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2011 DIGILAW 74 (GAU)

Nishi Kanta Das v. State of Tripura & Ors.

2011-01-31

U.B.SAHA

body2011
U.B. Saha, J. - The petitioner in the instant revision petition questioned the judgment dated 2.9.2002 passed by the learned Additional Sessions Judge (Court No.2), West Tripura, Agartala in ST 34 (WT/A)/02 whereby the learned Addl. Sessions Judge acquitted the accused persons, respondents No.2 to 13 in this petition from the charges leveled against them under Section 148 of the Indian Penal Code (for short 'IPC') and under Section 436 read with Section 149 of the IPC. 2. Heard Mr. S.Dutta, learned counsel for the petitioner. Also heard Mr. D.Sarkar, learned Public Prosecutor appearing for the respondent State and Mr. S.Chakraborty, learned counsel for the respondents No.2 to 13. 3. The chequered history of the case shows that the petitioner and the accused persons (respondents No.2 to 13) belong to rival political parties. P. W.1. Shri Nishi Kanta Das as informant lodged a written complaint to the Officer-in-Charge of Khowai Police Station, West Tripura on 4.3.1998 alleging that on that date at about 2.15 p.m. (noon) the accused persons (respondents No.2 to 13) came to his house and attacked his house and set fire to his dwelling house, as a result, his dwelling house, kitchen and also a dwel ling house of his son along with articles and necessary documents of his house totally gutted and as such he sustained a loss of Rs.90,000/-. On completion of the investigation, the investigating agency submitted charge sheet against the respondents No.2 to 13 under Sections 148/149/436 of the IPC. The learned Addl. Sessions Judge, Khowai upon hearing the parties and considering the charge sheet filed by the police framed charges under Section 148 IPC simplicitor and under Section 436 read with Section 149 IPC against all the accused persons. The prosecution examined ten witness including the official witnesses to prove its case and defence also examined two witnesses who on the relevant date were working in the house of the informant as labourers. After recording the evidence of the prosecution and the defence witnesses, the learned Addl. Sessions Judge, Khowai recorded the statement of the accused persons under Section 313 of the Code of Criminal Procedure and thereafter the learned Addl. Sessions Judge considered that if the accused persons were allowed to remain on bail there might be a chance of their absconsion and hence all of them were taken into custody. Sessions Judge, Khowai recorded the statement of the accused persons under Section 313 of the Code of Criminal Procedure and thereafter the learned Addl. Sessions Judge considered that if the accused persons were allowed to remain on bail there might be a chance of their absconsion and hence all of them were taken into custody. Ultimately when the accused persons (respondents No.2 to 13) were in custody they preferred an application before this court for transferring the sessions case from the court of learned Addl. Sessions Judge, Khowai, West Tripura to the court of learned Sessions Judge, West Tripura, Agartala or any other competent court at Agartala. The said application was numbered as Tr.P. (Crl) 2 of 2002 and this court by order dated 1.3.2002 transferred the aforesaid sessions case to the court of learned Sessions Judge, West Tripura, Agartala with a direction to try the case either by the learned Sessions Judge himself or to transfer the same to any other Additional Sessions Judge stationed at Agartala. Accordingly, the case was transferred to Agartala and numbered as ST 34 (WT/A)/02. Thereafter, the learned Sessions Judge, West Tripura transferred the case to the file of learned Addl. Sessions Judge (Court No.2), West Tripura, Agartala for disposal who upon hearing the learned counsel for the parties and considering the evidence on record acquitted all the accused persons, respondents No.2 to 13 herein from the charges levelled against them. Though the accused persons were acquitted, but the State did not prefer any appeal. Being aggrieved by the judgment of the learned Addl. Sessions Judge and the State action, the petitioner filed the present revision petition. 4. Mr. Dutta, learned counsel appearing for the petitioner submits that in a case relating to gutting of a house it is very difficult to get any direct evidence from the nearby locality except the persons whose houses are gutted and the relations thereof. In the instant case also no direct evidence from the locality is available except the witnesses who are inmates or relation of the petitioner. In the instant case also no direct evidence from the locality is available except the witnesses who are inmates or relation of the petitioner. He further urges that the petitioner being a supporter of a rival political party than the party in power his case was not properly investigated and the witnesses were not properly examined by the investigating authority and even after acquittal of the accused persons the State did not prefer any appeal against them as they are the supporters of the political party in power. Therefore, there was no other alternative before the petitioner except to prefer the instant petition. He also submits that the earned trial court failed to appreciate the evidence on record and consequent thereto acquitted the accused respondents though there are some direct evidence against them. He referred the evidence of P. Ws. 1 to 4. 5. On the other hand, Mr. Sarkar, learned Public Prosecutor submits that the State never considers the political colour of the citizen while examining any judgment of the court and even in practical field also. As in the instant case the authority found nothing to be interfered with by the High Court in the judgment of the learned Addl. Sessions Judge, did not prefer any appeal. 6. Mr. Chakraborty defending the case of the accused persons (respondents No.2 to 13) would contend that from the evidence of P. W. 1 informant it would be evident that both the petitioner and the accused persons admittedly belong to rival political parties and the petitioner falsely implicated the respondents No.2 to 13 with the alleged offence. It is also evident from the evidence of DWs who on the relevant day were working in the house of the informant (PW 1) as labourers. He contended that when P. W. 1 himself stated that while the accused persons were approaching towards his house to save his life and the lives of other family members he took shelter in a mud wall hut and bolted the door from inside then how he could identify the accused persons as the assailants. Moreso, this witness in his crossexamination specifically stated that he did not disclose the name of Brajendra Sarkar in the ejahar. He did not state to I/O. that Brajendra Sarkar advised Pradip Dasgupta to set his hut on fire. Moreso, this witness in his crossexamination specifically stated that he did not disclose the name of Brajendra Sarkar in the ejahar. He did not state to I/O. that Brajendra Sarkar advised Pradip Dasgupta to set his hut on fire. He stated to the I/O. that Pinku lighted the match and Arun Debnath set the roof of his hut on fire. Learned counsel contended that the said statement of P. W. 1 is not found in his statement recorded by the I/O. under Section 161 Cr.P.C. and therefore, the learned trial court rightly disbelieve the statement of P. W. 1 as those were his approved version. His further contention is that the best neutral witnesses of the alleged incident were the six labourers of whom three were female and according to PW 1 who at the relevant time were working in his house as labourers. He submits that though in cross-examination P. W.2 Smti Milan Rani Das, wife of P. W. 1 stated that she stated to the I/O. that as per advice of Brajendra Sarkar, Pinku lighted a match stick and Arun set their house on fire, but the said statement is not available in her earlier statement and her statement so far identification of the accused through the open window is concerned cannot be sustained as that was not stated before the I/O. of the case while her statement was recorded under Section 161 Cr.P.C. He also submits that the statement of P. W.3, Shri Krishna Kanta Das that Pinku lighted a match stick and Arun set their hut on fire is also not available in his (P W 3) 161 statement and those being his approved version the learned trial court very rightly disbelieved the same and acquitted the accused persons. Learned counsel submits that in a revision or appeal filed against an order of acquittal the court has to firstly consider the innocence of the accused persons. While reminding the court regarding the golden theory of the criminal jurisprudence Mr. Learned counsel submits that in a revision or appeal filed against an order of acquittal the court has to firstly consider the innocence of the accused persons. While reminding the court regarding the golden theory of the criminal jurisprudence Mr. Chakraborty would contend that the golden theory which runs throughout the cobweb of criminal justice as administered in India is that nine guilty may escape but one innocent should not suffer and at the same time no guilty should be escaped unpunished when the guilt has been proved to hilt and here in the instant case the prosecution failed to establish that the respondents No.2 to 13 are guilty of the alleged offence and, therefore, the question of their punishment does not arise at all. His further contention is that the judgment of acquittal is to be interfered with only when there are compelling and substantial reasons for doing so. If the judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process by the trial court then only the same can be reasonably interfered with. Moreso, when two views are possible then the view which goes in favour of the accused that should be accepted by the court of law. In the instant case according to Mr. Chakraborty the learned trial court rightly acquitted the accused persons as there was no evidence before the court against the respondents No.2 to 13 to record their conviction. He also submits that even if for argument sake it is believed that there were some evidence against the accused person those were not enough for their conviction and moreso PWs adduced those evidence for the first time in the court. 7. While answering to the contention of Mr. Dutta regarding the political rivalry, Mr. Chakraborty would contend that the implication of the accused persons (respondents No.2 to 13) by the informant (P W 1) in his written complaint is nothing but the proof of admitted political rivalry as admittedly both the informant and the respondents No.2 to 13 belong to different political groups. Their tunes are also different and due to different tune the petitioner informant implicated the respondents No.2 to 13 with the alleged offence only to harass them and to malign their dignity in the society. 8. Their tunes are also different and due to different tune the petitioner informant implicated the respondents No.2 to 13 with the alleged offence only to harass them and to malign their dignity in the society. 8. As the learned trial court mainly disbelieving the statement of PWs 1 to 4 and believing the statement of DWs. 1 and 2 acquitted the respondent accused persons, it would be better to reproduce the relevant portion of the statement of those witnesses. Accordingly, the same are reproduced herein under :- P.W. 1 (Shri Nishi Kanta Das) "On 4-3-98 at about 2-30 p.m. when I was about to take my day meal I heard a hue and cry. I came out of the room and found a group of miscreants coming towards my house with a shout. They were shouting that they will convert white into red. While they were approaching towards my house, to save my life and the life of other family members I took shelter in a mud wall hut and bolted the door from inside. The miscreants asked me to open the door and to come out from the room but all refused to do so. They were hurling abusive words towards me and also trying to break the door. But when they failed to break the door Pradip Das sought advice from Brajendra Sarkar what is to be done. Brajendra Sarkar advised him to set the house on fire. Pinku Deb then lighted a matchstick and with the help of said stick Arun Debnath set the roof of the house on fire.........................Brajendra Sarkar, Arun Debnath, Pinku Deb, Pradip Das Gupta, Sachindra Namadas, Tapash Das, Samir Sukladas, Samiran Das, Pradip Sukladas, Ratan Sukladas, Pramir Barman and others took part in the attack of my house. Bimal Sukladas also took part in the attack........" CROSS-EXAMINATION "I verbally informed the police about the threat given by the accused persons..... I did not disclose the name of Brajendra Sarkar in the ejahar. I did not state to I/O. that Brajendra Sarkar advised Pradip Das Gupta to set my hut on fire........" P.W.2 (Smti. Bimal Sukladas also took part in the attack........" CROSS-EXAMINATION "I verbally informed the police about the threat given by the accused persons..... I did not disclose the name of Brajendra Sarkar in the ejahar. I did not state to I/O. that Brajendra Sarkar advised Pradip Das Gupta to set my hut on fire........" P.W.2 (Smti. Milan Rani Das) "On 4-3-98 at about 2-30 p.m. while we were preparing to take our day meal some miscreants being armed with deadly weapon attacked our house........When the in iscreants rushed to our house we with a view to save our life took shelter in the western viti mud wall hut and bolted the door from inside." P.W.3 (Shri Krishna Kanta Das) ".........The incident took place on 4-3-98 at about 2-30 p.m. We were taking preparation for our day meal. At that time the miscreants namely- Pradip Das Gupta, Samiran Deb, Ratan Sukladas, Sachindra Namadas, Brajendra Sarkar, Tapash Sukla Das, Pramir Barman, Samir Sukladas, Pradip Sukladas, Arun Debnath, Pinku Deb, and some other persons attacked our house. To save our life took shelter in the western viti mud wall hut and bolted the door from inside. The accused persons tried to break the door but when they failed to do so Pinku lighted a match-stick and with the help of that matchstick Arun set the roof of our mud wall hut on fire. As a result four huts of our house including a kitchen was completely gutted with all our belongings due to this we incurred a lossofRs.90,000/-." CROSS-EXAMINATION "I have stated to darogababu that Pinku lighted a match stick and Arun set our hut on fire." Attention of the witness was drawn to his previous statement recorded by I/O. but no such statement was found there." P.W.4 (BENU KANTA DAS) ".....On 4-3-98 at about 2.15 p.m. while I was working with my labourers I heard a hue and cry and saw that some miscreants being armed with dao, lathi etc. coming towards the house of my elder brother. Out of the said miscreants I could identify - Brajendra Sarkar, Sachindra Namadas, Pradip Sukladas, Pradip Deb, Pinku Deb, Samiran Deb, Bhola Das, Samiran Sukladas, Bimal Sukladas. Some other miscreants were also there. My elder brother and his family members took shelter in the western viti mud wall hut. 3/4 miscreants gharoud me and commanded not to move. Out of the said miscreants I could identify - Brajendra Sarkar, Sachindra Namadas, Pradip Sukladas, Pradip Deb, Pinku Deb, Samiran Deb, Bhola Das, Samiran Sukladas, Bimal Sukladas. Some other miscreants were also there. My elder brother and his family members took shelter in the western viti mud wall hut. 3/4 miscreants gharoud me and commanded not to move. But they did not commit any harm to me. The miscreants were trying to break the door of the hut but failed to do so. When the miscreants could not open the door Brajendra Sarkar directed the other miscreants to sert the house on fire. Pinku Deb then lighted a match stick and with the said lighted match stick Arun Deb set the hut on fire." CROSS-EXAMINATION "........I have stated to I/O. that Arun and Pinku set the house on fire." Attention of the witness was drawn to his previous statement recorded by I/O. but no such statement was found there. D.W.1 (GOPALCH.SHIL) ".....4/5 years back on 19th Falgoon Wednesday we were working as labourer in the house of Benu Das brother of Nishi Kanta Das. Subhas Shil, Birendraand myself were working there. The house of Nishi Kanta Das is at a distance of 4/5 cubits from our place of work within the same house compound. At about 1.30/2 p.m. when 1 myself and Subhas were on the roof of the house and Birendra on the ground supplying chan grass and bamboos to us at that time we saw smoke over the kitchen of Nishi Kanta Das and simultaneously fire broke out. We then raised alarm with cries and on hearing these inmates of the house of Nishi Kanta Das came out and also people from the surrounding houses. Fire spreaded from the kitchen to one ekchala and thereafter to western viti hut of Nishi Kanta Das. The people of the village brought out the household goods from the affected house and extinguished the fire." D.W.2 (SUBHASCH. SHIL) "4/5 years back in the month of Falgoon one day 1 was working as labourer along with Gopal Shil and Birendra Shil in the house of Benu Das which is the same house compound of Nishi Kanta Das. At about 1.30/2 p.m. fire broke out from the kitchen of Nishi Kanta Das and it spread over one ekchala and one dwelling house of Nishi Kanta Das. At about 1.30/2 p.m. fire broke out from the kitchen of Nishi Kanta Das and it spread over one ekchala and one dwelling house of Nishi Kanta Das. People of the village first 20/25 in number came to rescue and thereafter more people came......." 9. Upon going through the impugned judgment of the learned trial court and considering the evidence on record it appears that the learned trial court after taking note of the evidence of the witnesses and considering the facts and circumstances involved therein rightly acquitted the accused persons from the charges levelled against them. It appears that the informant (P W 1) though in his complaint stated regarding the political rivalry, but ultimately when he adduced evidence before the learned trial court nowhere definitely stated regarding the political rivalry and not only that PWs 2 to 4 also in their evidence before the learned trial court nowhere stated regarding the political rivalry. It is not clear before this court when in a day time there was gutting of petitioner's house by fire why the co-residents of the petitioner were not examined by the police. The submission of Mr. Chakraborty, learned counsel for the accused persons (respondents No.2 to 13) that the petitioner falsely implicated the accused persons with the alleged crime as they belong to rival political party cannot be ruled out. 10. If on scrutiny of the evidence two inferences are possible then the court should accept the one which favours the accused and in a case of acquittal the appellate court should normally not interfere with the order of acquittal. Only when the judgment impugned is clearly unreasonable and the evidences available on record are relevant and convincing for the purpose of conviction and those materials have been unjustifiably eliminated in the process by the learned trial court then only the appellate court should interfere with the judgment of acquittal, [see Ram Das Vs. State of Maharashtra, (1977) 2 SCC 124 ; Devatha Venkataswamy @ Rangaiah Vs. Public Prosecutor, High Court of A. P., (2003) 10 SCC 700 ; State of Punjab Vs. Karnail Singh, (2003) 11 SCC 271 ; State of U.P. Vs. Babu & Ors., (2003) 11 SCC 280; and State of Haryana Vs. Shibu @ Shiv Narain & Ors., 2008 AIR SCW 5400.] 11. Public Prosecutor, High Court of A. P., (2003) 10 SCC 700 ; State of Punjab Vs. Karnail Singh, (2003) 11 SCC 271 ; State of U.P. Vs. Babu & Ors., (2003) 11 SCC 280; and State of Haryana Vs. Shibu @ Shiv Narain & Ors., 2008 AIR SCW 5400.] 11. In view of what have been stated above, this court is of the considered view that the instant revision petition is devoid of any merit. Accordingly, the same is dismissed.