case, we find that the alleged incident took place at night in the house of the deceased which consists of a single room and which was occupied by the deceased, Abdul Rafique PW 2 a teen-aged boy aged about 15 years and a student of class VI and PW 2's sister Sulema Khatim PW 3, and two minor children aged about 7 years and below. PW 2 has deposed that a lamp was burning in their room and while they were sleeping they heard sounds of somebody entering into the house by pushing the door and they saw the three accused Appellants entering into the house and thereafter accused Ajahar Ali and Mofizuddin caught hold of his father and accused Nurul dealt a dagger blow on the neck causing a deep perforated injury. The accused tried to take away the deceased but failed as on alarm being raised, the neighbours came. The statement of Sulema Khatim PW 3, a young girl aged about 20 years is on identical lines. 6. In order to bring home the charge the prosecution has relied on the following: 1) The evidence of the two eyewitnesses PW 2 and PW 3. 2) Evidence of PW 1 a neighbouring witness who has seen the accused persons running away from the place of occurrence. 3) The oral dying declaration of the deceased in presence of PW 2, PW 3, PW 4, PW 5 and PW 6. 4) Recovery of the weapon of assault under Section 27 of the Evidence Act by accused Nurul Islam. 7. The learned trial court vide impugned judgment acquitted the accused persons holding that the evidence of the two eye witnesses is not reliable; that the evidence regarding dying declaration is discrepant and that recovery of the weapon of assault under Section 27 of the Evidence Act is not acceptable in absence of prior statement. Before examining the evidence on record and the impugned judgment, we may recapitulate the law regarding interference in a revision against acquittal. 8. Before examining the evidence on record and the impugned judgment, we may recapitulate the law regarding interference in a revision against acquittal. 8. In the case of K.C. Reddy v. State of Andhra Pradesh AIR 1962 SC 1788 the Apex Court indicated the following categories of cases which would justify interference by the High Court with the findings of acquittal in a revision. (i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been over looked only (either?) by the trial court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence which is valid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. 9. In the case of Ayodhya Dube and Ors. v. Ram Sumer Singh AIR 1981 SC 1415 , the Apex Court held: When the Sessions Judge acquitted the accused by ignoring the probative value of FIR and reliable testimony of eyewitnesses and without considering material evidence on record and his judgment was full of inconsistencies and consisted of faulty reasoning, the order of the High Court in revision directing retrial by setting aside acquittal would be justified. 10. In the case of Bindeshwari Prasad Singh v. State of Bihar 2002 Cri.L.J. 3788, the Apex Court held: We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instance case was perverse. No defect of procedure has been pointed out. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instance case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial Court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate Court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction. It cannot be lost sight of that when a retrial is ordered, the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction. We, therefore, find no justification for the impugned order of the High Court ordering re-trial of the Appellants. 11. The learned Counsel for the Respondent accused has placed reliance in the case of Bansi Lal v. Laxman Singh AIR 1986 SC 1721 wherein the Apex Court observed: It is unfortunate that the High Court did not keep in mind the principles laid down in the aforesaid rulings regarding the limits of its revisional powers while dealing with an order of acquittal passed by the subordinate court. The mere circumstances that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside the order of acquittal and directing a re-trial of the accused. In the present case the judgment of the learned Additional Sessions Judge did not suffer from any manifest illegality. The dominant justification of the order of acquittal recorded by the trial court is the view it took of the evidence of the two eyewitnesses. Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be characterized as illegal or perverse. The dominant justification of the order of acquittal recorded by the trial court is the view it took of the evidence of the two eyewitnesses. Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be characterized as illegal or perverse. It may well be that the learned single Judge of the High Court was not inclined to agree with the said view on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would nor furnish any justification for interference in revision with the order of acquittal passed by the learned Additional Sessions Judge. Even in an appeal the appellate court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. We accordingly hold that the High Court has clearly transgressed the limits of its revisional jurisdiction under Section 439(4) of Code of Criminal Procedure in setting aside the order of acquittal passed by the Additional Sessions Judge and directing a re-trial of the case. 12. In view of the above ratio of law, let us examine whether there is any misreading/non-reading of the evidence and whether appreciation of the evidence is per se bad in law and the findings are perverse and it has led to great miscarriage of justice making interference imperative. 13. Now coming to the evidence of the two eyewitnesses, we have perused the same and find that the trial court even has doubt about their presence at the place of occurrence. As it happens to be the residence of the deceased and the eyewitnesses and the incident had taken place at night when the inmates were in the house taking rest, they were the most natural witnesses. The trial court, however, disbelieved these two eyewitnesses on the ground that according to PW 2 accused Mofizuddin caught the deceased on the left hand and accused Ajahar Ali caught him on the right hand whereas according to PW 3 Mofizuddin caught hold of the deceased by the right hand and Ajahar caught hold on the left hand. The trial court, however, disbelieved these two eyewitnesses on the ground that according to PW 2 accused Mofizuddin caught the deceased on the left hand and accused Ajahar Ali caught him on the right hand whereas according to PW 3 Mofizuddin caught hold of the deceased by the right hand and Ajahar caught hold on the left hand. As stated above, the incident had taken place at night when suddenly the two teenaged boy and girl found the assailants inside the house who assaulted their father. In such a situation, the question as to which of the assailant had caught the deceased from the right side and which of the accused caught him from the left side is very difficult to remember and it is also not very material when the evidence stands established that these two accused persons caught the deceased while the third accused gave a dagger blow. The witnesses have stated of giving a single blow on the deceased and this is corroborated by the medical evidence on record. The age of PW 2 and PW 3 is also very relevant. PW 2 was aged about 14 years whereas PW 3 was aged about 18 years. 14. The learned trial court also found discrepancies in the evidence of the witnesses as regards the weapon of assault. One of the witnesses states that it was a dagger and the other one states that it was a 'Nepali Kukri' or a 'paka dao' (bend dao). The witnesses were very specific that the dagger was about 15 inches in length and in this case, we find that the weapon of assault was seized and produced before the court which is marked as material Ext. 3. Even the doctor's evidence that the injury on the person of the deceased may be caused by weapon like material Ext. 3 was never disputed or challenged by way of any cross examination. We all know that 'kukri' is also a type of bend dao and it resembles to a dagger. Thus we find that the trial court had tried to find out discrepancies which were non existent. 15. The third ground on which the evidence of the eyewitnesses were not believed was regarding absence of blood marks at the place of occurrence as the Investigating Police Officer has failed to note the same in his diary. Thus we find that the trial court had tried to find out discrepancies which were non existent. 15. The third ground on which the evidence of the eyewitnesses were not believed was regarding absence of blood marks at the place of occurrence as the Investigating Police Officer has failed to note the same in his diary. We, however, find that the trial court did not go through the inquest report Ext. 2 which was prepared by the Investigating Officer PW 10. In Ext. 2 it has been specifically stated that at the time of making inquest, the Investigating Officer found deep penetrating injuries near the neck and it was bleeding at that point of time. The trial court gave much emphasis on stray statements of the witnesses that the accused persons tried to take out the deceased through the window and according to the trial court it makes the entire evidence of the eyewitnesses unreliable. 16. A bare perusal of the impugned judgment leads us to believe that the trial court in order to record an order of acquittal was trying to find fault with the prosecution case and miserably failed to adopt a rational approach. It was swayed by its figment of imagination observing that the accused persons could not have committed the offence in such a manner unless they are fools. How the accused persons in a given circumstances could have acted or reacted is in the realm of presumption. At this stage, we may recapitulate the observations in the case of State of Himachal Pradesh v. Lekh Raj (2000) 1 SCC 247 - In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law of order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought-but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind. 17. In this case, PW 1 Sohrab Ali has stated that on hearing 'halla' when he came to the house of the deceased, he saw the accused persons running away from the place of occurrence and this part" of the evidence of PW 1 was challenged by giving a suggestion to him that he did not state in the above manner before the Investigating Police Officer meaning thereby that this is an obvious development. However, we find that the defence did not bring out the contradiction through the Investigating Police Officer. On the contrary the Investigating Officer has stated that PW 1 told him that some other persons were also there with the accused persons. In the entire judgment the trial court has not considered the evidence of PW 1 and has not recorded any finding, which amounts to non-reading of the vital evidence. 18. As regards the recovery of the weapon of assault, Material Ext. 3, the Investigating Police Officer and other witnesses has stated that the accused Nurul Islam led police and produced the weapon of assault Material Ext.3 and the same was seized by police. The Investigating Police Officer PW 9 has deposed that on the Material Ext. 3 there were blood marks on it. The trial court has discarded the entire evidence of recovery under Section 27 of the Evidence Act on the ground that no statement of the accused Nurul was recorded prior to the recovery. This has been admitted by the Investigating Police Officer. 3 there were blood marks on it. The trial court has discarded the entire evidence of recovery under Section 27 of the Evidence Act on the ground that no statement of the accused Nurul was recorded prior to the recovery. This has been admitted by the Investigating Police Officer. In support of this finding, the trial court has relied on a decision of this Court in the case of Phusu Koiri v. State of Assam reported in 1986 Cri.L.J. 1057. It seems that the trial court was oblivious of the later decisions of this Court in the case of Alphus Munda v. State of Assam (1996) 3 GLT 568. This decision was reiterated by the Division Bench wherein it was held that Section 27 does not provide for writing out the information given by the accused and the information can be verbal. 19. So far the dying declaration is concerned, there is evidence of as many as six witnesses on that count and they have all deposed that when they reached near the deceased, the deceased was in a position to speak and he gave a detailed statement as to how the two accused persons caught hold of him and the third accused Nurul gave a dagger blow on his neck. The dying declaration was thrown out solely on the count that PW 1 did not mention about the dying declaration in the FIR Ext. 1. The omission to mention about the dying declaration in the FIR was examined by the Apex Court in the case of State of Madhya Pradesh v. Dhirendra Kumar (1997) 1 SCC 93 . Section 154--Omissions in FIR--Omissions to mention about dying declaration in FIR--Held, cannot by itself make the witness deposing about the dying declaration unbelievable--Evidence of the witness has to be tested on its own strength or weakness. 20. The FIR in this case was lodged by Sohrab Ali PW 1 who was not an eyewitness to the occurrence but we find that the names of the three accused persons were specifically mentioned in the FIR. So far PW 4, PW 5 and PW 6 are concerned; they have also deposed about the making of the dying declaration by the deceased and there cannot be any contradiction from the FIR which was not lodged by them. 21. So far PW 4, PW 5 and PW 6 are concerned; they have also deposed about the making of the dying declaration by the deceased and there cannot be any contradiction from the FIR which was not lodged by them. 21. In view of the aforesaid, we have no hesitation whatsoever to hold that the impugned judgment suffers from the vice of non-reading and misreading of the evidence and the appreciation of evidence is apparently perverse and it has led to great miscarriage of justice. We, however, think not to go deep into the matter lest it may prejudice the accused persons. Interference is called for and accordingly, we allow this revision and set aside the order of acquittal recorded against the Respondent accused persons. The matter is remitted back to the Sessions Judge, Goalpara to hear the parties and write a fresh judgment. 22. We would like to make it very clear that the Sessions Judge shall not be influenced in any manner by any of the aforesaid observation made by us which was exclusively for the purpose of disposing of the present revision only. 23. The revision stands allowed. Send down the records. The Respondents accused persons shall appear before the Sessions Judge, Goalpara on 17th December, 2005. Send down the records immediately. Petition allowed.