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2007 DIGILAW 759 (GAU)

Saved Ahmed Laskar v. State of Assam & Ors.

2007-11-21

AFTAB H.SAIKIA, P.K.MUSAHARY

body2007
P.K. Musahari, J. - Heard Mr. H.R.A. Choudhury, learned Senior Counsel, assisted by Mr. I.A. Hazarika, for the petitioner, Mr. K.C. Mahanta, learned Additional Public Prosecutor, Assam and Mr. A.B. Choudhury, learned Senior Counsel assisted by Mr. M. Hussain for the opposite parties No. 2 to 17. 2. This revision petition is directed against the Judgment and Order dated 04.01.2006 passed by learned Sessions Judge, Hailakandi in Sessions Case No. 25/2002 under Section 147/148,149/448,149/323,149/302,149/325 of the IPC whereby the accused/opposite parties No. 2 to 17 were acquitted of offences charged against them. 3. The prosecution case in brief is that one Sri Ansar Ali was a resident of Dali Dahar Grant, where he had a dwelling house and cultivable land. On 30.10.1997 at about 6 A.M. at the instigation of Babul Ali, the accused/opposite parties No. 2 to 17 trespassed the house campus of Ansar Ali and killed Kamrul Huda and also caused injuries upon the persons of Ansar Ali, Nurul Huda, Ali Ahmed, Fhakar Uddin and Rafiq Uddin by voluntarily assaulting them by means of dangerous weapons. The FIR was lodged by Sayed Ahmed Laskar, PW 1, and a crime was registered being Algapur Police Station Case No. 172/97 and the Police investigated the same. In the course of investigation Police held inquest on the dead body of the deceased and got the injured persons medically treated. The post mortem was also conducted on the dead body of the deceased Kamrul Huda. On completion of the investigation, Police submitted charge sheet against Anam Uddin and the accused/opposite parties No. 2 to 17 under Section 147/148/149/325/323/302 IPC. The case was committed to the Court of Sessions Judge, Hailakandi, as the offences are exclusively triable by the Sessions Court. The charges having been read over and explained the accused persons pleaded not guilty. The prosecution examined as many as nine witnesses including the Investigating Officer and medical officer and the statements of the accused/opposite parties were recorded. The learned trial Court passed the impugned Judgment and Order convicting accused Anam Uddin and sentencing him imprisonment for the period he has already undergone and also sentencing him to pay a fine of Rs. 15,000/- (Rupees fifteen thousand) only, in default rigorous imprisonment for six months while the other co-accused persons namely the opposite parties No. 2 to 17 were acquitted. 15,000/- (Rupees fifteen thousand) only, in default rigorous imprisonment for six months while the other co-accused persons namely the opposite parties No. 2 to 17 were acquitted. The acquittal of co-accused/opposite parties No. 2 to 17, is now under challenge in the present revision petition. 4. Mr. H.R.A. Choudhury, learned Senior Counsel for the petitioner/informant has called upon this Court to set aside the impugned Judgment and Order of acquittal by exercising the power of revision under Section 401 of the CrPC and to impose an order of conviction and sentence on the opposite parties No. 2 to 17. He has submitted that against an order of acquittal, against which the State Government has a right of appeal but no such appeal is preferred by the Govt., a private complainant like the present petitioner as informant, can approach the High Court under Section 401 and the High Court, in exercising its revisional power, can set aside the acquittal order, even by re-appreciating the evidence on record. 5. There is no difficulty for us to hold that on an application made by an informant as private party, this Court can exercise the revisional power. But there is a real difficulty for this Court to set aside an order of acquittal passed by the trial Court. There is also difficulty as to how and in which cases the High Court should exercise the power of revision invoking Section 401 of the CrPC. 6. The trial Court in this case, as submitted by Mr. H.R.A. Choudhury, failed to appreciate the evidence on record and passed the impugned Judgment and Order acquitting the opposite parties No. 2 to 17 and, therefore, it is incumbent upon this Court to set aside the same to prevent gross miscarriage of justice, no matter that there is a statutory prohibition under Section 401 (3) CrPC on converting a finding of acquittal into one of conviction. 7. We ponder; can this Court really do so and if so, how and in which cases? What about this case? Mr. Choudhury, learned Senior Counsel for the petitioner, to buttress his submission, cited the following cases: (i) AIR 1998 SC 990 : Kishan Swaroop Vs. State of NCT of Delhi. (ii) AIR 1973 SC 2145 : Akalu Ahir Vs. Ramdeo Ram (iii) AIR 2004 SC 4412 : State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand. What about this case? Mr. Choudhury, learned Senior Counsel for the petitioner, to buttress his submission, cited the following cases: (i) AIR 1998 SC 990 : Kishan Swaroop Vs. State of NCT of Delhi. (ii) AIR 1973 SC 2145 : Akalu Ahir Vs. Ramdeo Ram (iii) AIR 2004 SC 4412 : State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand. (iv) 2003 (3) GLT216, Nilon Chandra & Ors. Vs. Shiva Prasad (v) 1995 (2) GLT 423: Sena Ram Das Vs. Kashiram Das The above cases are on the points pertaining to revisional power of the High Court. 8. The Apex Court in a Catena of cases including the aforesaid ones, has already settled the law and the principle on which the revisional Court can set aside a Judgment and Order of acquittal passed in favour of the accused. At the same time the Apex Court has also laid certain limitation on the High Court for exercising the jurisdiction and setting aside the finding of acquittal in revision. It is held that the High Court should exercise this power only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest defect in the procedure on a point of law resulting in flagrant miscarriage of justice. 9. The Hon'ble Supreme Court in the case of Chinnaswamy Vs. State of Andhra Pradesh, reported in AIR 1962 SC 1788 observed that it is not possible to lay down the criteria for determining the exceptional case which would cover all contingencies. However, in the said case some illustration of exceptional cases were given in which the High Court can interfere with the findings of acquittal in revision. Extracted from relevant portion of para 7 of the said case, it would stand as follows: (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 evidences 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 in admissible; (iv) Where the material evidence has been overlooked by the trial Court and (v) Where the acquittal is passed on compounding of the offences which is invalid under the law. 10. 10. Going through the present revision petition, it is not found that the petitioner ever questioned the jurisdiction of the trial Court to try the cases or alleged that the trial Court has wrongly shut out the evidence which the prosecution wished to produce during the trial or the trial Court wrongly held the evidence which the petitioner wished to adduce as inadmissible or the trial Court overlooked the material evidence on record in passing the impugned Judgment and Order acquitting the accused/opposite parties. Nor has it been alleged at any point of time that the acquittal order of the trial Court is passed on compounding of offence not permitted by law. 11. Yet another aspect that is required to be borne in mind is that the Apex Court in a number of cases held that the revisional jurisdiction when it is invoked against the order of acquittal by a private complainant, is not to be lightly exercised and it could be exercised only in exceptional cases as to correct a manifest illegality or to prevent gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial Court has appreciated the evidence on record. This was held originally in a classic Judgment and Order passed by a three Judge Bench of the Hon'ble Supreme Court as far back as in 1951 in the case of D. Stephens Vs. Nosibolla, reported in AIR 1951 SC 196 which is being followed as a golden rule in subsequent cases. 12. Following the case of D. Stephen (supra), the Hon'ble Supreme Court further held in the case of K. Chinnaswamy (supra) that the High Court would be justified to interfere where material evidence is overlooked by the trial Court. It was further held that in cases where the High Court has interfered with the Judgment of acquittal the only course open to it is to set aside the acquittal and send the cases back to the trial Court for re-trial. 13. This being the position, this Court is to examine whether the trial Court has overlooked any material evidence on record in passing the impugned acquittal order. Going through the revision petition we find no averment to that effect except some vague statement in para 6 and ground (D) of the petition, which are quoted hereunder: "6. 13. This being the position, this Court is to examine whether the trial Court has overlooked any material evidence on record in passing the impugned acquittal order. Going through the revision petition we find no averment to that effect except some vague statement in para 6 and ground (D) of the petition, which are quoted hereunder: "6. That at the conclusion of trial the learned trial Court by overlooking the evidence on record as well as facts and circumstances of the cases, acquitted the opposite parties No. 2 to 17 thereby causing a serious miscarriage of justice to the informant". "Ground (D).... for that the medical officers PWs 9. 7 and 6 have also corroborated the injuries sustained by the victims and the deceased. The learned Court held that (Pg 6 of Judgment) such injuries were the outcome of assaults upon these persons by somebody." But the learned trial Court overlooked at its finding and held that "Pg 20 of the Judgment" both parties were involved in a free-fight but no dangerous weapon such as sharp weapon was used in the "free-fighting" although the deceased was billed P.O." 14. This, in our considered opinion, is a finding of fact by the trial Court to the effect that both the parties were involved in a free-fighting and no dangerous weapon, such as sharp weapon was used in such free-fighting. It has not referred to or atleast disclosed as to which are the material evidence on record that has been overlooked by the trial Court in passing the impugned order of acquittal. In absence of such disclosure or specific allegation of overlooking a particular material evidence, this Court, we feel, would not be justified to interfere with the impugned order of acquittal. 15. Referring to some evidence on record, the learned Counsel for the petitioner made an endeavour to make out the case that the Court below committed error in appreciating the evidence and submitted that this Court can re-appreciate the evidence and set aside the impugned acquittal order. We are afraid that this Court sitting in revision is authorized to do so in view of the settled position of law that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. 16. In this context it would be appropriate to refer to another classic case of Logendra Nath Jha Vs. 16. In this context it would be appropriate to refer to another classic case of Logendra Nath Jha Vs. Sri Polailal Biswas, as reported in AIR 1951 SC 316 . That was a case where the High Court re-apprised the evidence in the case and disagreed with the trial Court's findings of fact on the ground that they were perversed and displayed a lack of true perspective. In para 7 of the said case it was held as follows: "(7) It will be seen from the judgment summarized above that the learned Judge in the High Court re-apprised the evidence in the case and disagreed with the Session Judge's findings of fact on the ground that they were perversed and displayed a lack of true perspective. He went further and, by way of "expressing in very clear terms as to how perverse the judgment of the Court below is", he indicated that the discrepancies in the prosecution evidence and the circumstances of the case which led the Sessions Judge to discredit the prosecution story afforded no justifiable ground for the conclusion that the prosecution failed to establish their case. We are of opinion that the learned Judge in the High Court did not properly appreciate the scope of inquiry in revision against an order of acquittal. Though Sub-S(1) of S. 439 authorizes the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by S. 423, Sub-S (4) specifically excludes the power to "convert a finding of acquittal into one of conviction". This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law, re-appraise the evidence & reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial Court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of evidence in the case.........". 17. This Court in the case of Senaram Das Vs. By merely characterizing the judgment of the trial Court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of evidence in the case.........". 17. This Court in the case of Senaram Das Vs. Kashiram Das (supra) held that in appropriate case Revisional Court may exercise power available to a Court of appeal and also held that in extreme cases revisional Court can set aside the finding of facts when they are passed on miswriting or non-writing of evidence or mis-appreciating of evidence. In the present case the petitioner has not brought any allegation of any such miswriting, non-writing or mis appreciation of evidence, not to speak of making out any case to that effect and under such circumstances this Court is not inclined to hold that this Court should re-apprise, re-appreciate or review the evidence on record like a Court of appeal. 18. Fortunately and with all fairness, Mr. H.R.A. Choudhury, learned Senior Counsel has not prayed for remanding the case for re­trial by the Sessions Court. This Court is not in any way authorised to pass such order because the law has been settled by now that the revisional Court can set aside an order of acquittal and remit the case for re-trial only where the trial Court passed the acquittal order overlooking the material evidence in the case. This was held so in the case of Ram Briksh Singh Vs. Ambika Yadav, reported in (2004) 7 SCC 665 . The case of Chinnaswamy (supra) was also referred to in the said case to take note of the caution that the High Court does not convert a finding of acquittal into one of conviction by any direct method of ordering re-trial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory apprehension. 19. Considering all aspects of the matter, keeping in view the parameters set by the Apex Court for exercising revisional jurisdiction and the dictum held out in various cases referred to above, we hold that this Court has no jurisdiction to re-appreciate/re-apprise the evidence on record to set aside the impugned Judgment and order acquitting the accused/opposite parties No. 2 to 17 or to remit the case to the trial Court for re-trial, that too after a lapse of a decade. 20. 20. The impugned Judgment and Order acquitting the accused/opposite parties No. 2 to 17 is upheld and affirmed and consequently this revision petition stands dismissed. 21. Send down the record.