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2009 DIGILAW 775 (GAU)

Sayeda Bibijan Begum v. Md. Kismat Ali

2009-11-06

HRISHIKESH ROY, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. This revision petition is directed against the judgment and order dated 6-12-2004 passed by the learned Addl. Sessions Judge (ad-hoc), Kamrup in Sessions Case No. 179(K)/2004 acquitting the respondents/accused from the charge under Section 302 IPC. 2. The prosecution case in short is that P.W. 2, Bibijan Begum (mother of the deceased Ajijur Rahman) lodged a FIR in the Hajo Police Station on 22-12-99 at about 5 p.m. stating that about 4/5 days prior to the incident there was an altercation between her son Ajijur Rahman and the accused persons named in the FIR over a boundary dispute. According to the first informant, at about 9 a.m. of the same day i.e. 22-12-99 when her son was coming home from the village chowk and had reached the frontside of the house of one Safique Ali, the accused/respondents, namely, Pahbar Ali, Md. Kiamat Ali, Md. Sana Ali. Md. Madul Ali, Md. Mohibut Ali and Md. Mojibur Ali accosted him and after tying his hands and feet took him to the house of accused/respondent Kismat Ali. Thereafter, according to the first informant, the accused persons bolted the doors and windows of the house and attacked Ajijur Rahman with different weapons causing grievous injuries on his person. According to the first informant, the accused/respondents hit Ajijur Rahman on his legs and hands with iron rod and sharp dagger and, in the process, had broken the bones of the victim and had also made him blind by pouring acid in his eyes. Thereafter, according to the first informant, the accused persons had left him outside the house of Kismat Ali, whereafter, the members of the household removed Ajijur Rahman to the hospital where he succumbed to his injuries. 3. On the basis of the aforesaid FIR filed, Hajo P.S. Case No. 221/00 under Section341/342/326/327/34 IPC was registered and investigated into. Upon the death of the victim Section302 IPC was added to the case. On completion of the investigation the accused/respondents were chargesheeted, inter alia, under Section 302 IPC and the case was committed for trial to the Court of Sessions at Kamrup. In the Court of Sessions, charge under Section 341/342/302/34 IPC was framed against accused/respondents to which they pleaded not guilty and claimed to be tried. In the trial held, twelve witnesses were examined by the prosecution. The defence did not adduce any evidence. In the Court of Sessions, charge under Section 341/342/302/34 IPC was framed against accused/respondents to which they pleaded not guilty and claimed to be tried. In the trial held, twelve witnesses were examined by the prosecution. The defence did not adduce any evidence. At the conclusion of the trial, by the impugned judgment and order dated 6-12-2004 the learned trial Court had thought it proper to acquit the accused/respondents of the charge levelled. Aggrieved, the first informant, who is the mother of the deceased, has instituted the present revision petition. 4. We have heard Sri A.B. Choudhury, learned senior counsel for the petitioner and Sri S.R. Bhattacharjee, learned senior counsel appearing for the accused/respondents. The Court had also thought it proper to receive assistance from Sri Z. Kamar, learned Public Prosecutor of the State. 5. At the very outset, it must be mentioned that out of twelve witnesses examined by the prosecution only three witnesses i.e. P.W.2 (first informant and the mother of the deceased); P.W.4, (a neighbour); and P.W. 11 (the Investigating Officer of the case) would be material, inasmuch as, the other witnesses who had deposed about the incident had done so on the basis of the information furnished to them after the incident. The evidence of the doctor (P.W. 10) has also to be taken into account by the Court at the time of determination of the issues arising in the revision petition. 6. The present would also be an appropriate state for putting on record the fact that the sole basis for acquittal of the accused/respondents, as made by the learned trial Court, is that P.W.2 and P.W.4 who had described the incident, at least about the beginning of the assault of the deceased by the accused, had deposed with regard to the incident for the first time in the Court and had not been examined by the Investigating Officer while investigating the case. Relying on a decision of the Apex Court in Ram Lakhan Singh and Ors. v. The State of Uttar Pradesh reported in AIR 1977 SC 1936 , the learned trial Court came to the conclusion that on the ratio of the aforesaid judgment the evidence of P.W. 2 and P.W. 4 cannot be acted upon for determination of the culpability of the accused/respondents. v. The State of Uttar Pradesh reported in AIR 1977 SC 1936 , the learned trial Court came to the conclusion that on the ratio of the aforesaid judgment the evidence of P.W. 2 and P.W. 4 cannot be acted upon for determination of the culpability of the accused/respondents. On the said finding, the learned trial Court thought it unnecessary to delve into the evidence adduced by the aforesaid two witnesses for the purpose of determination of the culpability of the accused. 7. Sri A.B. Choudhury, learned senior counsel for the revision petitioner has submitted that the trial Court committed an apparent error in understanding the ratio of the judgment of the Apex Court in Ram Lakhan Singh (supra) in the manner indicated and, on that basis, in not proceeding to appreciate or consider the evidence of P.W.2 and P.W. 4. The learned Counsel has submitted that a grave miscarriage of justice in a heinous offence of murder has been occasioned by the apparently wrong approach adopted by the trial Court and, therefore, the present would be a fit case for exercise of the revisional power, constricted as it may be, to interfere with the acquittal of the accused/respondents. 8. Controverting the submissions advanced by Sri Choudhury, Sri S.R. Bhattapharjee, learned Counsel for the accused/respondents has placed a decision of the apex Court in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr. reported in AIR 1962 SC 1788 (Para 7) to indicate the parameters of exercising the revisional jurisdiction of this Court under Section 401 of the Code of Criminal Procedure. A later judgment of the Apex Court in Johar and Ors. v. Mangal Prasad and Anr. reported in has also been relied upon by Sri Bhattacharjee and reference has been made to the precedents available in the said judgment to contend that even if this Court is to take the view that the learned trial Court has gone wrong or has committed mistake on application of the principle of law, unless the decision of the trial Court can be termed as perverse, interference under Section 401 Cr.P.C. will not be justified. Placing judgment of the learned trial Court, it is further submitted by Sri Bhattacharjee that in the present case, the evidence of P.W. 2 and P.W. 4 has been duly considered by the trial Court and it would not be correct to say that the evidence of the said witnesses had been discarded merely on application of the law laid down by the Apex Court in Ram Lakhan Singh (supra). 9. We have perused the records in original which have been called for by this Court at the time of admission of the revision petition. The said records clearly indicate that P.W. 2 was the first informant who had filed the FIR in the Hajo Police Station a few hours after the incident. The earliest version of the occurrence in writing, as unfolded by P.W. 2, therefore, was available on record. That apart, the conclusion of the learned trial Court that P.W. 4 was not examined in the course of investigation is also not borne out from the records, perusal of which has on the contrary revealed that the statement of P.W. 4 recorded under Section 161 Cr.P.C. is available therein. That apart, the learned trial Court also held that both P.W. 2 and P.W. 4 were witnesses who were not named in the chargesheet. A perusal of the record indicates that both P.W. 2 and P.W. 4 were cited/listed by the prosecution as witnesses who will prove the case against the accused/respondents. The aforesaid findings of fact as recorded by the learned trial Court in the order dated 6-12-2004, therefore, are plainly incorrect. The impact of such error on the judgment of acquittal is an aspect to which the Court will turn to at the appropriate stage. For the time being, the Court considers it necessary to turn to the decision of the Apex Court in Ram Lakhan Singh (supra) to ascertain the true and correct ratio of the said judgment in order to determine whether the learned trial Court had correctly applied the ratio of the said decision to the facts of the present case. 10. In Ram Lakhan Singh (supra) the offence alleged against the accused therein was one of dacoity with murder. 10. In Ram Lakhan Singh (supra) the offence alleged against the accused therein was one of dacoity with murder. The incident occurred at about 9 p.m. when the inmates were having their meal in the verandah of the house and soon thereafter a large number of people (around 100) had gathered at the place of occurrence. The prosecution in support of its case had examined the three inmates of the house, an inimical neighbour and one out of the 100 persons present at the place of occurrence. The said person was neither examined by the police in the course of investigation nor was he cited as a witness in the chargesheet. The learned trial Court as well as the High Court found difficulty in accepting the evidence of the first four witnesses. However, relying on the evidence tendered by the last witness (not examined by the police and not cited as a witness in the chargesheet) it was thought fit to hold that the evidence of the said witness lends credence to the evidence of the first four witnesses. It is in the above facts that the observation of the Apex Court with regard to the reliability of such evidence came to be recorded in para 37 of the judgment. 11. The provisions of the Indian Evidence Act do not make the evidence tendered by a person not examined by the police inadmissible in law. However, in every case the question would be the extent of reliability of such witness, namely, can the evidence of such a witness be the sole basis of conviction. This is, to our minds, the real question that was in issue in Ram Lakhan Singh (supra) and in the facts of that case, the answer of the Apex Court was in the negative. While doing so, the Apex Court also reflected on the possibility of prejudice to the accused who would not be in a position to cross-examine such a witness with reference to any previous statement in writing. 12. In the present case, the learned trial Court perceived the decision of the Apex Court in Ram Lakhan Singh (supra) to be debarring any consideration of the evidence tendered by a person not examined by the police. 12. In the present case, the learned trial Court perceived the decision of the Apex Court in Ram Lakhan Singh (supra) to be debarring any consideration of the evidence tendered by a person not examined by the police. The submission of the learned Counsel for the accused that the learned trial Court did consider the evidence of P.W. 2 and P.W. 4 can be understood by distinguishing between a narration of the evidence as made in the present case and appreciation thereof, as required by law. The evidence of P.W. 2 and P.W. 4, as the impugned judgment reveals, was not at all considered or appreciated in the present case on the ground that such appreciation was not permissible in view of the decision of the Apex Court in Ram Lakhan Singh (supra). 13. In the present case, the records of the case, as already indicated by us, indicate that P.W.4 was interrogated by the police and he was also cited as a witness in the chargesheet. P.W. 2 is the person who had filed the FIR and was also cited as a witness. In the aforesaid facts, which is revealed by the records, the question of prejudice to the accused during cross-examination that had been caused in Ram Lakhan Singh (supra), could not have been possibly caused in the present case. The basis of the satisfaction that such prejudice of the accused had been caused in the present case was, therefore, recorded by the learned trial Court on erroneous findings of fact. 14. The above discussions make it amply clear that not only the proposition of the law relied upon does not logically flow from the decision in Ram Lakhan Singh (supra), the application of the said principle of law had been made by the learned trial Court on an incorrect determination of facts which errors are apparent on the face of the record. At this stage, we may point out that the Apex Court in Karnel Singh v. State of M.P. as well as in a recent decision in Himanshu Singh Sabharwal v. State of M.P. and Ors. AIR 2008 SC 1943 , has taken the view that the fate of prosecution cannot be left to the discretion of the prosecuting agency alone and the Courts must play a more dynamic role in the judicial process of determination of guilt. 15. AIR 2008 SC 1943 , has taken the view that the fate of prosecution cannot be left to the discretion of the prosecuting agency alone and the Courts must play a more dynamic role in the judicial process of determination of guilt. 15. We have already held in a preceding part of this order that the learned trial Court on application of the principle of law laid down in Ram Lakhan Singh (supra) had virtually discarded the evidence of P.W. 2, P.W. 4 and P.W. 11. While P.W. 2 and P.W. 4 had given a vivid description of the manner in which the accused had accosted the deceased and had taken him to the house of one of accused i.e. Kismat Ali and had started assaulting him, P.W. 11, the Investigating Officer, had deposed that on going to the place of occurrence after receipt of information and entry of the same in the General Diary of the police station, he had found the dead body of Ajijur Rahman in the courtyard of accused Kismat Ali. These are materials available on record which have been discarded by the learned trial Court on, what we have thought it fit to hold, a wrong application of the principle of law laid down in Ram Lakhan Singh (supra) and upon incorrect determination of the vital facts. The extent to which the aforesaid evidence tendered by P.W. 2, P.W. 4 and P.W. 11 could be considered to have implicated the accused in the light of the evidence of the doctor (P.W. 10); whether the said evidence built up circumstances prejudicial to the accused and what conclusion the said circumstances would justify are matters that were not considered by the learned trial Court at all. 16. We, therefore, have no hesitation in holding that the learned trial Court had gone grossly wrong in acquitting the accused/respondents of a heinous offence of murder, thereby, occasioning a serious miscarriage of justice. 17. We, therefore, allow this revision petition; set aside the order of acquittal dated 6-12-2004 and remand the mater to the learned trial Court for fresh disposal on the basis of the evidence already on record. 17. We, therefore, allow this revision petition; set aside the order of acquittal dated 6-12-2004 and remand the mater to the learned trial Court for fresh disposal on the basis of the evidence already on record. As the occurrence took place, in the year 1999 and over a decade has elapsed, the trial Court will make all endeavour to dispose of the matter in accordance with law and after hearing the accused/respondents expeditiously and, in any case, within a period of three months from the date of receipt of the records. 18. Office to transit the records to the learned trial Court forthwith. Petition allowed