Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 75 (CAL)

SUDHIR KUMAR NANDI v. DHIREN NANDI

2007-02-09

SADHAN KUMAR GUPTA

body2007
( 1 ) THIS revisional application has been preferred under Section 401 read with Section 482 of the Cr. P. C. against the judgment and order of acquittal dated 22/12/1998 passed by the learned Additional Sessions Judge, 1 st Court, midnapore in Sessions Trial No. 42/november, 1996. ( 2 ) THE circumstances leading to filing of the case is that on 16. 4. 1995 while one Rabindranath Giri was returning home at about 11. 30 p. m. at that time he found one motorcycle outside the house of one Sristidhar Basuri. Some of the opposite parties were present their. At that time Rabindranath Giri heard the opposite party No. 1 disclosing that petitioner Sudhir Nandi should be taught a lesson otherwise the C. P. I. (M) party could not be strengthened in the locality. Rabindranath thereafter reported the matter to the petitioner. ( 3 ) ON 17. 4. 1995 at about 8 a. m. while the petitioner was attending his customers, he heard the shouting of slogan and a procession was coming towards his house. The processionists, consisted of 50/60 persons belonging to the CPI (M) party, shouted various slogans against the petitioner and the opposite party Nos. 1 to 27 were in the said procession. When the procession came near that house at that time the petitioner's son Tushar Nandi, Tufan nandi and Arun Nandi, nephew of the petitioner, protested regarding the shouting of slogans against the petitioner. In. fact Tufan Nandi went to the road and asked the opposite party No. 1 as to why they were abusing his father. The opposite party Nos. 4 and 2 came running towards Tufan and the opposite party No. 1 fired from his pistol. The opposite party Nos. 2 and 4 then caught hold of Tufan nandi and opposite parties pierced the belly of Tufan by thrusting an arrow and thereafter pulled it out. Due to this Tufan fell on the ground and shouted for help disclosing that opposite party Nos. 1, 2 and 4 assaulted him in that manner. When Tushar and Arun rushed forward to save Tufan, at that time tushar was injured on his left leg by the opposite party No. 2 and Arun was injured in his left arm by an arrow. The opposite party Nos. 12 and 15 assaulted tushar with a lathi. Arun was assaulted by fists and blows by the opposite party No. 10. The opposite party Nos. 12 and 15 assaulted tushar with a lathi. Arun was assaulted by fists and blows by the opposite party No. 10. ( 4 ) TUSHAR Nandi and Arun Nandi managed to lake Tufan inside the house of the petitioner where Tufan informed his mother that opposite party nos. 1,2 and 4 assaulted him. Ultimately Tufan was taken by a 'duli' to the gopiballavpur B. P. H. C. where he was declared brought dead. ( 5 ) THEREAFTER the petitioner submitted a written complaint and on the basis of that Gopiballavpur P. S. case No. 15/1995 dated 17. 4. 1995 was started against the opposite parties/accused persons. After completion of the investigation charge-sheet was submitted against all the respondents. During trial, charges under Sections 148, 302/149, 324/149, 323/149 and 307/149, cr. P. C. were framed and same was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. The defence case, as it appears from the trend of cross-examination of the P. Ws. as well as from the statements made by the accused persons under Section 313, Cr. P. C. is that of denial. Although the defence has not disputed the incident but the accused persons clearly disputed the place and the manner by which the incident was allegedly caused. ( 6 ) IN order to prove the charges against the accused persons prosecution in all examined 25 witnesses. Defence has not adduced any evidence. Learned Trial Judge, after consideration of the entire materials, was of the opinion that there was room for doubt regarding the alleged involvement of the accused persons and as such, he gave the benefit of doubt to the accused persons and held them not guilty for the offences charged with and acquitted all of them. Although, State has not preferred any appeal against the said order of acquittal, but the petitioner being the defacto complainant, has filed this revisional application against the said order. Although, State has not preferred any appeal against the said order of acquittal, but the petitioner being the defacto complainant, has filed this revisional application against the said order. ( 7 ) IT appears from the judgment of the learned Trial Judge that he gave the benefit of doubt in favour of the accused persons on the grounds that no blood was seen in the P. O. , the Duli and the blood stained Kantha by which tufan was carried to the hospital were not seized by the Investigating Officer, non finding by the I. O. of the remnant of any bomb or cracker at the P. O. , the seizure of brickbat from the P. O. although there is no iota of evidence to show that brickbats were thrown by the accused persons at the time of the incident, the non-examination of the wife of the deceased by the I. O. and the suppression of the fact that another counter case was filed over the self-same incident. Due to all these reasons, learned Judge was of the opinion that defence version, that the incident did not take place in the P. O. , as claimed by the prosecution, has been established and there is room for doubt regarding the involvement of the accused persons and as such he was pleased to acquit all of them. ( 8 ) SAID order of acquittal has been challenged by the petitioner/defacto complainant by preferring this revisional application. According to the learned advocate for the petitioner, the reasonings, as given by the learned Judge, in holding the accused persons not guilty for the offence charged with are absolutely improper and is the result of total non-appreciation of mind resulting in gross miscarriage of justice. ( 9 ) IN order to substantiate his argument, learned Advocate for the petitioner pointed out that the learned Judge took exception regarding the fact that there was no mention in the FIR about the dying declaration that was allegedly made by Tufan before his mother and this vital omission has considerably diminished the reliability of the statement made in the FIR. This finding of the learned Judge, according to the learned Advocate for the petitioner, is thoroughly improper. ( 10 ) SECONDLY, Mr. This finding of the learned Judge, according to the learned Advocate for the petitioner, is thoroughly improper. ( 10 ) SECONDLY, Mr. Basu, learned Advocate for the petitioner argued that the learned Judge observed that there is doubt regarding the prosecution case because the wife of the deceased was not examined at all. This observation of the learned Trial Judge, according to Mr. Basu, is absolutely perverse in nature because of the fact that there is no such law that in a criminal trial all the witnesses are to be examined in order to prove the charge against the accused persons. ( 11 ) THIRDLY, Mr. Basu pointed out that the learned Trial Judge disbelieved the prosecution case also on the ground that the brickbats were seized form the P. O. although there is nothing on record to show that accused persons used the said weapon while committing the offence in question. According to the learned Advocate for the petitioner this alleged discrepancy, as mentioned by the learned Trial Judge cannot be ot much importance in comparison to the overwhelming evidence that has been led on behalf of the prosecution against the accused persons in connection with this case. ( 12 ) FOURTHLY, Mr. Basu further pointed out that the observation of the learned Judge that no blood was found in the place of occurrence and as such there was doubt in respect of the actual place where the incident took place, is nothing but perversity. In coming to such a conclusion, Mr. Basu argued that the learned Trial Judge overlooked the overwhelming direct evidence that is there, so far as the present case is concerned. ( 13 ) FIFTHLY, Mr. Basu further argued that the learned Judge observed that there was discrepancy in between the ocular and medical testimony with regard to the bleeding from the injury of the decease Tufan Nandi. According to Mr. Basu, the learned Judge failed to appreciate the evidence of the doctor who conducted the postmortem examination in this respect and arrived at a conclusion which is nothing but misappropriation of the evidence on record that is available in the record. According to Mr. Basu, the learned Judge failed to appreciate the evidence of the doctor who conducted the postmortem examination in this respect and arrived at a conclusion which is nothing but misappropriation of the evidence on record that is available in the record. ( 14 ) FURTHERMORE, learned Advocate for the petitioner pointed out that the learned Judge also disbelieved the prosecution case as because the Duli and Kantha by which Tufan was carried to the hospital and which were blood stained, were not seized by the I. O. and as such, this fact also formed the basis of the opinion of the learned Trial Judge that there was room for doubt regarding the genuineness of the prosecution case. Mr. Basu argued that this observation of the learned Trial Judge appears to be absolutely improper, if not illegal and it has certainly caused miscarriage of justice. ( 15 ) LASTLY, it has been contended by Mr. Basu that the learned Judge also disbelieved the prosecution case because of the fact that there was no mentioning about the counter case which was filed by the accused persons over the self-same incident. According to the learned Advocate for the petitioner this finding of the Id. Trial Judge clearly manifests that he was oblivient to the actual incident and preferred to ignore the overwhelming evidence by pointing out a defect in the prosecution case, which in fact was not at all in existence. ( 16 ) DUE to all these reasons learned Advocate for the petitioner argued that since the judgement, as passed by the learned Trial Judge suffers from non-appreciation of the material evidence in its proper perspective and since the finding of the learned Trial Judge regarding the alleged non fixing of the place of occurrence is nothing but an example of perversity, so there cannot be any doubt that the judgment, as passed by the learned Trial Judge has certainly caused failure of justice and as such it is a fit case for remanding the matter to the Court below for fresh trial. ( 17 ) ON the other hand, learned Advocate for the opposite parties/ accused persons argued that the findings of the learned Trial Judge are the result of proper appreciation of the evidence and it cannot be said that the judgment, so passed by the learned Trial Judge suffers from perversity resulting in miscarriage of justice. ( 17 ) ON the other hand, learned Advocate for the opposite parties/ accused persons argued that the findings of the learned Trial Judge are the result of proper appreciation of the evidence and it cannot be said that the judgment, so passed by the learned Trial Judge suffers from perversity resulting in miscarriage of justice. According to the learned Advocate for the opposite parties/accused persons, there is very little scope for the revisional Court to interfere with the findings of the learned Trial Judge since it appears that the judgment, as passed by the learned Trial Judge, is the result of proper appreciation of evidence. According to him, it is not permissible for the revisional court to interfere with the findings of acquittal, as passed by the Court below as because said judgment was passed after proper appreciation of evidence and in accordance with law. In this respect, he has relied upon the decisions reported, in AIR 1924 Cal 323 (Mamfru Chowdhury and Ors. v. King-Emperor), air (38) 1951 SC 316 (Logendranath Jha and Ors. v. Sri Polai Lal Biswas), AIR (38) 1951 SC 196 (D. Stephans v. Nosibolla) and 2002 SCC (Cr) 1181 : 2002 c Cr LR (SC) 643 (Jagannath Choudhury and Ors. v. Ramayan Singh and Anr. ). ( 18 ) IN fact at the time of argument, learned Advocate for the opposite parties/accused persons heavily relied upon the decision reported in AIR (38)1951 SC 196 (supra), wherein the scope for High Court to interfere in revision against an order of acquittal has been discussed. In the said decision Hon'ble supreme Court observed : - "the revisional jurisdiction conferred on the High Court under Section 439 is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under Section 417. It could be exercised only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on record". ( 19 ) SO it appears that the position has been made very clear by the hon'ble Supreme Court. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on record". ( 19 ) SO it appears that the position has been made very clear by the hon'ble Supreme Court. Normally against an order of acquittal, revision filed by the private complainant should not be entertained when State has not preferred any appeal. But at the same time the Hon'ble Supreme Court clearly observed that this jurisdiction can be invoked for the correction of manifest illegality or for the prevention of a gross miscarriage of justice. ( 20 ) LEARNED Advocate for the petitioner argued that the view as taken by the Hon'ble Supreme Court, in this respect still holds good and in the subsequent decisions also there is no change in respect of the ratio, as decided by the Hon'ble Supreme Court in this case. However, in addition to the said decision the learned Advocate for the petitioner cited the decisions reported in air 1962 SC 1788 (K. Chinnaswamy Reddy v. State of Andhra Pradesh), AIR 1975 SC 1258 (Podda Narayan and Ors. v. State ofandhra Pradesh) and 1982 scc (Cr) 471 (Ayodhya Dube and Ors. v. Ram Sumer Singh) on this point. ( 21 ) IT appears that in those decisions the Hon'ble Supreme Court discussed the scope for the Revisional Court to interfere in exercise of its revisional jurisdiction on the basis of a petition filed by the defacto complainant, in the decision reported in 1982 SCC (Cr) 471 (supra) the Hon'ble Supreme court clearly observed that in case the order of acquittal appears to be the result of non-application of mind, non consideration or improper consideration of material evidence, inconsistencies, faulty reasoning and lack of judicial approach on the part of the Court below resulting in grave miscarriage of justice then it will be always open for the High Court to interfere into the order of acquittal and to direct re-trial of the case. ( 22 ) SO from all those decisions, as cited by the learned Advocates for both the sides it is very much clear that in case there are glaring instances of non-appreciation of mind, faulty reasoning and lack of judicial approach on the part of the Court below which resulted in the grave miscarriage of justice then and then only the High Court can interfere in respect of an order of acquittal passed by the Court below. Keeping this legal position in mind, let us now consider as to whether it is a fit case calling for the interference of this Court against the order of acquittal passed by the learned Trial Judge. ( 23 ) I have already pointed out that it is the case of the prosecution that on the date of incident a procession comprising of about 50/60 persons of a political party came near the house of the defacto complainant raising slogans against him. In older to establish this fact the prosecution has adduced sufficient evidence and in fact it appears to me that there is no dispute In this respect. It is the further case of the prosecution that when the said procession came near the house of the defacto complainant then his son Tufan along with two others came out of their house and protested against the raising of slogans making allegations against the defacto complainant. In order to establish this fact, it appears from the judgment that sufficient evidence has been adduced. It is also the case of the prosecution that when Tufan protested then one of the accused/opposite parties, being the uncle of Tufan assaulted him with an arrow which pierced the belly of Tufan and thereafter this opposite party along with others took out the said arrow causing serious injury on the person of Tufan. Evidence has also been adduced on behalf of the prosecution to show that other two persons were also injured by the members of that unlawful assembly. Prosecution has further adduced the evidence to the effect that Tufan was carried to his house which is just in front of the place of occurrence and thereafter he was taken to the hospital where he expired. It is the prosecution case that while Tufan was brought to the house/room of the complainant, then he allegedly reported his mother about the names of the persons who actually caused the injury. It is the prosecution case that while Tufan was brought to the house/room of the complainant, then he allegedly reported his mother about the names of the persons who actually caused the injury. It may be pointed out here that regarding this alleged statement, made by Tufan, his mother has come forward to depose in favour of the prosecution. ( 24 ) I have already pointed out that there are eye witnesses who clearly and categorically stated about the alleged involvement of the accused persons and the commission of the offence. The mother of the victim also stated in her evidence without any hesitation about the names of the culprits who caused the injury to her son. Of course she has claimed that she heard this from Tufan when he was alive. ( 25 ) BUT it appears from the judgment of the learned Trial Judge that in fact he did not consider the evidence of the eye witnesses as well as the mother of the victim in its proper perspective. Instead of discussing the evidence of those persons regarding their acceptability, learned Judge proceeded with an approach to find fault in the prosecution case regarding the fixing of the place of occurrence. The approach of the learned Judge appears to be absolutely improper and there is reason to believe that the. learned Judge was determined not to consider the evidence of the eye witnesses and instead of that the learned judge was bent upon to find fault in the prosecution case regarding the fixing of the place of occurrence. Undoubtedly the place of occurrence is an important fact which the prosecution must prove. But so far as the present case is concerned, it appears that the material witnesses clearly described that the place of occurrence was in front of the house of the defacto complainant. But the learned Judge preferred to disbelieve this claim of the witnesses on the ground that no blood was found by the I. O. in the alleged place of occurrence and that no brickbat could be recovered by the I. O. from the place of occurrence although the witnesses stated about the same in their depositions. But the learned Judge preferred to disbelieve this claim of the witnesses on the ground that no blood was found by the I. O. in the alleged place of occurrence and that no brickbat could be recovered by the I. O. from the place of occurrence although the witnesses stated about the same in their depositions. Simply because the I. O. did not find any sign of blood in the place of occurrence or that the I. O. could not seize any brickbat from the said place that does not mean that the overwhelming evidence of the eye witnesses should be disbelieved due to the alleged lapse on the part of the Investigating Officer. If it is allowed to be permitted, then it will give rise to a dangerous situation when a prosecution case will solely depend at the whims of the I. O. In my considered opinion the learned Trial Judge was not at all justified in not considering the evidence of the eye witnesses and in disbelieving their statements regarding the place of occurrence on the ground of the laches on the part of the investigating Officer. The approach of the learned Judge in this respect, cannot but be said to be perverse in nature and I have got no hesitation to hold that the same has caused miscarriage of justice. ( 26 ) IT further appears that the learned Judge observed that there is room for doubt regarding the claim of the prosecution that the alleged incident took place in front of the house of the defacto complainant. According to the learned Trial Judge since there was a counter case filed by some of the accused persons over the alleged incident and since it was allegedly stated therein that the incident took place elsewhere, so the prosecution claim in respect of the place of occurrence must be disbelieved. The reasoning, as given by the learned trial Judge in this respect appears to be peculiar in nature and I have got no hesitation to hold that this finding of the learned Trial Judge is nothing but unfair and is the result of non-application of mind. The reasoning, as given by the learned trial Judge in this respect appears to be peculiar in nature and I have got no hesitation to hold that this finding of the learned Trial Judge is nothing but unfair and is the result of non-application of mind. Even if for argument sake we accept that a counter case was filed by the accused persons, then also it cannot be said that non-mentioning of this counter case by the Investigating agency in the rase diary should be a ground for disbelieving the prosecution case so far as present case is concerned. Possibly by pointing to the counter case, the learned Trial Judge was of the opinion that the incident did not lake place in the manner, as claimed by the prosecution and that there was fighting in between the two parties resulting in the death of Tufan Nandi. But it may be pointed out that the accused persons did not adduce any evidence in support, of their claim. It is the admitted position that the accused persons by filing this counter case have practically admitted that there was an incident involving the parties. Whether in that incident, actually the accused persons were assaulted and injured and as a result of that there was a fight in between the parties resulting in the death of Tufan, is to be proved by adducing evidence. Onus lies on the accused persons in this respect to establish this fact. But it appears that the accused persons did not adduce any evidence to discharge this onus. I fail to understand as to how the learned Judge could give so much importance about the filing of the counter case in disbelieving the prosecution claim, so far as present case is concerned. This approach of the learned Judge certainly is improper and illegal and I have got no hesitation to hold that it has certainly caused miscarriage of justice. ( 27 ) LEARNED Trial Judge further observed that the doctor has said that there was possibility of blood coming out from the injury of Tufan, when he was carried to the hospital and as such the Duli and Kantha by which Tufan was carried to the hospital must, have been besmeared with blood and those two things would have been the best evidence for proving the. prosecution ease. prosecution ease. But it appears from the evidence that there is doubt regarding the claim as to whether blood came out from the injury of Tufan or not. In this respect there are clear dispute in respect of the ocular version with that of the medical evidence. Learned Judge did not consider this aspect, as to on which version the Court should place its reliance. While accepting the opinion of the doctor, learned Judge disbelieved the evidence of the eye witnesses in this respect without assigning any reason whatsoever. Even if for argument sake we consider that blood came from the injury of Tufan and fell on the Duli and the kantha then also such non seizure of those things cannot be of such importance, so that the entire prosecution case should be disbelieved without appreciating the evidence of the eye witnesses. It is the settled principle of law that due to the laches on the part of the I. O. prosecution case should not suffer and only because of this laches on the part of the I. O. the prosecution case should not be disbelieved if there are other convincing materials to come to a conclusion in support of the prosecution case. This approach of the learned judge also, in my considered opinion, has caused failure of justice. ( 28 ) LEARNED Trial Judge, it appears from his judgment, also was pleased to disbelieve the prosecution case on the ground of non-examination of the wife of the deceased. The approach of the learned Trial Judge in this respect appears to be something peculiar in nature. No where it has been stated that the wife of the deceased witnessed the incident, tf she is not an eye witness, then the prosecution is not at all duty bound to examine this lady although she is the wife of the deceased. It is the settled principle that in a criminal trial quantity of the witness does not matter. Court should consider the quality of the witness. So far as the present case is concerned, it cannot be said that the wife of the deceased Tufan is a material witness for the purpose of this case and the prosecution is guilty of withholding such witness. Court should consider the quality of the witness. So far as the present case is concerned, it cannot be said that the wife of the deceased Tufan is a material witness for the purpose of this case and the prosecution is guilty of withholding such witness. The approach of the learned Judge cannot be supported at all and I have got no hesitation to hold that this misconception of the learned Judge has also caused failure of justice. ( 29 ) LASTLY, it appears that the learned Judge disbelieved the claim of the mother of the deceased that Tufan before his death informed her about the names of the actual culprits. In disbelieving this claim of the mother of the deceased, learned Trial Judge was of the opinion that this important fact did not find place in the FIR. But it is the settled principle that all the facts, connecting with the actual incident, need not be stated in the FIR in detail. Only the relevant facts are to be mentioned. We must not forget the actual scenario when the incident took place. Grave situation was prevailing there and everybody was busy in attending the injured persons including Tufan. During such a situation the dcfacto complainant lodged the FIR narrating the incident as far as practicable. It is needless to mention that it is not necessary that the minute details of the incident including the alleged statement made by Tufan before his mother must be stated in the FIR. Law in this respect is well settled that all these things need not be mentioned in the FIR. Of course, it is always open for the learned Trial Judge to consider whether the statement made by the mother of the deceased in this respect, can be accepted or not. That is a different proposition. But simply because this alleged statement of the deceased before his mother did not find place in the FIR that cannot be a ground for disbelieving the entire prosecution case without discussing the statements, as made by the eye witnesses, so far as this case is concerned. There cannot be any doubt that the learned Judge is duty bound to discuss the statements made by the eye witnesses and to consider whether those statements are believable or not. There cannot be any doubt that the learned Judge is duty bound to discuss the statements made by the eye witnesses and to consider whether those statements are believable or not. But I have got no hesitation to say that instead of doing that, the learned Judge searched out the defects in the prosecution case in fixing the place of occurrence or in not examining the wife, of the deceased as a witness to mention on a few. Undoubtedly, the approach and the manner of consideration of the evidence, as done by the learned Trial Judge, appears to be absolutely unsatisfactory and improper and I have got no hesitation to hold that the learned Trial Judge failed to consider the statements of the eye witnesses properly and as such it must be held that it is a case of non-appreciation of material evidence resulting in the failure of justice. ( 30 ) THEREFORE, from my above discussion, I am of opinion that so far as the present case is concerned, there cannot be any doubt that it is a case of non-application of mind on the part of the Court below. He has ignored the probative value of the FIR and the individual testimony of the eye witnesses has not been discussed and the testimony in respect of actual incident has been totally ignored, Due to all these things it necessarily follows that the learned trial Judge did not consider the material evidence at all and those have been overlooked. The entire judgment of the learned Trial Judge is full of inconsistencies and the same consists of faulty reasoning and lack of judicial approach. Accepted cannons for appreciating the evidence have been thrown to the wind. The conclusions, as arrived at by the learned Trial Judge, are without proper consideration of the statements, as made by the vital witnesses in connection with the case. ( 31 ) UNDER such circumstances, I have got no hesitation to say that the view expressed by the Court below has resulted in grave miscarriage of justice, so far as the present case is concerned and I think that under such exceptional circumstances there should be an order of re-trial of the accused persons before the Court below. ( 32 ) IN the result, the revisional application succeeds on contest. ( 32 ) IN the result, the revisional application succeeds on contest. The order of acquittal passed by the learned Additional Sessions Judge, 1 st Court, midnapore in Sessions Trial No. 42/november, 1996 is set aside. The matter is'sent back on remand to the learned Court below for re-trial of the accused persons. It is made very clear that while proceeding with the re-trial of the accused persons, the learned Judge should proceed independently without being influenced, in any manner, by the observations that have been made by this Court in connection with this revisional application and he is to pass the judgment after considering the entire evidence on record properly and in accordance with law. ( 33 ) SEND a copy of this judgment along with L. C. R. to the Court below at once for information and for taking necessary action.